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The New Electronic Communications Code

Fri, Jun 16, 2017

 Mobile mast (cropped)

A new Electronic Communications Code has been proposed as part of the Digital Economy Act 2017 and will receive Royal Assent just before the dissolution of Parliament for the general election.  

The new code isn’t yet in force, but the granting of Royal Assent brings the new code one step closer. In essence, the Government considers that mobile technology should be on par with other utility operators, and much of the new code is about simplifying processes for network operators.

Here are some of the key changes the new code will bring:

Agreements

Operators will still need an owner’s agreement to have a mast site on any particular piece of ground, however once they have this the new code will allow the operators extensive rights. For example; to install equipment, and keep it there (against the owner’s wishes), to access the land and repair, to upgrade equipment, to prevent others taking access and connect into a power supply.  To some extent most of this is familiar, but a lease entered into under the new code means there is no scope to agree specific terms.

An operator is entitled to apply to the Court for an order imposing an agreement on a landowner if the owner does not agree the terms proposed within 28 days.  The Court is to assess whether the prejudice which will be suffered by the owner can be compensated financially, and is to weigh the prejudice against the public benefit.  If the public interest outweighs the prejudice suffered, and the prejudice can be compensated by payment of money, an order will be granted.  

Rent 

The new code provides that rents for new mast sites will be the market rent, but based on a "no scheme" valuation basis. This means that the rent and any compensation payments will be based on the value of the land to the owner for its current use, ignoring the “development value” of the mast.  Rents and compensation payments to landowners will therefore fall. 

Assignation and Site sharing 

Under the new code, network operators will be free to upgrade equipment and to share use of equipment with other operators, meaning the practice of paying “site-share” rents will end.

Contracting out 

It is not possible to contract out of the new code, however it is not retrospective and will not apply to existing sites.  Any existing arrangements, including site sharing fees, will remain until the existing lease comes up for renewal.  It is likely however that operators will seek to terminate existing leases and seek an agreement under the new code at the earliest opportunity so as to benefit from the enhanced rights the new code gives them.

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