What does the Motorola DynaTAC 800X and an iPhone 8 have in common? On a technology front, very little. However, they were both released in landmark years for the telecommunications industry. The Motorola in 1984, the year the Telecommunications Code (part of the Telecommunications Act) came into force to govern the relationship between landowners and telecoms providers wanting to put equipment on land.
Apart from minor amendments to the code, in 2003, it has remained unchanged while the telecommunications industry is unrecognisable. The iPhone, expected the be released in 2017, is an example of how much technology has changed. However, one only has to look around to see how dependant the world is on mobile phones which is driving a demand for greater network coverage by telecoms operators/providers. That, in part, has resulted in the government introducing a new Electronics Communication Code (as part of the Digital Economy Act) which will come into force later this year. Perhaps this will herald the end of “nomophobia”, a fear of being out of mobile phone contact.
The new code deals with how telecoms operators/providers are allowed to install and maintain electronic communications apparatus on public land.
As lawyers, we can deal with new formalities for documenting the code but there are some interesting points for both providers and landowners to bear in mind.
- Leases/licences or any agreement within the code will not benefit from security of tenure under the Landlord & Tenant Act 1954.
- Code rights will bind new owners of land, even if leases/agreements are not registered at the Land Registry.
- The Code gives operators the right to share sites with other operators and/or assign rights without a landowner’s consent.
- Operators will be able to upgrade installations under the Code (subject to upgrades having an adverse visual impact or additional burden on the land).
- Rents paid by providers/operators are likely to fall. Rent will be calculated on the basis of the land/site’s value to a landowner (not the operator).
- Consequently, it will be less attractive for landowners to rent out roof space to telecoms providers/operators but the court can impose a code agreement on a landowner.
- Landowners should therefore try and conclude negotiations under the existing code as soon as possible for the current valuation methodology to apply.
- There is a two stage approach to terminating an agreement and getting equipment removed which initially requires a minimum 18 month termination notice. Landowners will need to plan ahead.
- Once an agreement is terminated (which will involve court proceedings) a further notice is required before the removal procedure under the code can be implemented. Unless the removal procedure is followed, no possession order will be made.
The above is of course very broad brush but the take home message is that the new code is very much in favour of operators/providers in a bid to facilitate the continued growth of the technology sector. Under the Digital Economy Act, Ofcom is required to produce a code of practice to accompany the Communications Code and a consultation on that finished on 2 June. Once that code of practice is finalised, it will be interesting to see how operators in practical terms are likely to utilise the provisions of the new Communications Code.