• Unexpected Reform of the Electronic Communications Code
  • April 23, 2015
  • Law Firm: Dentons Canada LLP - Toronto Office
  • Since last week, we understand that Parliament has dropped the proposed amendment to the Infrastructure Bill, meaning that reform is no longer imminent. This change in tack reflects concern in the property industry that there was not enough consultation on the amendment before the draft bill was pushed through Parliament. It is 'as you were' for now, but watch this space for further updates on the subject.

    On 13 January 2015, the Government announced that a new Electronic Communications Code has been inserted into the Infrastructure Bill, which is currently before the Public Bill Committee in the House of Commons. If the new Code is approved by Parliament, it will be included as a new Schedule to the Communications Act 2003.

    The Electronic Communications Code (the Code) facilitates the installation and maintenance of electronic communications networks and gives rights to the providers of such networks to install and maintain apparatus in, over and under land.

    It is common knowledge that the Code is in desperate need of reform due to its contradictions and uncertainties and has been described by Lord Justice Lewison as "one of the least coherent pieces of legislation on the statute book". The Law Commission published its recommendations for reform of the Code in February 2013 following a period of consultation that ended in October 2012. However, it was not envisaged that the long-awaited revisions to the Code would be introduced in the late stages of the Parliamentary process and questions have been raised in respect of the opportunity for Parliament to debate and/or industry to influence the wording of the new Code.

    If approved by Parliament, the key provisions of the new Code will include the following:
    • Code rights can be conferred on a person who provides infrastructure services for operators and not just the operator itself.
    • An operator can assign "Code rights" to another operator without the landowner's consent. Any term which prevents or limits such assignments or makes the assignment subject to conditions is void. However, the landowner can require the outgoing operator to enter into an authorised guarantee agreement guaranteeing the assignee's obligations.
    • Following expiry of an agreement between a landowner and a telecommunications operator, the operator's Code rights will continue indefinitely unless brought to an end under the Code following a termination procedure. This involves providing the operator with at least 18 months' notice and citing the grounds on which the Code agreement should come to an end. Such grounds include an intention to redevelop and substantial breaches of the agreement by the operator. This can only apply where the primary purpose of the agreement was for the landowner to grant Code rights to the operator. A telecommunications provider will not be able to rely on both rights under the Code and rights of renewal under the Landlord and Tenant Act 1954 (LTA 54) in order to avoid a landowner taking back possession once the agreement between the parties has expired. This is a key provision of the draft Code and one aimed at addressing concern at the inconsistencies of the Code and the LTA 54.
    • The removal of apparatus can be required by a site provider if one or more of five conditions are met, such as the apparatus no longer being used by the operator in connection with its network.
    • The court can order an operator to pay compensation where apparatus is removed or where an agreement is imposed.
    It is encouraging that the Code has, following the Law Commission's advice, been completely rewritten in modern language and style in order to remove the uncertainties of the current Code. However, only time will tell whether the new Code, which appears to have been rushed into the Infrastructure Bill, removes all of the ambiguities of the current Code and clarifies the law relating to telecommunications once and for all.