Changes to the Electronic Communications Code

Section 68 and 69 of the Product Security and Telecommunications Infrastructure Act 2022 (“the PSTI”) came into force at the end of last year on the 7^th of November.

One of the issues which the PSTI aims to tackle is the struggle experienced by landowners and operators in negotiating terms where operators wish to install, use and upgrade telecommunications equipment on privately owned land. This has resulted in a flurry of Tribunal decisions on matters concerning the Electronic Communications Code (“the Code”) since this originally came into force on 28 December 2017.

Here we explain what the changes are and what the impact may be:

1.  Interim orders while an application is pending

The new provisions in section 68 of the PSTI make changes to the arrangements pending determination of an application under Paragraph 32 or 33 of the Code for an order to be made by the Tribunal under Paragraph 34.

An application under Paragraph 32 may be made to the Tribunal by an operator when a site provider requests that an agreement comes to an end, but the operator wants it to continue. An application under Paragraph 33 may be made to the Tribunal by either an operator or site provider who wishes to change the conditions of an agreement which has expired, and the parties cannot agree terms.

Whilst the parties are awaiting final determination by the Tribunal following an application for an order under Paragraph 32 or 33, the operator or the site provider can now apply to the Tribunal for an interim order (i) specifying the payments of consideration to be made by the operator to the site provider, or (ii) otherwise modifying the terms of the existing agreement. These temporary orders can have effect from the date the application is made until the application has been determined.

What is the impact on site providers?

Section 68 of PSTI could have an adverse effect on site providers who are currently still receiving a high rent from operators under existing agreements which were entered into before the Code came into force because those rents could now be reduced from the date of the operator’s application to the Tribunal rather than from the date of the Tribunal’s decision. In addition, it could mean that consensual agreements are more likely to be entered into quickly as there is no longer any benefit to site providers procrastinating.

2.  Alternative Dispute Resolution

The new section 69 of the PSTI encourages the use of Alternative Dispute Resolution (“ADR”). The amendments introduce a new requirement for operators to provide information about ADR when serving certain notices under the Code so that site providers know that disputes can be dealt with without the need to proceed to Tribunal. In addition, operators and site providers will be required to consider the use of ADR to reach agreement with the other party, if reasonably practicable to do so, before making certain applications to the Tribunal.

Section 69 also amends Paragraph 96 of the Code to require the Tribunal, when making an order as to expenses, to consider any unreasonable refusal by either party to engage in ADR.

What is the impact on site providers?

This increased focus on ADR may mean that disputes can be resolved more quickly and cost-effectively through the use of mediation or other forms of ADR, rather than always ending up in the Tribunal.

Harper Macleod has significant expertise in representing landowners in both contentious and non-contentious telecoms matters so please do not hesitate to get in touch if you require assistance with any such issues.