Statement: Electronic Communications Code
- Start: 24 March 2017
- Status: Statement published
- End: 02 June 2017
Statement published 15 December 2017
In April 2017 the Digital Economy Bill received Royal Assent from both Houses of Parliament, and became the Digital Economy Act. Amongst other things, the Digital Economy Act reformed the ‘electronic communications code’ by introducing a range of measures to make it easier for network operators to rollout infrastructure (such as phone masts, exchanges and cabinets) on public and private land. The reforms to the electronic communications code in the Digital Economy Act are wide-ranging and are of particular significance for network operators, landowners and occupiers. They include new obligations on Ofcom to publish:
- a Code of Practice to accompany the changes to the electronic communications code;
- a number of template notices which must or may (depending on the circumstances in question) be used by Code operators and landowners/occupiers; and
- standard terms which may (but need not) be used by Code operators and landowners or occupiers when negotiating agreements to confer Code rights.
Ofcom prepared drafts of each of the documents referred to above and consulted on them, and is now publishing the final versions of these in addition to a statement.
Ofcom has received a stakeholder request for clarification concerning the Template Notice it has prescribed under paragraphs 20(2) and 27(1) of the Code. The request identified a drafting error and also raised a point of more general application.
The specific drafting point relates to a cross-reference in paragraph 18 of the Template Notice. Paragraph 18 incorrectly cross-referred to “paragraph 15a. or b.”. This cross-reference should have been to “paragraph 14a. or 14b.”. We have amended the published Template Notice to correct this error.
The point of more general application relates to the alternative forms of wording that are provided in the Template Notice and how these should be selected without invalidating it under paragraph 88(3) of the Code. The alternative forms of wording in the Template Notice allow it to be used, with appropriate modification, both under paragraph 20(2) and under paragraph 27(1). Paragraph 20(2) provides for a notice to be given where an operator requires a person to agree to confer a code right or to be otherwise bound by a code right. Paragraph 27(1) provides for the same notice to additionally require agreement on a temporary basis where a right is to be exercisable in relation to apparatus which is already installed and the landowner/occupier has the right to require the operator to remove the apparatus but the operator is not for the time being required to do so.
Deleting the appropriate text will not invalidate the notice. However, deletion is best effected by striking through the non-relevant text or paragraph rather than removing it altogether. This should ensure it is clear where alternative text has been selected or deleted and where optional wording is not used. It should also ensure that internal paragraph numbering and cross-references remain intact, as some Notices may provide for a whole paragraph to be deleted rather than for an alternative version to be selected. Ofcom suggests this approach is adopted wherever a prescribed Template Notice includes text which is marked for potential use or deletion.