Ofcom has published its revised Code of Practice updating its 'best practice' guidelines for parties dealing with Electronic Communications Code matters.
The existing Code of Practice has been in place since 2017 when the new Electronic Communications Code set out in Schedule 3A of the Communications Act 2003 ("the Code") came into force. It provides a guiding framework of procedures and best practice suggestions for both Code Operators and Site Providers to follow when engaging with Code matters, including conduct during negotiations of agreements and the performance of activities such as information sharing. Whilst parties are not legally bound by the Code of Practice, there is an expectation they will seek to adhere to its underlying principles of co-operation.
In 2023 Ofcom undertook an extensive review of the existing Code of Practice seeking recommendations from members of the National Connectivity Alliance, made up of Operators, infrastructure providers, landowners and their advisers, for proposed revisions to its drafting. Responses to Ofcom's consultation paper published in September 2023 have now been taken on board and a final version of the amended Code of Practice was published on 15 April 2024.
The revisions include clarifications on matters such as survey access requests, following the various judgments handed down by the Upper Tribunal since 2017, as well as statutory changes to the Code brought into effect by the Telecommunications Infrastructure (Leasehold Property) Act 2021 and the Product Security and Telecommunications Infrastructure Act 2022 ("PSTI Act").
Some of the key changes to the Code of Practice include:
- A new suggested protocol for responding to requests for access by Operators, which includes the use of alternative dispute resolution where possible to agree access arrangements without the involvement of the courts.
- A new section on the best practice for the sharing and upgrading of apparatus which encourages the parties to act reasonably and negotiate rights via Code agreements where possible without litigation. There is also a new section which deals specifically with the sharing and upgrading of underground apparatus, and the rights introduced by the PSTI Act.
- A new section highlighting the alternative dispute resolution ("ADR") procedures which are set out in the Code and suggested steps to facilitate their use.
- A new schedule setting out the suggested process for site surveys, including Multi Skilled Visits, and expanded practice points for access requests and access arrangements.
The underlying emphasis in the updated Code of Practice is that parties should be seeking to resolve disputes between themselves, preventing referrals to the courts where it can be avoided.
The conduct of parties remains a crucial factor in how quickly and cost efficiently matters under the Code can be resolved. Many will welcome this timely update on 'best practice' particularly given the new duty to consider ADR introduced by the PTSI Act from November 2023.
