Later this year, the Electronic Communications Code will turn six. Ahead of the anniversary of its coming into force, last month changes were made to the Code by the commencement of further provisions of the Product Security and Telecommunications Infrastructure Act 2022. Further changes, brought about by new regulations, will be seen next April.
The need to play nicely
On 7 November 2023, sections 68 and 69 of the Product Security and Telecommunications Infrastructure Act 2022 came into force. Section 69 imposes a range of new provisions, including duties on operators, as regards the use of alternative dispute resolution. First, there is a new duty on operators to refer to the availability of alternative dispute resolution in its notices and the consequences of refusing to engage in such measures (new subparagraph 20(2A) and 32(3A) of the Code). Further, before applying for a paragraph 20/34 order against a site provider, the operator must consider the use of ADR to reach agreement with the site provider, where reasonably practicable to do so (new paragraph 20(5)/32(6)). Further, there is a now a provision allowing either party to give notice to the other stating that they wish to engage in ADR (new paragraph 20(6)/32(7)).
As a consequence of the changes, Ofcom introduced new forms of the paragraph 20(2), 27(1) and 33(1) notices which meet these requirements (note that there has been no change to the paragraph 33(1) notices where termination is sought). The new text repeats the content of paragraphs 20(5) and (6) and further notes “when deciding on the appropriate costs order or, in Scotland, expenses, the courts must have regard to any unreasonable refusal to engage in ADR by either party”.
Unpacking these changes a little, since the duty on operators now contained in subparagraph 20(5) of the Code is only applicable “where reasonably practical” it is not an absolute duty. The question then arises, if it is not an absolute duty, when does the obligation bite? This will depend on how the words “reasonably practical” will be interpreted. Case law on the meaning of this language is rather thin on the ground, and use of the same smacks slightly of a lack of effort on the part of the draftsperson (nothing new there where the Code is concerned, at least). In this context, the likelihood is that the plain English meaning applies, with the real question being whether it might have been useful to engage in ADR, or, mirroring the way the Ofcom notice has put it, whether a refusal might be considered unreasonable. Of course, proving that it would have been useful will be difficult where there is no ADR but operators should think carefully before refusing any invitation to discuss informally from a site provider, even (potentially especially) where there is an urgency so far as the operator is concerned, and would be well advised to consider “unreasonable” narrowly.
Taking turns
Turning to section 68 of the 2022 Act, this section has amended paragraph 35 of the Code so as to throw open to operators the possibility of making an application requiring the tribunal to determine consideration and other terms on an interim basis, and also to confer rights on both sides to have an interim determination. This is in contrast to the previous position, which only permitted interim applications by site providers, and only then in relation to the consideration payable pending full determination in respect of expired agreements. We can fully expect to see operators using this new procedure in an effort to bring consideration payments down and to acquire more advantageous terms while looking to obtain new rights. The section also inserts a new subparagraph (4) into paragraph 35, which sets out the factors that the court will need to consider when making the order. These include the operator’s business and technical needs and the site provider’s use of the land, again, giving further weight to needs that the operator might have, but allowing a balancing exercise against site provider use and any duties on the same plus the amount of consideration payable. The amendments therefore reflect the ongoing purpose of the Code: to facilitate the roll out of an enhanced telecommunications infrastructure, so long as there is – within the confines of the Code – due regard paid to the inconvenience caused to the site provider.
Clever as clever?
Finally, in April 2024, the Electronic Communications Code (Jurisdiction) (Amendment) Regulations 2023 will come into force, making changes to the Electronic Communications Code (Jurisdiction) Regulations 2017. The obligation on parties to begin proceedings in the Upper Tribunal will be lifted, and the First-tier Tribunal will consider cases both begun in the lower chamber and transferred from the Upper Tribunal (Lands Chamber). Proof perhaps, that the Upper Tribunal considers that the Code has, after six fairly turbulent years, finally bedded in. Be that as it may, the Code cannot remain “six now for ever and ever” (unlike the narrator in the poem). AA Milne also wrote “one of the advantages of being disorderly is that one is constantly making exciting discoveries” – words which seem apt when considering the Code.
Laura West is a director (barrister) at Fieldfisher