The Electronic Communications Code and Property Law

Practice and Procedure

Falcon Chambers

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351007269
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Life now without access to electronic telecommunications would be regarded as highly unsatisfactory by most of the UK population. Such ready access would not have been achieved without methodical and ultimately enforceable means of access to the land on which to install the infrastructure necessary to support the development of an electronic communications network. Successive governments have made such access a priority, regarding it as a principle that no person should unreasonably be denied access to an electronic communications network or electronic communications services. The enactment of the Telecommunications Act 1984 and its revision by the Communications Act in 2003 have played their role in the provision of an extensive electronic infrastructure in the UK, while their reshaping by means of the Digital Economy Act 2017 will continue that process. Throughout that process, a little publicised series of struggles has taken place between telecommunications operators and landowners, as they seek to interpret the Electronic Communications Code by which their rights and obligations have been regulated.

This book describes the problems that accompanied the Old Code (which will continue to regulate existing installations and agreements); and the intended solutions under the New Code. The eminent team of authors explain the background, provisions and operation of the old code and the new one, providing practical and jargon-free guidance throughout. It is sure to become the reference on this topic and is intended as a guide for telecommunications operators, land owners, and of course for their advisers in the legal and surveying professions.

All members of Falcon Chambers, comprising nine Queen's Counsel and 30 junior barristers, specialise in property law and allied topics, including the various incarnations of the Electronic Communications Code. Members of Falcon Chambers, including all the authors of this new work, have for many years lectured and written widely on the code, and have appeared (acting for both operators and landowners) in many of the few reported cases on the subject of the interface between property law and the code, including for example: Geo Networks Ltd v The Bridgewater Canal Co. Ltd (2010); Geo Networks Ltd v The Bridgewater Canal Co. Ltd (2011); Crest Nicholson (Operations) Ltd v Arqiva Services Ltd (2015); Brophy v Vodafone Ltd (2017).

Part I

Introduction

1Introduction

1.1The importance of electronic communications

1.1.1

In the introduction to the Electronic Communications Code in their 2013 report on that subject (Law Com No. 336), the Law Commission stated that ‘It would be difficult to overstate the importance of electronic communications, both for business and individuals’, and cite in support the following statistics from OFCOM Communications Market Report (July 2012):

In 2011, there were 9.4 million business fixed lines in the UK, and businesses accounted for 1.7 million broadband subscriptions and 10.4 million mobile connections, including 1.4 million for mobile broadband. Of UK adults as a whole, 92% own a mobile phone and 39% own a smartphone, and it is reported that the number of households where at least one person uses a mobile phone to access data services is increasing. 76% of UK households have fixed or mobile broadband; overall, the number of fixed broadband connections in the UK is now over 20 million, and to that can be added 5.1 million active mobile broadband subscribers.

1.1.2

Only five years later, the OFCOM Communications Market Report (3 August 2017¹) is testament to the huge growth in the market. As the authors say in their sector overview:

By June 2016, 44% of all fixed broadband connections were able to receive actual download speeds of 30Mbit/s or more, up from 38% a year previously. Nearly two-thirds of mobile subscriptions were enabled for 4G, up from 46% in 2015. Consumers are also using these networks more – average data use per fixed line residential broadband connection increased by 36% year on year to 132GB in June 2016, and average data use per mobile connection increased by 44% to 1.3GB.

Most households have both fixed broadband and a smartphone, and consumers are moving seamlessly between fixed and mobile connections. Our mobile-app-based research shows that around two-thirds of data connections made by our panel of Android smartphone users are via a Wi-Fi network, with the remaining third via a mobile network.

UK telecoms revenues grew by 0.4% in real terms (i.e. adjusted for inflation) in 2016 to £35.6bn. This has been driven by the growing take-up of superfast broadband services.

1.1.3

Speed of transmission is critical to enhanced use of digital technology, and this is something to which the Government has reiterated its commitment. In summer 2017, it launched a consultation on the design of a Universal Service Obligation (USO) to deliver high speed broadband across the UK. On 28 March 2018, the Government laid before Parliament the Electronic Communications (Universal Service) (Broadband) Order 2018 (2018 SI No. 445), which came into force on 23 April 2018. Subject to certain exceptions, this provides for universal high speed broadband, giving everyone in the UK access to speeds of at least 10 Mbps by 2020. This is the speed that OFCOM says is needed to meet the requirements of an average family. In a press release on 20 December 2017, the Culture Secretary stated that a regulatory approach was necessary in order to ensure that high speed broadband became a reality for everyone in the UK, regardless of where they live or work.

1.1.4

OFCOM’s implementation of this USO is expected to take two years from the date when the secondary legislation was laid before Parliament, meeting the Government’s commitment of giving everyone access to high speed broadband by 2020.

1.1.5

In order to meet this ambitious target, the Government and the operators upon which it relies will have recourse to the New Code. Whether the New Code will be fit for purpose is a matter of intense industry interest. As section 1.2 below explains, the Old Code had been the subject of withering criticism since its introduction, primarily because the mechanism it provides had been designed with fixed line technology in mind, and the attempt to update it in 2003 to accommodate mobile technology was largely unworkable. However, the New Code introduced by the Digital Economy Act 2017 (the 2017 Act)² is modelled a little too closely upon the provisions of the Old Code, as section 1.3 below shows, and the opportunity provided by the all-party support in Parliament for a radically different and effective new mechanism was passed up.

1.2Shortcomings of the Old Code

1.2.1

For the purposes of this book, the chief shortcomings of the Old Code stemmed from the unsatisfactory interface between three types of law applicable to the siting of electronic communications apparatus: real property law; the statutory protection afforded to operators by the Old Code itself; and the protection afforded to business tenants (as operators commonly are) by Part II of the Landlord and Tenant Act 1954. Chapter 14 examines the conflict between these various regimes in more detail. In practice, because with rare exceptions nobody was sure how the Old Code would be interpreted if tested in court, landowners and operators maintained an uneasy modus operandi, with neither being willing to push disagreements to the door of the court.

1.2.2

A particular point of tension concerned arrangements into which operators were keen to enter as the market consolidated this century, with operators willing to share sites and apparatus. This desired flexibility did not sit well with traditional landlord and tenant relationships. Landowners were not prejudiced by sharing – but wished to take their own slice of the savings which operators achieved.

1.2.3

From the point of view of operators, the Old Code was also seen to be too generous in its operation to landowners, whose otherwise worthless and miscellaneous bits of property (rooftops, woods and corners of fields) were turned to productive account by operators.

1.3The New Code: an opportunity missed?

1.3.1

The problems briefly aired in section 1.2 were all too apparent when first the Law Commission and then the Government came to consult in the 2010s on the shape and content of a new Electronic Communications Code. The problems were rendered more difficult to resolve by the diametrically opposed views of the two main industry groupings – the landowners and the operators.

1.3.2

Ultimately, the New Code achieves much that is good, but at the expense of a series of unsatisfactory compromises that...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Preface
• Contributors Falcon Chambers
• Foreword
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Glossary
• Part I Introduction
• Part II Electronic Communications Code 2003 (the Old Code)
• Part III Electronic Communications Code 2017 (the New Code)
• Part IV Matters common to both codes
• Part V Drafting
• Part VI: The New Code – Annotated
• PART VII Appendices
• Index