COMMENT On 24 November, the government published its long-awaited response to the January 2021 review and consultation of the 2017 Electronic Communications Code legislation. This is effectively what governs telecommunications agreements, whether for fixed-line or wireless infrastructure, across the UK.
Launched with the intention of simplifying and speeding up the rollout of critical and much-needed communications infrastructure and technologies across the UK, since the implementation of the ECC this rollout has been hugely delayed. The industry has been left divided and fraught with disputes over access, contracts and associated payments.
We have examined the reforms announced, reviewed our own research into the topic and added our verdict.
The reforms
The government has rightly highlighted that the ECC has a key role to play in the rollout of gigabit-capable networks. November’s published revisions to the ECC were a step in the right direction, particularly when it comes to clearing the pathway for operators and fibre service providers to get the job done and lay the crucial infrastructure.
Within the proposed amendments to the ECC there are many encouraging aspects for the marketplace and which reaffirm the government’s commitment to a connected Britain. These include:
- The launch of a new process allowing for an agreement to be imposed by default whereby a landowner has been unresponsive to three sets of notices by the operator
- Operators already in situ can now renew their expired agreements with the landowner directly to speed up the process
- Sharing of existing apparatus to be made a specific right, albeit this is a bare right that will still need to be specifically agreed or acquired
- The amending of the statutory framework of 1954 Act renewals to closer align with the ECC
- Operators and landowners alike will be able to apply for interim orders on renewal negotiations, meaning that operators can now seek modifications to an existing agreement, and determine an interim rent from the tribunal to unlock any potential rent reduction
Having said that, there were some less positive parts within the Bill such as:
- The modification of existing agreements during the term are still not to be permitted unless consensually agreed
- There will be no additional formal fast-track process or any further statutory time limits imposed for dealing with cases beyond the current rule that applications on new sites will be dealt with within six months. The government feels the changes it is making will negate any need for this. We are less positive and will have to wait to see if this is indeed the case
Lagging behind
Overall, there are some very positive signs in the reforms. But we believe there is more that can be done, more that needs clarification in order for the reforms to work and, of course, a fast track into law is also needed.
We are most likely three to five years behind government targets for 85% of the UK to have gigabit-capable broadband by 2025. We also believe the complications and deadlocks between landowners, mobile operators, fibre providers and occupiers of land and property are a key factor in falling behind on these targets.
Our forthcoming Connecting the UK research, conducted in collaboration with YouGov, suggests there is a knowledge gap in government surrounding the importance of the ECC, with 50% of MPs saying they “didn’t know” when asked how important they thought reforming the ECC was to speeding up the gigabit rollout. Perhaps this is why the ECC revisions last week have not gone as far as they could, whereas we believe the document and guidance is absolutely essential if we want the infrastructure in place for digital Britain to become a reality and not an aspiration.
Private sector subject matter experts must now work together to help both local and central government find a way forward to lay the foundations that will accelerate the deployment of digital infrastructure. This is crucial to levelling up, jobs, economic growth and access to health and social care. A digitally enabled Britain also supports the sustainability agenda and the targets as set post-COP26. This ECC review promises to reduce some of the barriers to infrastructure facilitation and we hope that these reforms become policy.
Darren Zitren is a partner and head of network estate management at Cluttons
