Hurdle

Proposal

Comment

Lack of engagement and collaboration from both site providers and operators

Introduce changes to OFCOM’s Code of Practice to encourage the use of Alternative Dispute Resolution (“ADR”), including:

1. Duty for operators to consider ADR before making any application to court

2. Require courts to take account of any unreasonable refusal to engage in ADR when awarding costs

These changes will apply to applications for new Code agreements, as well as negotiations regarding the renewal or termination of existing agreements.

Amendments are also proposed to the Code of Practice to deal with complaints handling and to impose statutory requirements on operators to have a formal complaints procedure in place.

The government stopped short of making the Code of Practice directly enforceable by statute, as it is intended to set out guidance for best practice and not specific requirements.

 It also decided against a specific fast track procedure for acquisition of Code rights and considered that suitable mechanisms were already in place for timely resolution of requests for new Code rights (the courts have a duty to determine these within 6 months, with scope for an operator to request prioritisation).

Non-responsive/ non-identifiable site providers

Temporary rights (of up to 6 years) for an operator after serving no less than four notices on an unresponsive site provider. If the site provider comes forward at any point before the rights are granted, the procedure ceases to apply.

Regulations to set out the types of land that the non-responsive procedure may be used for, the procedural steps to be followed and the evidence to be presented to the court.

This is based on the framework in the new Telecommunications Infrastructure (Leasehold Property) Act 2021, where operators can acquire rights against an unresponsive landlord of a multi-let building such as a block of flats. It is designed to reduce the costs and delay of rolling out infrastructure to a wider category of properties where an operator is dealing with a non-responsive party.

A separate consultation ran between June and August this year seeking views on the terms which will accompany the interim Code rights granted under this Act and we await the government’s response.

Operators in occupation under expired Code agreements granted under the old Code are shut out of the new Code

Amendments to the Code to provide that where an operator is already in occupation, it can still acquire Code rights from the site provider.

The Supreme Court is also due to consider this issue in a case coming to appeal in February 2022. It arises due to the drafting of the Code and the requirement for an operator to seek Code rights from the occupier of land. If they are already in occupation under an expired agreement then they are not eligible to use the transitional provisions in Part 5 of the Code, but also cannot grant themselves a new Code agreement. 

Automatic rights to share and upgrade apparatus are unclear

No changes to upgrading rights, but amendment to the Code to include a specific Code right for an operator to share his installed apparatus with others.

Any additional rights needed to give effect to the sharing right (such as rights of access) are to be left for negotiation between the parties or for the court to impose.

Automatic sharing and upgrading rights not retrospective for agreements granted under old Code

Restricted right for upgrading and sharing where the apparatus is under land and there is no adverse impact on the land or burden on anyone who has an interest in it. The right will be subject to detailed notice conditions.

Approximately 80% of fixed networks were installed under the old Code, so this will assist operators where no express upgrading or sharing rights in their existing agreements.

Lengthy delays to renewal disputes

All disputes can be started in the First Tier or the Upper Tribunal.

This aims to evenly distribute cases and assist more straightforward cases to be dealt with quicker.