Law Commission Report: The Electronic Communications Code

11 April, 2013

The Law Commission has recently published recommendations to revamp the Electronic Communications Code (the Code).

The Code was enacted in 1984 with the aim of striking a balance between the rights of telecoms companies to install, retain and maintain telecoms equipment on land owned by others on the one hand and the rights of the landowners themselves on the other.

The Code in its current form has been criticised by the courts and the people who work with it as being out of date, unclear and inconsistent with other legislation and so became the focus of review as part of the government’s superfast broadband strategy in September 2011.

The reforms that the Law Commission have specifically recommended are;

  • Leases granted for the purpose of conferring rights under the Code should not fall within the Landlord and Tenant Act 1954 but should continue unless terminated in accordance with a new termination process (this aims to remove the inconsistency between the Code and the Landlord and Tenant Act 1954);
  • Compensation paid to landowners by operators should be linked directly to the market values. It is hoped this will give landowners greater confidence in negotiating with operators, and give operators a better idea of what their network is likely to cost. It is hoped that this will ensure that landowners are not taken advantage of, and that operators are not held to ransom. This should give some balance to the issue of not prejudicing landowners rights against the public interest in having access to high quality communications services;
  • All agreements entered into under a revised Code should be assignable as of right. It is hoped this will assist operators in delivering the services and technology their customers demand, as assignment will enable rights to be transferred between operators much more efficiently.
  • Telecoms operators should have the ability to share or upgrade equipment without Landowner consent, but only where the operator had exclusive possession of a physical structure; the sharing or upgrading cannot be seen from outside the structure; and it imposes no burden on the Landowner.

More generally the Law Commission have recommended that the Code is updated to;

  • resolve the inconsistencies between the current Code and other legislation;
  • clarify the rights of landowners to remove network equipment from land;
  • improve the procedure for resolving disputes under the Code.

Whether these recommendations (if implemented) will bring the clarity and certainty to landowners and operators in this field remains to be seen but it is hoped that a revamped Code will provide a more user friendly method of regulating the installation and retention of telecoms equipment for both telecoms companies and landowners, which can only be a good thing.