Electronic Communications Code: Update to improve digital coverage and connectivity

29th November 2021

Changes on the horizon: Commercial context

The Digital Economy Act 2017 introduced the Electronic Communications Code (the ECC) in December 2017.  The ECC was intended to aid the creation and operation of the telecommunications network by giving operators statutory rights. It updated the original Electronic Communications Code from 1984 (which initially dealt with the installation and maintenance of fixed-line communications networks) to include new forms of digital technology.

The ECC aims to keep up with the ever-progressing digital landscape, putting communications on the same footing as other essential utilities like water and energy. It regulates the relationship between network operators and site providers in the UK, establishing agreements to host and maintain electronic communications apparatus on both public and private land.  This is, of course, something which has become vitally important in recent years, first with the widespread use of smart phones and more recently with the exponential increase in home-working.

With this in mind, the Department for Digital, Culture, Media & Sport (DCMS) launched a consultation, between January and March 2021, on whether changes to the ECC are needed to support digital coverage and connectivity.

Having received over 1200 responses, largely from landowners, the general public, telecoms operators and professional bodies, the UK government has now announced that, as soon as Parliamentary time allows, it will introduce primary legislation to change the ECC in line with the responses received to the consultation. On 24 November 2021, therefore, the Product Security and Telecommunication Infrastructure Bill (the Bill) was introduced to the House of Commons.

What do landowners and telecoms operators need to know?

The key proposed changes and anticipated outcomes are as follows:

• Unresponsive landowners: New rules which would allow operators to secure ECC rights more quickly and cheaply through the courts, side-stepping landowners who do not respond to repeated requests for permission. This change aims to create a faster process and reduce connectivity gaps where landowners fail to respond.
• Renewals: Where operators already have infrastructure installed under an expired agreement, they will have the right to either renew on similar terms or request a new agreement. This is intended to speed-up renewal negotiations.
• Upgrading/sharing: Operators will have automatic rights to upgrade and share underground equipment (such as fibre optic cables) installed prior to the ECC reforms which are not currently covered. This will only apply where there will be no impact on private land nor any burden on the site provider.
• Dispute resolution: Telecoms operators will be required to consider the use of Alternative Dispute Resolution (ADR) [1] in cases where there are difficulties in agreeing terms. In addition, operators will be required to explain the availability of ADR as an option in their notices to landowners.
• Complaints: There will be a statutory requirement for operators to have a complaints procedure in place for dealing with conduct and complaints handling in respect of ECC agreements.

WM comment and how we can help

It is hoped that the changes proposed in the Bill will help with Project Gigabit, the new £5bn programme aiming to ensure that at least 85% of UK premises can access a 1Gbps capable network by the end of 2025; and with the existing Shared Rural Network project, which aims to extend geographic 4G mobile coverage to 95% of the UK in the same time frame.

Landowners will, however, need to be extra vigilant when it comes to responding to communications from operators and all parties will have to be alive to changes which affect their approach to ECC agreement negotiations, dispute resolution and complaints handling.  Walker Morris will continue to monitor the progress of the Bill and will report on key developments.

Our transactional Real Estate and specialist Real Estate Litigation teams are experienced and expert in acting for both landowners and occupiers/operators and will be happy to provide proactive strategic and practical advice in connection with any ECC-related communications and/or renewal negotiations.  Our teams are also well-versed in all aspects of ADR, including mediation and arbitration processes, and will be able to help resolve and document any ECC-related disputes as and when they do arise.

Please do not hesitate to contact us.

[1] ADR refers to the various different ways of resolving disputes that do not involve going to court (such as mediation or arbitration, for example).