Electronic Communications Code

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Updating the laws and rights around maintaining electronic communication infrastructure on public and private land. Government introduced reforms broadly aligned with our recommendations, with some key exceptions. They were implemented in the Digital Economy Act 2017.

Download the report

Download the summary

The problem

The Electronic Communications Code was created in 1984 and replaced in the Digital Economy Act 2017. The Code sets out the regime that governs the rights of designated electronic communications operators to maintain infrastructure on public and private land.

In modern times, it applies to the infrastructure forming networks which support broadband, mobile internet and telephone, cable television and landlines.

Often, rights to access private land are agreed with the landowner. However, where this does not happen, the operator has the power to apply to the court for an order to dispense with the need for agreement.

Where the court makes such an order, it will also make a financial award in favour of the landowner.

The original Code had been criticised by courts and the people who work with it as out of date, unclear and inconsistent with other legislation.

The project

Our work on this project commenced in September 2011.

In June 2012 we published a consultation paper, to which we received a large number of detailed responses from a range of consultees including landowners, operators, lawyers, valuers and others with a professional and personal interest in the operation of the Code.

The consultation paper, together with other material related to the project, can also be found on this page.

This project focused on private property rights between landowners and electronic communications providers; it did not consider planning law

Our recommendations

We published our report on 28 February 2013. The report aimed to bring clarity and certainty to landowners and network providers, enabling them to reach agreements more easily and quickly, saving them time, effort and money. In particular, we recommended reforms which would:

• provide a clearer definition of the market value that landowners can charge for the use of their land, giving them greater confidence in negotiating agreements and giving providers a better idea of what their network is likely to cost;
• clarify the conditions under which a landowner can be ordered to give a network provider access to his or her land, bringing more certainty to both landowners and providers and helping them to reach agreement more easily;
• resolve the inconsistencies between the current Code and other legislation;
• clarify the rights of landowners to remove network equipment from land;
• specify limited rights for operators to upgrade and share their network equipment; and
• improve the procedure for resolving disputes under the Code.

As agreed with the Department for Culture, Media and Sport at the inception of the project, our report did not include a draft Bill; it was for Government to draft and implement a revised Code.

Results

In December 2014, the Department for Culture, Media and Sport announced that it would reform the Code based on our recommendations.

Government consulted on its draft legislation between February and April 2015 (available here).

On 17 May 2016, Government published details of its revised proposals for a new Code (available here).

Following further consultation and additional independent economic analysis, Government’s proposed reforms remained broadly aligned with our recommendations, with some key exceptions.

In particular, Government decided to adopt a different basis for the valuation of Code rights and to confer automatic rights to upgrade and share apparatus.

The revised Code was implemented in the Digital Economy Act 2017