Changes to the Code introduce new interim arrangements and alternative dispute resolution duties which will assist landowners and site providers.
The Product Security and Telecommunications Infrastructure Act 2022 ("the Act") supports the Government's roll out of high-speed broadband and 5G by amending the Electronic Communications Code ("the Code").
On 7 November 2023, two changes to the Code will take effect:
Interim arrangements
If an application is made by an Operator or a Site Provider for either the renewal or termination of an existing Code agreement (to which Part 5 of the Code applies), an order may now be made, on an interim basis, pending determination of the full application.
It will be possible to make applications for interim orders in relation to:
- The financial payment to be made to the Site Provider by the Operator under an existing agreement, potentially back-dated to the date of the application; and
- The modification of any other term of an existing agreement.
A duty to consider Alternative Dispute Resolution
The Act introduces a new duty on Operators to consider Alternative Dispute Resolution to resolve disputes or narrow issues before applying to court.
While the duty is only to consider using Alternative Dispute Resolution (i.e. there is no requirement to actually use Alternative Dispute Resolution), the Court will take into account any unreasonable refusal to engage when determining the extent and level of costs to be awarded.
Operators will also need to include information about Alternative Dispute Resolution when notices under the Code are served on Site Providers.
These amendments are introduced by the Product Security and Telecommunications Infrastructure Act 2002 (Commencement No.3) Regulations 2023 which bring into force Sections 68 and 69 of the Act.
Finally, a consultation led by OFCOM is considering updates to the Code of Practice. The existing Code of Practice provides a framework of suggested behaviours, protocols and considerations between Operator and Site Provider. The consultation is available here and closes on 7 November 2023.
The changes to the Code will be welcome news for landowners and site providers. The requirement to consider Alternative Dispute Resolution are designed and ought to discourage Operators from precipitously issuing proceedings, thereby reducing costs and encouraging negotiated settlements.
Our dedicated Telecoms team would be happy to assist with any queries.
