Cracking the code

We have come a long way in what, for most readers of this journal, is our own lifetimes. In 2003, under European regulatory pressure, the government introduced a universal service obligation (USO) giving consumers a right to request a dial-up internet connection at a minimum 0.028 megabytes per second (Mbps). Not perhaps good enough for sharing your holiday photos, but OK for text. The new broadband USO, which the government hopes to have in place by 2020, is intended to provide a legal right to request a broadband connection of at least 10 Mbps download speed, while the government’s Superfast Broadband Program envisaged 95% of UK premises having access to download speeds greater than 24 Mbps by the end of last year. That is 1,000 times faster than the 2003 target. Lots of holiday snaps, then, and videos too. Accompanying this acceleration in data speed, at roughly 10-year intervals, we have navigated the information superhighway through 1G (1982), 2G (1992), 3G (2001) and 4G (2012). 5G, with its difficult-to-grasp soup of connectivity, enabled through tiny bits of kit concealed under park benches, on street lamps – in fact, pretty well everywhere – is going to be with us in the early 2020s. The interface with property Up until now, those of us who give a passing thought to how the kit for all this electronic activity is physically accommodated will have had in mind those pylons you see in corners of farmers’ fields; those stubby towers (sometimes disquietingly disguised as misshapen pines) found along the sides of motorways; and those masts and antennae on the roofs of tower blocks. For the future, however, this miscellaneous collection of digital architecture is quite unlikely to be enough to service the public demand for superfast internet access, particularly once driverless technology and the internet of things have embedded themselves in our daily lives. Hitherto, the Telecommunications Code (as amended by the Communications Act 2003) has provided the means by which electronic communications operators can seek to compel landowners to provide suitable sites for enhanced internet coverage. That code has “worked” for the past 15 years, not because it provides a clear, efficient and fair way by which the competing interests of operators and landowners can be reconciled; but rather because it is drafted so badly and obscurely that parties are keener to settle their differences by negotiation rather than chance an encounter in court. Enter the Electronic Communications Code Well, all that is set to change. On 26 May 2016, the head of the National Infrastructure Commission said that a 5G network of ultrafast connections (to be launched in Britain in or after 2020) would need a huge increase in mobile phone transmitters, and a big reduction to the rents that providers pay to site transmitters. The new Electronic Communications Code (the Code), introduced by the Digital Economy Act 2017 and now in force, is in part the means by which parties are now to trade. Although the new Code uses much of the language of the old, it is radically different in many ways, and it can be expected that those parties thinking that life can carry on in the same old way will be in for something of a rude awakening. A full examination of the changes would take a substantial book by an experienced and expert authorial team (available in all good bookshops soon…) rather than an article. But here is an important example of one of the changes, which gives a good indication of how the landscape has altered. Sites and kit Under the new Code, the principal “Code right”, which attracts Code protection, is a right to install electronic communications apparatus (masts, antennae, cabinets, lines and so forth) on, under or over land. Here’s the point: say operator A installs electronic communications apparatus on L’s land. Suppose another operator, B, wishes to club together with A, sharing A’s apparatus, rather than erecting its own. L is content with this. Does B get a Code right as a result? Answer – not necessarily, because if B has not installed its apparatus on land, but rather on A’s apparatus, then the new Code does not allow B its own code right, since “apparatus” cannot itself be “land” for these purposes. The result is that B may of course carry on with its business as operator using A’s apparatus – but in the event that A decides to move elsewhere, B is left without any Code rights as against L. However, if (as is often the case), B requires access not just to A’s kit, but also to L’s land to get there, and to run its power and fibre optics, and to keep its own secure equipment cabin, then B’s rights will be exercised over a mixture of (Code right-excluded) kit and (Code right-included) land. We will need to see what the Upper Tribunal (Lands Chamber) (the UT) will make of these sorts of chimeric agreements. The answers to the above problems are not immediately obvious, but depend on a close acquaintance with the new Code language. It was clearly the policy of the new code to prevent operators imposing themselves on each other’s apparatus and securing Code rights against each other, but the consequence of the example considered – that the second operator does not have any rights under the Code against the landowner either – is not widely appreciated. Further, the answer may differ markedly when the facts are subtly altered. Prepare those precedents The new Code has many such surprises in store for those used to the workings of the old Code. In the early days of bedding in of the new Code, operators may wish to establish precedents for their operation, both against landowners and against other operators, to gain market certainty as to how it operates. In doing so, they will be assisted by the fact that the tribunal for determination of such claims will be the UT (and cognate Lands Tribunals in Scotland and Northern Ireland), which will rapidly extend their brand of specialist property expertise to this new jurisdiction. Guy Fetherstonhaugh QC, barrister, Falcon Chambers