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Product Security And Telecommunications Infrastructure 2022

Contents

Part 2: Telecommunications Infrastructure

Section 57: Rights under the electronic communications code to share apparatus

  1. This Section amends various paragraphs of the Code in relation to operators’ ability to share the use of their electronic communications apparatus with other operators.
  2. Subsection (2) inserts into paragraph 3 of the Code provisions to make the right to share electronic communications apparatus a specific Code right. It also makes corresponding changes to the rights to carry out works on the land and to enter the land so that they reference these activities being carried out for the purpose of sharing such apparatus. If such a right is agreed or imposed, the Code agreement may include any such terms as are needed to enable the right to be exercised. The provisions make clear that the right to share is a right available solely to an operator keeping apparatus on land in accordance with a Code agreement (the "first operator"). The right, where agreed or imposed, provides the first operator with permission to share that apparatus with others. It does not give other operators the right to require the first operator to share that apparatus. As with the other Code rights, a Code right to share apparatus will only be exercisable in accordance with the accompanying terms (see paragraph 12(1) of the Code). Subsection (4) deals with terms relating to sharing.
  3. The statutory purposes at paragraph 4 of the Code have been amended at subsection (3) to reflect the new right to share in paragraph 3 of the Code.
  4. Subsection (4) amends paragraph 9 of the Code to make clear that an agreement under Part 2 of the Code can potentially include terms - subject to whatever is agreed by the parties or imposed by a court - permitting the first operator to share the exercise of its Code rights with another operator, in connection with the sharing of the first operator’s electronic communications apparatus.
  5. Subsection (5) confirms that the new Code rights inserted into paragraph 3 do not automatically apply to existing agreements under Part 2 of the Code, and also do not affect any rights already granted in an agreement under Part 2 of the Code.

    Example: Sharing apparatus between operators

    Operator 1 has a Code agreement with a site provider permitting them to install apparatus on the site provider’s land.

    Operator 1 is aware that once their apparatus has been installed, other operators may wish to share the use of it. Under the new paragraph 3, they ask for a right to share their apparatus with others. The site provider agrees that they may have this right, subject to the payment of additional consideration if the sharing involved goes beyond the degree of activity permitted by the paragraph 17 automatic rights to share.

    Operator 1 subsequently enters into a commercial agreement with Operator 2, permitting Operator 2 to share use of the installed apparatus. This enables Operator 2 to expand their network without having to carry out non-essential installation works. In most cases, Operator 2 will need to access the relevant land in order to install their own equipment on Operator 1’s apparatus. Operator 1 must have authority to permit this access, under the terms of their Code agreement with the site provider, or as a result of their own occupation of the land.

Section 58: Upgrading and sharing of apparatus: subsisting agreements

  1. This Section amends Schedule 2 of the Digital Economy Act 2017 (the Electronic Communications Code: Transitional Provision) to allow operators who have subsisting agreements to upgrade and share apparatus in some circumstances. A "subsisting agreement" is defined in paragraph 1 of Schedule 2 to the Digital Economy Act 2017 as an agreement (which was in force when the Code came into force) for the purposes of paragraphs 2 or 3, or an order under paragraph 5, of schedule 2 to the Telecommunications Act 1984. Subsisting agreements are agreements concluded for those purposes before 28 December 2017, when the Digital Economy Act 2017 came into force.
  2. Subsection (3) removes the exemption in paragraph 5 of Schedule 2 to the Digital Economy Act 2017 for upgrading and sharing rights in relation to a subsisting agreement. Parties with subsisting agreements may not use the automatic rights to upgrade and share as set out in paragraph 17 of the Code. Instead, subsisting agreements are subject to the more restrictive rights to upgrade and share apparatus set out in paragraph 5A inserted into Schedule 2 to the Digital Economy Act 2017 by subsection (4).
  3. This applies a modified version of the existing paragraph 17 of the Code ("the modified paragraph 17") to subsisting agreements. The narrower conditions in the modified paragraph 17 mean that the rights are limited to apparatus installed under land, and are only exercisable where (a) the upgrading and sharing activity will have no adverse impact on the land under which the apparatus is situated; and (b) the upgrading and sharing activity will impose no burden on the other party to the agreement, which includes anything that has an adverse effect on that person’s enjoyment of the land or causes them any loss, damage or expense.
  4. The exercise of these rights is subject to a notice requirement, which requires the main operator to affix a notice in a secure and durable manner, on a conspicuous object on the relevant land. The notice may be affixed by either the main operator or an operator acting under the authority of the main operator in the exercise of the main operator’s right to carry out the relevant works. This has to be done no later than 21 days before the upgrading and sharing works take place. The modified paragraph 17(12) states that relevant land is either the land on which the apparatus is situated, where the operator has a right to enter the land, or in all other cases, the land where the works will be carried out to enable the upgrading and/or sharing of the apparatus to take place.
  5. The modified paragraph 17(7) sets out the manner in which the notice must be attached. The modified paragraph 17(8) confirms that any address provided by an operator within a modified paragraph 17(7) notice will be treated as the proper address for any subsequent notices or other documents in accordance with paragraph 91(2) of the Code.
  6. The modified paragraph 17(9) makes clear that any terms in a subsisting agreement that prevent, limit or in any other way impose conditions on the rights to upgrade and share electronic communications apparatus where the conditions in the modified paragraph 17(3) and (4) have been met will be void. The modified paragraph 17(10) confirms that the upgrading and sharing rights do not confer a right of entry onto the relevant land. This means that unless an operator already has a right of entry onto the land, it cannot use the rights contained in the modified paragraph 17 to undertake upgrading or sharing which requires entry onto the land.
  7. The modified paragraph 17(11) confirms that, as is the case for the current upgrading and sharing rights under paragraph 17 of the Code, references to sharing electronic communications apparatus include carrying out works to the apparatus to enable such sharing.

Section 59: Upgrading and sharing of apparatus installed before December 2003

  1. This Section inserts a new paragraph 17A into the Code, which confers on the main operator the right to upgrade and share relevant apparatus, subject to the same conditions as those contained in Section 59 above. It applies where the operator keeps apparatus (such as ducts and cables) that was installed prior to 29 December 2003 (the date on which Schedule 3 to the Communications Act 2003 came fully into force) under land, and where the operator is not a party to an agreement under Part 2 of the Code (which includes subsisting agreements).
  2. Subsection (4) amends paragraph 24 of the Code, which sets out how consideration is to be determined for an agreement imposed by an order under paragraph 20 of the Code. The amendment to the assumptions in paragraph 24(3) of the Code means that the new automatic right to share in paragraph 17A is not to be taken into account for the purposes of assessing the market value of a person’s agreement to confer or be bound by Code rights. This mirrors the provision in paragraph 24 of the Code which disregards the rights in paragraph 17 of the Code, and confirms that the valuation model remains the same notwithstanding the coming into force of paragraph 17A.

Section 60: Power to fly lines from apparatus kept by another operator

  1. This Section amends paragraph 74 of the Code to facilitate upgrading and sharing of relevant electronic communications apparatus.
  2. Paragraph 74 of the Code confers a right on operators who keep electronic communications apparatus on or over land ("main land") for the purposes of their network to install and keep lines connected to such apparatus over land ("neighbouring land") adjacent to, or in the vicinity of, the land on or over which such apparatus is kept. Such lines must be connected to the apparatus on the main land and be kept at a height of three metres or more above the ground and at a distance of more than two metres from any building over which they pass. The typical apparatus to which paragraph 74 applies is telegraph poles.
  3. Subsections (2) and (3) define the operator referred to in paragraph 74(1) of the Code who keeps the electronic communications apparatus on or over land as the "main operator". This is to distinguish between the main operator and other operators.
  4. Subsection (4) confers a right on operators other than the main operator to install and keep lines that are connected to the apparatus on the main land and that pass over neighbouring land. This is subject to certain conditions, including the same conditions applicable to the right in paragraph 74(2) of the Code. Subsection (4) effectively enables other operators to benefit from the sharing of apparatus (typically telegraph poles) kept by the main operator.
  5. Other operators are required to secure the consent of the main operator before exercising the right. The formal requirements for agreements set out in paragraph 11 of the Code do not apply to such consent.
  6. In addition to the right for other operators to install and keep lines, subsection (6) confers new rights on both the main operator (pursuant to paragraph 74(3A) of the Code) and other operators (pursuant to paragraph 74(3B) of the Code) to upgrade, or carry out works to, apparatus (typically telegraph poles) for the purposes of, or in connection with, the exercise of the right to install and keep lines. The rights in sub-paragraphs 74(3A) and (3B) can be used, for example, to install a box at the top of the telegraph pole connected to a line to complete a connection to a premises.
  7. The rights in sub-paragraph 74(3A) and sub-paragraph 74(3B) are subject to three conditions in sub-paragraph 74(3C) of the Code. First, such activities must have no more than a minimal adverse impact on the appearance of the apparatus. Second, such activities must have no more than a minimal adverse impact on the land on or over which the apparatus is kept. Third, such activities must cause no loss, damage or expense to any person with an interest in the land on or over which the apparatus is kept.
  8. Other operators are required to secure the consent of the main operator before exercising the rights in sub-paragraph 74(3B). Similarly, both the main operator and any other operator are required (pursuant to sub-paragraph 74(3D) of the Code) to obtain the consent of the occupier of the main land before accessing it to exercise these rights. The formal requirements for agreements set out in paragraph 11 of the Code do not apply to such consent. Obtaining the consent of any occupier of neighbouring land is not a requirement for the exercise of these rights.

Section 61: Rent under tenancies conferring code rights: England and Wales

  1. This Section applies to subsisting agreements (defined at paragraph 247 above) in England and Wales, entered into before 28 December 2017, which are currently subject to Part 2 of the Landlord and Tenant Act 1954 ("the 1954 Act"), and are consequently excluded from the renewal procedures contained in Part 5 of the Code by paragraph 6(2) of Schedule 2 of the 2017 Act.
  2. The 1954 Act only applies in England and Wales, and the following amendments therefore have no effect in relation to Scotland or Northern Ireland. The position in respect of Northern Ireland, which also has legislation excluding agreements from the operation of Part 5, is set out at paragraphs 261 to 263 below. There are no equivalent provisions in Scotland requiring amendment for these purposes. Therefore, sections 61 and 62 will ensure that the method of calculating rent under the different routes to renewal will be more consistent across the UK.
  3. If an agreement can be renewed using Part 5 of the Code, paragraph 34(11) provides that the valuation framework contained in paragraph 24 will apply in cases where a renewal agreement is imposed by a court order. This Section inserts a new section 34A into the 1954 Act so that where a subsisting agreement is renewed using the mechanism in the 1954 Act, and the primary purpose of that agreement is to grant Code rights, any rental terms of the renewal agreement will be determined by reference to provisions that mirror paragraph 24 of the Code. For completeness, separate provision dealing with the award of compensation, which is intended to mirror paragraph 25 of the Code, is made by Section 63, as discussed below.
  4. Subsections (3) and (4) of Section 61 amend sections 24C and 24D (respectively) of the 1954 Act so as to provide that subsections (2) to (4) of the new section 34A will also apply in cases where a court is asked under section 24C or 24D of the 1954 Act to determine whether an interim rent should be paid and how much this rent should be during the renewal process.

Section 62: Rent under tenancies conferring code rights: Northern Ireland

  1. This Section amends Article 18 of the Business Tenancies (Northern Ireland) Order 1996 ("the 1996 Order"). This Section applies to subsisting agreements in Northern Ireland, entered into before 28 December 2017, which are protected by the 1996 Order, and to which the Code’s Part 5 renewal procedure cannot therefore apply.
  2. As explained above, currently, where an operator is able to renew pursuant to Part 5 of the Code, the amount of rent payable to the site provider will be calculated in accordance with paragraph 24 of the Code.
  3. So as to provide an approach which is more consistent with that found in the Code, this Section inserts new Article 18A into the 1996 Order so that, where a subsisting agreement is renewed pursuant to the 1996 Order and the primary purpose of that agreement is to grant Code rights, the rent will be calculated in a way which mirrors the provisions in paragraph 24 of the Code. For completeness, there is also a provision relating to compensation, which is contained in section 64 below.

Section 63: Compensation relating to code rights: England and Wales

  1. This Section amends the 1954 Act by inserting section 34B, which is designed to mirror the compensation provisions in paragraph 25 of the Code and ensure that site providers have the same rights to compensation where a subsisting agreement is renewed under the 1954 Act, as they would if it was renewed under Part 5 of the Code. Under this provision site providers will be able to recover amounts for loss and damage which they have sustained or will sustain as a result of the operator exercising any Code rights conferred by the new tenancy.
  2. Section 63 also inserts a new section 34C into the 1954 Act, which sets out the types of loss and damage that can be awarded to the site provider by the court and how those sums will be calculated. It also limits the amount which the site provider can recover, so that the amount cannot exceed the site provider’s losses.
  3. Although paragraph 25 of the Code and this Section only apply where the terms of the renewal agreement are imposed by the court, the existence of these provisions (which make provision as to what a court could do in the absence of an agreement) will be a relevant factor to be considered in consensual negotiations. In the same way that the court could, as a result of this Section, make provision as to compensation, the parties to a consensual agreement can also agree equivalent terms in an agreement reached on a consensual basis.

Section 64: Compensation relating to code rights: Northern Ireland

  1. This Section amends the 1996 Order by inserting Article 18B, which is designed to mirror the compensation provisions in paragraph 25 of the Code and ensure that site providers have the same rights to compensation where a subsisting agreement is renewed under the 1996 Order, as they would if it was renewed under the Code. It mirrors the provisions in section 63 above, which applies to England and Wales, to ensure that there is consistency across the United Kingdom. Under this provision site providers will be able to recover amounts for loss and damage which they have sustained or will sustain as a result of the operator exercising their Code rights.
  2. The provision also inserts a new Article 18C into the 1996 Order, which sets out the types of loss and damage that can be awarded to the site provider by the court and how those sums will be calculated. It also limits the amount which the site provider can recover, so that the amount cannot exceed the site provider’s losses.
  3. Although paragraph 25 of the Code and this Section only apply where the terms of the renewal agreement are imposed by the court, the existence of these provisions (which make provision as to what a court could do in the absence of an agreement) will be a relevant factor to be considered in consensual negotiations. In the same way that the court could, as a result of this Section, make provision as to compensation, the parties to a consensual agreement can also agree equivalent terms in an agreement reached on a consensual basis.

Section 65: Jurisdiction of court in relation to tenancies in England and Wales

  1. This Section inserts new subsections (2A) to (2C) into section 63 of the 1954 Act. The new subsection (2A) gives the Secretary of State power to make regulations that enable cases under Part 2 of the 1954 Act, where the primary purpose of a subsisting agreement is to grant Code rights, to be heard in either the First-tier Tribunal or the Upper Tribunal. This, together with the amendment made by Section 70 of this Act, will enable the Secretary of State to provide that all disputes in England and Wales relating to code rights fall within the jurisdiction of the same courts. A change to this effect is not required in relation to the 1996 Order, since disputes under that Order are already dealt with by the Lands Tribunal in Northern Ireland. Any regulations made by the Secretary of State under the power in the new subsection (2A) will be subject to the affirmative resolution procedure.

Section 66: Refusal of application for code rights on grounds of national security etc

  1. This Section applies where an operator applies to the court for an order under paragraph 20, 26 or 27 which would impose an agreement between the operator and another person. The court must refuse the application if the Secretary of State gives a certificate to the court certifying that the condition in subparagraph (3) is met.
  2. The condition is that the Secretary of State is satisfied that the order applied for by the operator would be likely to prejudice national security, defence or law enforcement.

Section 67: Unresponsive Occupiers

  1. This Section inserts Part 4ZA into the Code. Part 4ZA makes provision for the courts to confer time-limited rights on an operator who has made repeated requests for Code rights for the purpose of providing an electronic communications service, and the occupier (as defined in paragraph 105 of the Code) or another person with an interest in that land has failed to respond.
Paragraph 27ZA: Introductory
  1. This paragraph explains that Part 4ZA makes provision for the court to impose an agreement which allows operators to exercise Code rights in specific conditions. These rights are for the purpose of providing an electronic communications service (defined in section 32 of the 2003 Act) to relevant premises where the occupier or another person with an interest in the relevant land has not responded to repeated notices seeking agreement to confer or otherwise be bound by the Code rights sought.
Paragraph 27ZB: Circumstances in which an application for an order under this Part can be made
  1. Sub-paragraph (1) sets out the circumstances in which an application for an order under Part 4ZA can be made. Specifically:
    1. the operator must intend to provide an electronic communications service to relevant premises;
    2. in order to provide that service, the operator must need to install electronic communications apparatus under or over - but not on - the relevant land;
    3. in order to install and operate that apparatus, the operator must require a person (referred to in this Part as "the required grantor") to agree to either confer on the operator a Code right in respect of "relevant land" or be bound by such a Code right exercisable by the operator;
    4. the operator must have given the required grantor a notice (in accordance with paragraph 20(2) of the Code, which sets out what a request notice must contain) seeking that agreement (referred to as a "request notice"); and
    5. the required grantor must have not responded to the operator.
  2. Sub-paragraph (2) sets out the circumstances when paragraphs 27ZC and 27ZD (which provide for requirements to be met before a Part 4ZA order can be made) do not apply: (a) where the relevant premises falls within the scope of Part 4A and (b) where the relevant land is a "connected land" as defined under paragraph 27B(3) of the Code. This serves to make clear which process - Part 4A or Part 4ZA - should be used, depending on the land which an operator is seeking to access.
  3. "Relevant land" is defined in sub-paragraph (3)(a) as meaning land which is any land other than land covered by buildings or used as a garden, park or other recreational area.
  4. Sub-paragraph (3)(b) provides for the making of regulations by the Secretary of State to modify the definition of "relevant land", expanding it so as to include specified types of land that is covered by buildings or used as a garden, park or other recreational area.
  5. Sub-paragraph (4) provides that, before making regulations modifying the definition of relevant land, the Secretary of State must consult various parties, including operators, persons appearing to the Secretary of State to represent owners of interests in land who are likely to be affected by the regulations, and any other person the Secretary of State thinks appropriate.
  6. Sub-paragraph (5) makes provision for what constitutes a response by the required grantor. Any engagement in writing - including agreement to the request notice, refusal of it, or any other response to the request notice - by the required grantor with the operator constitutes a response for these purposes.
Paragraphs 27ZC and 27ZD: Requirements to be met before applying for an order under this Part
  1. Paragraph 27ZC makes provision about the requirements which an operator has to meet before applying to the court for an order under the new Part 4ZA.
  2. Sub-paragraph (1) provides that an operator may not apply for a Part 4ZA order unless it has given the required grantor: (a) two warning notices, and (b) a final notice. These notices are in addition to the initial "request notice" required by 27ZB(1)(d).
  3. Sub-paragraph (2) sets out that a warning notice must be in writing and what that notice must contain.
  4. Sub-paragraph (3) provides that the first warning notice may only be given after the end of the period of 14 days beginning with the day on which the "request notice" was given.
  5. Sub-paragraph (4) provides that the second warning notice may only be given after the end of the period of 14 days beginning with the day on which the first one was given.
  6. Sub-paragraph (5) sets out that a final notice must be in writing and what that notice must contain.
  7. Sub-paragraph (6) provides that a final notice may only be given within the "permitted period". This period is defined in sub-paragraph (7) as beginning (a) immediately after the end of the period of 14 days beginning with the day on which the second warning notice was given, and (b) ends at the end of the period of 28 days, beginning with the day on which the second warning notice was given. Taken together, this provides a 14 day window in which a final notice may be given.
  8. Sub-paragraph (8) provides power for the Secretary of State to specify by regulations any further conditions that an operator will need to satisfy before issuing a final notice.
  9. Sub-paragraph (9) provides that where the word "specified" is used in this paragraph, the item in question may be specified in regulations by the Secretary of State. Items in this paragraph which are "specified" are 1) additional information which must be included in a "warning notice", 2) additional information which must be included in a "final notice", and 3) the time period within which the required grantor must respond to the final notice.
  10. In paragraph 27ZD, sub-paragraph (1) sets out when an operator is able to apply to the court for a Part 4ZA order. This includes requirements that there has been no previous Part 4ZA order imposing an agreement between the operator and the required grantor in respect of the code rights sought in the request notice, that the operator has met all the requirements related to provision of notice to the required grantor, including giving sufficient time for the required grantor to respond, the required grantor has not responded to the operator and the operator has met the specified conditions (see sub-paragraph (6)).
  11. Sub-paragraph (2) provides that an application for a Part 4ZA order must be accompanied by the evidence specified in any regulations made by the Secretary of State.
  12. Sub-paragraph (3) provides that an application may not be made after the end of the specified period (which will be set out in regulations made by the Secretary of State).
  13. Sub-paragraph (4) provides that the operator must give notice to the required grantor that it has applied for a Part 4ZA order.
  14. Sub-paragraph (5) makes provision for what constitutes a response by the required grantor. Any engagement in writing by the required grantor with the operator constitutes a response for these purposes.
  15. Sub-paragraph (6) provides that where the word "specified" is used in this paragraph, the item in question may be specified in regulations by the Secretary of State. Items in this paragraph which are "specified" are 1) additional conditions which an operator must satisfy before applying to the court for a Part 4ZA order, 2) evidence which must accompany an application, as described in sub-paragraph (2), and 3) the time after which an application may no longer be made, as described in sub-paragraph (3).
Paragraph 27ZE: When a Part 4A order can be made and its effect
  1. Sub-paragraph (1) provides that the court may make a "Part 4ZA order" if (and only if) (a) the requirements for applying for the order have been met and (b) the required grantor has not objected to the making of the order.
  2. Sub-paragraph (2) provides that a Part 4ZA order is an order which imposes an agreement between the required grantor and the network operator by which the required grantor confers specific code rights identified in the request notice in respect of the relevant land, or which provides for the code right identified in that notice in respect of the relevant land, to bind the required grantor.
  3. Sub-paragraph (4) provides that the terms of an agreement imposed by a Part 4ZA order are restricted to those specified in regulations. Those regulations will be made by the Secretary of State subject to the affirmative resolution procedure.
  4. Sub-paragraph (5) sets out the terms of the agreement which must be set out in regulations made by the Secretary of State. These include: restricting the operators right to enter land to agreed times except in cases of emergency, imposing requirements on operator’s insurance cover and indemnification of the required grantor, imposing requirements to restore the land when any works are completed and prohibiting the installation of apparatus on land when the intent is to later install apparatus over or under it.
  5. Before making regulations, as set out in sub-paragraph (6), the Secretary of State must consult various parties, including representatives of owners of interests in land who the Secretary of State considers are likely to be affected by the regulations.
Paragraph 27ZF: Expiry of Part 4ZA code rights
  1. Sub-paragraph (1) provides for the circumstances in which a Part 4ZA Code right (defined under paragraph 27ZE(3) as code right which is conferred by or otherwise binds the required grantor pursuant to an agreement imposed by a Part 4ZA order) ceases to be conferred on the network operator. Instances where a Part 4ZA Code right will no longer apply are a) where a replacement agreement (as defined under sub-paragraph (2)) comes into effect, b) where the court refuses an application by the operator for imposition of a replacement agreement, or c) where the right has not ceased to have effect due to a) or b), at the end of period specified in the agreement as the period during which the Part 4ZA Code right would have effect (see sub-paragraph (3)).
  2. Sub-paragraph (3) provides that "the specified period" is the period of no more than six years, with the actual period to be specified by the Secretary of State in regulations. Those regulations are subject to the negative resolution procedure. The effect of sub-paragraph (3) is that Part 4ZA Code rights will (unless brought to an end sooner, due to the circumstances described in 27ZF(1)(a) and (b) above) cease to have effect at the end of a period lasting no more than six years.
  3. Sub-paragraph (4) provides that the required grantor has a right to require the operator to remove the apparatus (subject to Part 6 of the Code) placed under or over the relevant land, when the Part 4ZA order has ceased to have effect or otherwise to bind the required grantor.
Paragraph 27ZG: Compensation
  1. Sub-paragraph (1) sets out that this paragraph applies after a court has made a Part 4ZA order.
  2. Sub-paragraph (2) provides that, if an application for the operator to do so is made by the required grantor, the court may order an operator to pay compensation to the required grantor for any loss or damage sustained, or that will be sustained by the latter, as a result of the exercise by the former of a Part 4ZA Code right.
  3. Sub-paragraph (3) provides that a court may make an order to pay compensation at any time after the Part 4ZA order has been made, including at a time after the Part 4ZA ceases to apply.
  4. Sub-paragraph (4) provides that an order made under this paragraph can either a) specify the amount of compensation that the operator should pay, or b) give directions for how an amount of compensation should be determined.
  5. Sub-paragraph (5) provides that if the approach described above at (4)(b) is taken, these directions may provide for the amount of compensation to be agreed between the operator and required grantor, or for a dispute about the amount of compensation to be settled through arbitration.
  6. Sub-paragraph (6) provides that a compensation order may require the operator to pay compensation in several ways, including making a lump sum payment, periodical payments, on the occurrence of a particular event, or in another form the court sees fit to direct.
  7. Sub-paragraph (7) provides that paragraph 84 of the Code (compensation where agreement is imposed or apparatus removed) makes further provision about compensation where a Part 4ZA order has been made.
Paragraph 27ZH: Interpretation of this Part
  1. This paragraph sets out the interpretation of various key terms in Part 4ZA of the Code, including "request notice", "premises" and "required grantor".

Section 68: Arrangements pending determination of certain applications under code

  1. This Section amends paragraph 35 of the Code so that in cases where one of the parties has applied for an order seeking the renewal or termination of the existing Code agreement (to which Part 5 of the Code applies), either party may apply to the court for an interim order, pending determination of the full application.
  2. Such an application may seek interim changes to any of the terms of the agreement, including the financial terms. This is in contrast to the present position, which only permits such applications in relation to expired agreements (i) in respect of the consideration to be paid pending a full determination; and (ii) to be made by a site provider. The Section inserts a new sub-paragraph (4) into paragraph 35, which sets out the factors that the court will need to consider when making the order. These include the operator’s business and technical needs and the site provider’s use of the land.

Section 69: Use of alternative dispute resolution

  1. Part 4 of the Code sets out a process through which an operator can apply to the court seeking code rights to be conferred by, or binding on, a person. The process is commenced by an operator serving a notice pursuant to paragraph 20 of the Code on the person. This "paragraph 20 notice" must set out the code right, the land to which it relates, the other terms of the agreement being sought, and that the operator is seeking the person’s agreement.
  2. Subsection (2)(a) inserts a new sub-paragraph (2A) into paragraph 20 of the Code, requiring operators to provide information about alternative dispute resolution (ADR) with the paragraph 20 notice. ADR may then be an option if an agreement cannot be reached. By placing information regarding ADR in the paragraph 20 notice, it informs the person that disputes can be dealt with without the need to proceed to court. The person is therefore informed that if an agreement cannot be reached, they may be able to go down the route of ADR to try and resolve the matter.
  3. New sub-paragraph (2A)(b) also requires the operator to inform the person of the potential consequences of refusing to engage in ADR, namely that the courts can take into account any unreasonable refusal to engage in ADR when deciding on what costs order to make at the end of the proceedings (as provided for by Section 69(5) of the Act, see below).
  4. Subsection (2)(b) inserts new sub-paragraphs (5) and (6) into paragraph 20 of the Code so that, where the operator and the person are unable to reach an agreement, there is an additional obligation on the operator to, if reasonably practicable, consider the use of one or more forms of ADR before it makes an application to the courts. If the operator fails to comply with this provision and an application is made to the courts, the courts can consider that failure when deciding on the appropriate costs order. At any time, if the operator or the person decides that they would like to engage in ADR, they can notify the other in writing.
  5. Subsections (3) and (4) insert similar ADR provisions into Part 5 of the Code. Under paragraph 32 of the Code, as amended by subsection (3), an operator will be required to inform a site provider of the availability of ADR and potential costs consequences of not engaging, when serving a counter-notice. Again, the operator is required to consider ADR, if it is reasonably practicable to do so, before issuing court proceedings under paragraph 32(1)(b) of the Code. Under this procedure, if at any time either the operator or the site provider decides that it would like to engage in ADR then it can notify the other party in writing. Under paragraph 33 of the Code as amended by subsection (4), the operator will be required to include in its notice details of the availability of ADR, and potential costs consequences of not engaging in that process. This procedure differs from that in subsection (3) as here in subsection (4) either party (not just the operator) must consider, where reasonably practicable to do so, whether the use of ADR would be appropriate, before issuing court proceedings under paragraph 33(5) of the Code. This is because unlike proceedings under paragraph 32(1)(b), proceedings under Paragraph 33(5) may be issued by either the operator or the site provider. If at any time the operator or the site provider decides that it would like to engage in ADR, it can notify the other party in writing.
  6. Subsection (5) amends paragraph 96 of the Code to place a duty on the court to consider any unreasonable refusal by either party to engage in ADR when making an order as to costs or, in Scotland, expenses.

Section 70: Complaints relating to the conduct of operators

  1. This Section places an obligation on Ofcom to include guidance, concerning how operators handle complaints about their conduct, in a code of practice published under paragraph 103 of the Code.

Section 71: Jurisdiction of First-tier Tribunal in relation to code proceedings in Wales

  1. This Section amends paragraph 95 of the Code. Currently, paragraph 95 gives the Secretary of State power to confer jurisdiction for Code disputes on both the First-tier Tribunal or the Upper Tribunal in relation to England, but only on the Upper Tribunal in relation to Wales.
  2. This Section amends the Secretary of State’s power so that they can confer jurisdiction for Code disputes on the First-tier Tribunal, as well as the Upper Tribunal, in relation to Wales.

Section 72: Power to impose time limits on the determination of code proceedings

  1. This Section inserts a new section 119A into the 2003 Act, providing the Secretary of State with a power to specify in regulations a time period within which specified proceedings on applications made under the Code must be determined. The effect of such regulations may include the extension or removal of any time limits, or the application of different time limits to different types of proceedings, provided such proceedings are of the type described in the new section 119A(2). The new section 119A(3) makes clear that, in exercising this power, the Secretary of State is able to amend or revoke existing provision made by the Electronic Communications and Wireless Telegraphy Regulations 2011 (SI 2011/1210). The Section also ensures that the power conferred by the new section 119A includes a power to amend or repeal certain signposts in primary legislation which might otherwise be rendered obsolete by the exercise of that power.

Section 73: Rights of network providers in relation to infrastructure

  1. This Section inserts a new section 148A into the 2003 Act.
  2. Subsection (1) of the new section 148A confers power on the Secretary of State to make regulations concerning the rights of network providers in respect of relevant infrastructure required for the purpose of facilitating the development of public electronic communications networks.
  3. Subsection (2) of the new section 148A, read with subsections (3) and (4), provides that such regulations may make provision, among other things:
  4. requiring a person to grant the network provider access to relevant infrastructure if specific conditions are met;
    1. requiring a person to provide the network provider with information concerning the relevant infrastructure for specific purposes, provided specific conditions are met;
    2. in relation to the carrying out of works of a specified description on such infrastructure;
    3. about requests by network operators for rights conferred by the regulations, including the procedure for making a request, the form in which the request is to be made, the grounds on which a request can be refused, a duty on a minister to give an opinion if such a request is refused and provision as to what effect such an opinion will have, including whether it can be binding on specific persons in specific circumstances (see subsection (3));
    4. about how information provided pursuant to the regulations is to be treated;
    5. about disputes arising under the regulations, including the procedure for dealing with those disputes, the appointment of a person to determine such disputes and the powers which they will have, the time limits for determining such a dispute and how appeals of such decisions will be dealt with (see subsection (4)); and
    6. requiring a specified person to give guidance on the regulations and how such guidance should be published, whether particular persons should be consulted before guidance is given and how often the guidance and the regulations should be reviewed.
  5. Subsection (5) of the new section 148A makes provision in respect of Crown interests in land, while subsection (6) provides that, in particular, any regulations made under subsection (1) may amend, vary or revoke any provision made by the Communications (Access to Infrastructure) Regulations 2016 (SI 2016/700).
  6. Subsection (7) of the new section 148A provides that, before making regulations under subsection (1), the Secretary of State must consult Ofcom and such other persons the Secretary of State considers appropriate.
  7. Subsection (8) of the new section 148A provides that regulations made under subsection (1) are subject to the affirmative resolution procedure.
  8. Subsection (9) of the new section 148A provides definitions of various key terms used in this new section.

Section 74: Power to make consequential amendments

  1. This Section provides the Secretary of State with a power to, by regulations, make amendments to legislation, including primary legislation made before or during the same session of Parliament as this Act, that are consequential on Part 2 of this Act. Any regulations that amend or repeal primary legislation, as defined in subsection (3), are subject to the affirmative procedure. Any other regulations under this section are subject to the negative procedure.

Section 75: Meaning of "the electronic communications code"

  1. This Section clarifies that references to "the electronic communications code" in the Act are to the Code.

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