Telecoms: The Product Security and Telecommunications Infrastructure Act 2022 has been passed

Following lengthy consultation with stakeholders, the Product Security and Telecommunications Infrastructure Bill was introduced on 21 November 2021 to parliament and finally received Royal Assent on 6 December 2022. It is hoped amendments to the Electronic Communications Code (“Code”) will provide clarity and reduce the tension between operators and landowners which is currently delaying digital roll out

When introduced, the Bill promised to amend the Code to support the quick and efficient rollout of gigabit-capable broadband and 5G networks to businesses and households in a way that balances the interests of landowners, telecoms operators and the public.

This is the first wholescale amendment to the Code which was only introduced in 2017 and follows extensive consultation with numerous stakeholders. Three problem areas were identified which, taken together, were leading to extensive delays in renewal agreements being completed:

1. Difficulties when negotiating requests for rights to install, use and upgrade telecoms infrastructure;
2. Occasionally, landowners were failing to respond to requests from telecoms operators; and
3. A lack of clarity and consistency in the procedures and frameworks applicable to renewal agreements. This caused uncertainty as to how some agreements should be renewed, and in some situations, operators could not obtain a new agreement even where apparatus is in place.

We shall be monitoring the changes introduced carefully and whether these reforms will encourage a more commercial approach to negotiations between operators and landowners or simply provide fresh ground for litigation. 

In summary, the Act introduces:

• A new duty for operators to consider using Alternative Dispute Resolution to settle disputes before making a court application. Operators must make landowners aware that ADR is an available option. The courts will be required to take account of any unreasonable refusal to engage in ADR when awarding costs.
• Limited rights for operators to upgrade and share equipment installed before the 2017 Code, provided there is no material impact on the owner or occupier of private land.
• Amendments to the Landlord and Tenant Act 1954 to align the procedures more closely with Part 5 of the Code. This includes dealing with disputed unopposed renewal agreements or where operators are seeking to impose a new Code agreement where the main aim of that agreement is to confer Code rights.
• A new right for operators in sole occupation under a previously expired Code agreement to seek a new agreement under Part 4 of the Code.
• A new procedure for operators to quickly obtain Code rights over certain types of land, where a landowner fails to respond to repeated requests for access.

Telecommunications Infrastructure (Leasehold Property) Act 2021

On a separate but related point, it is worth noting that an OfCom consultation closed on 7 December 2022 on proposed template notices resulting from the Telecommunications Infrastructure (Leasehold Property) Act 2021 under the Code.

This consultation relates to two new notices that operators may need to use under Part 4A of the Code to allow them access to multi-dwelling units where a customer has requested an electronic communication service but the landlord has failed to respond to access requests.

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