Gov Moot Tricky Land Access Changes to Boost Mobile and Broadband

The Government has today published its proposals for a revised Electronic Communications Code (ECC), which could attract anger from private land owners by making it easier and cheaper for fixed line broadband and mobile providers to access and build new infrastructure on their property.

The existing code, which regulates the relationship between electronic communications network operators and site providers (e.g. landowners), has been around since 1984. Admittedly the rules have been tweaked a bit since then, most recently in the 2013 update, but the core legislation hasn’t changed much and that’s partly due to some stiff opposition from private land owners.

On the one side the Government wants to make it easier and cheaper for infrastructure developers to construct new wireless masts, cable ducts and telegraph poles. Meanwhile private land owners are staunchly opposed to anything that would result in them having less control over their land and or reduced income from the rental paid by telecoms operators for allowing such access.

The situation is so problematic that it scuppered the Government’s previous attempt to push related legislation through as part of the 2015 Infrastructure Bill, which in the end resulted in the regulation being removed from the bill (here) and consulted upon as a separate policy (here).

By comparison today’s proposals aim to “strike the right balance of interests” between site providers, communications providers and, most importantly, the public interest. But they also appear to follow a similar narrative and may not appease everybody, which means that the Government could be in for another rough ride.

Ed Vaizey MP, Digital Economy Minister, said:

“The new Code will vastly improve on the existing Code. It will make major reforms to the rights that communications providers have to access land – moving to a “no scheme” basis of valuation regime. This will ensure property owners will be fairly compensated for use of their land, but also explicitly acknowledge the economic value for all of society created from investment in digital infrastructure. In this respect, it will put digital communications infrastructure on a similar regime to utilities like electricity and water. This will help deliver the coverage that is needed, even in hard to reach areas.

The other reforms this Government is putting forward will also make it easier for communications providers to deploy and maintain their infrastructure. New rights to upgrade and share will allow future generations of technology to be quickly rolled out as they become commercially viable. There will also be administrative changes to court processes to allow for improved dispute resolution, ensuring that disagreements between communications providers and landowners do not hold up investment and create uncertainty.”

Sharon White, Ofcom Chief Executive, said:

“We support reform of the Electronic Communications Code, as we set out in our digital communications review. We welcome the Government’s plans to make it easier for operators to roll out, maintain and upgrade their networks so they can serve customers better.”

The new Code is a “major change” to the way land is valued, although we note that key utility providers (water, electricity etc.) often pay less for land access and this was a major point of contention with the previous proposals. On the other hand broadband and mobile are frequently regarded as a 4th utility service, having become vital to so many people, which means that such services have evolved beyond being a luxury and should now perhaps be treated the same way in law.

The Government admits that its policy will reduce the rental expenditure of operators (i.e. less income for land owners), including in areas where costs have previously been prohibitive, and they encourage “communications providers to work closely with landowners to ensure a smooth transition” (easier said than done).

The Code will also enshrine reassignment of Code rights. This means that as infrastructure assets are sold and acquired by communications providers, under infrastructure sharing arrangements for example, there will be no option for landlords to negotiate new terms for existing contracts.

However the new Code rights will only apply to contracts signed after the law has come into effect, and will not apply to existing contracts retrospectively, although transitional arrangements will be needed in some cases as old contracts expire. This might be enough to appease some land owners, but the expiration of existing contracts means that it will eventually become an issue again.

It’s also noted that the dispute resolution procedure will be moved from the ordinary courts and put through specialist Tribunals, which could speed up the administrative process. One such area where this might be tested is with a new provision that allows fast interim access to sites, even while valuation is still being resolved, for communications providers in exceptional circumstances (we’re not yet sure what these are). Naturally the Country Land and Business Association (CLA) has some concerns.

Ross Murray, CLA President, said:

“Ministers have announced a massive concession to mobile industry dressed up as a measure necessary for consumers. Reform of the Electronic Communications Code is needed, but these last minute changes are poorly thought through, against Law Commission recommendations, and remove fairness from the system. These major concessions, valued by the Government’s own economic analysis at more than a £1 billion in benefit to the mobile operators, come with not one single additional commitment to actually deliver for consumers.

We were told 18 months ago that we would get legally guaranteed coverage for 90 percent of the geographic landmass of the UK by the end of 2017. However, ever since the day that announcement was made the industry has lined up excuse after excuse and there is scant evidence they are on target to meet their objectives. The most recent figures show that mobile coverage covers only 55 percent of the country.

Not one of the changes in this announcement will be in force in time to assist the industry in meeting the legally binding target. However the rushed and confused changes in the law risk creating confusion and mistrust among landowners that had previously been keen to assist mobile companies in locating mobile masts.”

In fairness EE, which recently won the Government’s Emergency Services contract, has already pledged to increase their 4G landmass network coverage to 95% of the United Kingdom (99.8% population coverage) by 2020 (details). But they also linked that to reform of the ECC, not least because some land owners do make it far too expensive to install vital new equipment and that’s particularly true when attempting to improve connectivity to isolated rural communities where, without public funding, operators may even make a loss.