The "new" Electronic Communications Code came into force on 28 December 2017 it therefore feels counter-intuitive to continue to refer to it as "new" and yet despite 7 plus years of it being on the statute books this is still the language that is used. Perhaps this is because of the fixation in the press and other sources that it is the root cause behind connectivity in the UK generally lagging behind our European relations. Is this really a fair reflection on this much maligned but fundamentally well thought out and crucial piece of legislation that at its core intends to speed up access to land for telecommunications purposes?
Pointing fingers at the statutory framework is all well and good, but the reality is much more nuanced and complex than some (heavily invested) sources might claim.
In our view, the connectivity gap in the UK, that the operators are all committed to closing over the next few years, is absolutely nothing to do with the valuation mechanisms under the Electronic Communications Code. Whilst valuation under the Electronic Communications Code has not been without its challenges the market in recent years has settled significantly and the last 12 months have seen universally improved transaction numbers in terms of the renewal of agreements as well as new site acquisition as demonstrated by the success of the first phase of the Shared Rural Network.
Reducing down the highly complex process of site upgrades and new builds to a valuation issue does a great disservice to the sector and is a skewed proposition, largely being promulgated by land aggregation organisations who have no stake in the benefit of connectivity to the public at large. Their interest in telecommunications in the UK is at its core limited to how best to leverage layered land acquisition for the distinctly capitalistic purpose of generating an income: simply they are in the business of creating complexity not generating enhanced connectivity.
The political agenda in terms of how to "speed up" UK connectivity needs to move away from pointing fingers at valuation and instead focus on three key things that will genuinely move the dial in the next few years and this is what needs to form the focus points for discussions with government in the months and years ahead:
- Investment into the Planning Regime, stripping out complexity, supporting the need for vital connectivity infrastructure and funding for local authorities to ensure that there is sufficient resource available to expedite and manage applications for upgrades and new sites in the years ahead.
- Clarification and guidance in respect of the impact of the Building Safety Act 2022 in respect of telecommunications installations on high risk buildings.
- Bringing into force the outstanding provisions of the Product Security Telecommunications Infrastructure Act 2022 and quickly. Routes for operators to renew agreements are multi-layered and legally complex. By removing the inconsistencies between the Electronic Communications Code and the Landlord and Tenant Act 1954 and bringing all renewals of telecommunications agreements under the Lands Tribunals jurisdiction much of the "legal uncertainty" and debate will inevitably fall away.
