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Proposed new access rights for Code operators

The government is currently consulting on proposed changes to the UK Electronic Communications Code (the “Code“), to make it easier for Code operators to access premises to install digital infrastructure enabling full fibre, gigabit-capable connections for the benefit of tenants. The consultation closes on 21 December 2018 and a link to the consultation can be found here.

Why is the government consulting?

While the UK has good superfast connectivity, “full fibre” network coverage is only available to around 5% of premises, compared with close to 100% in South Korea, for example. The consultation and proposed changes are part of a move to make the UK a hub for digital business.

The consultation follows the Future Telecoms Infrastructure Review, published in July 2018, which set out strategic priorities to deliver nationwide coverage of “gigabit-capable” broadband by 2033. One of the key barriers identified by Code operators was that some landlords are overseas or unidentifiable and do not engage with requests for entry to install digital infrastructure.

Currently, a Code operator needs formal permission from a landowner in order to enter premises and install digital infrastructure. The consultation reports that requests for entry go unanswered in up to 40% of cases. Code operators can apply to the Lands Chamber of the Upper Tribunal for permission to enter premises, but rarely use this route because of the time and expense required.

What is the government proposing?

The proposed changes aim at giving Code operators certainty and incentivising re-engagement by unresponsive landlords. The government proposes amending the Code so that landlords are obliged to facilitate installation of digital infrastructure on their premises where a tenant makes a request for service and an operator gives the landlord suitable notice.

The consultation also proposes allowing operators to seek a warrant of entry via a magistrates’ court. This reduces the period of time taken and the cost to obtain permission where a landlord does not respond. The existing right for operators to go to the Upper Tribunal will be reserved for cases which require the specialist knowledge of the Tribunal.

The proposed amendments are not intended to be alternatives to formal access arrangements. Once a landlord engages with the operator and negotiates an agreement, the temporary measures will fall away.

What does this mean for landlords?

It means that Code operators will be able to install digital infrastructure in premises without the need to obtain specific consent. This raises a number of concerns for landlords:

(a) Risers in buildings could become full of redundant cabling.  Whilst the Code contains provisions for the removal of apparatus, it is a “one size fits all” piece of legislation and does not specifically cater for wayleave agreements.  Wayleaves can be temporary in nature as the apparatus is usually only installed for the period that the tenant requesting the service is actually in occupation of the premises.  The issue could be exacerbated if operators could just install additional equipment.
(b) There could be complex property ownership structures which mean that the relevant landlord may not be easily ascertainable. This could mean that a landlord is not “absent and not engaging” but simply has not been notified.
(c) The landlord may need to juggle conflicting third party ownership rights over a property before granting access.  These competing rights should be taken into account if an operator applies for an access order.
(d) Although the proposed amendments are intended to be temporary measures, once an operator has access and has installed the equipment, what incentive will there be for  a Code operator to enter into a written agreement?

If the government’s proposals become law, landlords and agents will need to streamline their processes to ensure that requests for installation and upgrades of telecoms equipment do not go unanswered.  Not to do so could result in some surprise visitors.