Gov Consults on New ECC Changes to Aid UK Broadband Rollout

The UK Government has launched a consultation on a series of proposed changes to the Electronic Communications Code (ECC), which aims to put right some of the problems caused by their last revision in 2017 and could thus make it quicker for broadband and 4G or 5G mobile operators to deploy their networks.

The ECC essentially reflects a set of rights that are designed to facilitate the installation and maintenance of electronic communications networks. The ECC was last reformed back in 2017 as part of the 2017 Digital Economy Act – supported by Ofcom’s Code of Practice (here). The changes back then were aimed at making it both easier and cheaper for telecoms operators to access public or private land / property in order to build new networks.

However, the revised ECC faced a bumpy ride, not least due to some operators pushing land / building owners into accepting “derisory payments” (here) for access to install their infrastructure (wayleave agreements). A good chunk of those issues have since been resolved, but the new tribunal process that was setup alongside this can still get bogged down and delays have also occurred in terms of the time taken to reach an agreement.

Indeed, a report published last year by the Centre for Policy Studies suggested that 80% of negotiations take more than 6 months to be completed, while the average time for agreements to be completed is 11 months and nearly a third of current negotiations stall. Clearly improving this process would save both time and thus money.

On top of that the Government have also been exploring the possibility of greater sharing via existing infrastructure (here), although much of that has more to do with the Access to Infrastructure (ATI) Regulations 2016 than the ECC, but there are some areas of overlap and the new Shared Rural Network (SRN) rollout may also benefit from further changes.

For example, the consultation proposes reviewing automatic rights which can be used when a phone mast needs to be upgraded from 4G to 5G or shared among operators to remove coverage blackspots, to make clear when these rights should be available.

Matt Warman, Minister for Digital Infrastructure, said:

“As part of our vision to level up the UK with better connectivity and faster broadband speeds, we’re looking at reforming the law so people can get the benefits of better connectivity as soon as possible.

We’re also investing £5.5 billion to roll out nationwide gigabit broadband and improve poor mobile coverage.”

Overall, the new consultation document highlights three key areas for improvement.

The 3 Key Areas for ECC Improvement (Consultation Extract)

— Issues relating to obtaining and using Code agreements

Code rights can only be used if an agreement allowing this has been made between a Code operator and the occupier of the land that the rights relate to, or has been imposed by a court. Code rights can only be exercised in accordance with the terms of the agreement and there are occasions where an operator or a site provider may need to enforce the terms of a Code agreement. Once completed, there is no provision under the Code for either party to apply to the Court for new or different terms, until the end of the agreed period.

However, failures to make agreements quickly make it difficult to provide homes and businesses with mobile coverage and gigabit capable connections quickly. Completed agreements are not flexible enough to accommodate changes in circumstances. Protracted and difficult negotiations can have negative impacts not only for the parties involved, but also on digital networks. The longer it takes for agreements to be completed, the longer it takes for sites to be upgraded and for new rollout to take place.

We therefore have proposed changes to support faster and more collaborative negotiations, help ensure best practice guidance is adhered to and encourage greater dialogue, provide efficient ways for disagreements to be dealt with, address failures to respond to requests for Code rights and ensure that completed agreements can operate effectively.

— Rights to upgrade and share apparatus

Upgrading and sharing apparatus has significant benefits for connectivity. It can reduce costs and increase the number of service providers in given areas. The 2017 reforms introduced automatic rights permitting operators to upgrade their own apparatus and share use of it with other operators, if two conditions are met. These automatic rights apply to all agreements completed after December 2017.

Disagreements about the automatic rights to upgrade and share are undermining relationships between occupiers, site providers and Code operators, and prolonging negotiations. The lack of certainty about the current legislation means upgrading and sharing is not happening as often or as quickly as it could. In addition, the strict limitation of the automatic rights to upgrade and share to agreements completed after December 2017 is limiting the use of pre-existing networks.

We think changes are needed that clarify the position on rights to upgrade and share, enabling more collaborative negotiations and reducing friction. This consultation therefore proposes to:

● Revisit the automatic rights to upgrade and share: reviewing when they should be available and how they might be clarified;

● Clarify the position where operators are seeking rights to upgrade and share that do not meet the conditions for the automatic rights;

● Consider the benefits of introducing limited retrospective rights to share and / or upgrade apparatus installed prior to the 2017 reforms , and whether this can be achieved in a way that adequately protects the rights of site providers and operators.

— Expired agreements

Code agreements are for a defined period of time. Part 5 of the Code provides that once an agreement has expired, the operator can continue to exercise the Code rights, and the site provider continues to be bound by them, until the agreement is either terminated or renewed. However, Part 5 does not apply to all expired agreements. There is a reported lack of clarity and consistency about when Part 5 does and does not apply and what should happen in cases where Part 5 does not apply. Additionally, provisions relating to renewal disputes mean it takes longer for these cases to be listed and heard than it does for new agreements and there is a perception that the current legislation does not encourage prompt negotiations for renewal agreements.

This consultation sets out that greater certainty is needed for operators and site providers about what will happen when their agreements come to an end. We also believe it would be beneficial for there to be greater consistency in the way that disagreements about the renewal of Code rights are dealt with. And we consider that the legislative framework should encourage prompt and collaborative negotiations for renewal agreements, with appropriate measures available for cases where an agreement cannot be reached.

As ever, the key challenge in making all of these changes is with doing them without significantly undermining or reducing the rights of existing or potential site providers (land/property owners etc.). Easier said than done. However, before deciding precisely how to tackle these issues, the Government are seeking views from all interested parties by 24th March 2021.

ECC Consultation
https://www.gov.uk/../consultation-on-changes-to-the-electronic-communications-code

UPDATE 10:24am

We’ve had a comment from rural FTTP broadband ISP Gigaclear and national operator Openreach.

Gareth Williams, CEO of Gigaclear, said:

“We’re really pleased to see that DCMS is consulting on reform of the Electronic Communications Code.

Securing access to land in a reasonable timeframe, especially in rural areas, is one of the biggest obstacles to connecting historically underserved areas of the UK to gigabit-capable fibre broadband. The pandemic has sharply underlined the importance of fast, reliable connectivity and so we welcome all efforts that seek to provide this service to as many households and businesses as possible.

At present, land access negotiations can go on for many months, which can cause delays that have a knock-on effect across entire network build footprints. We then support the Government’s commitment to reviewing this area of legislation and will of course respond.”

Catherine Colloms, MD for Openreach Corporate Affairs, said:

“Improving access to land, blocks to flats and social housing is critical to levelling up the UK, creating the conditions to invest and build at scale and pace, and supporting our ambition to pass 20 million homes with Full Fibre. We welcome the launch of this consultation and hope to work with Government to quickly address the barriers holding back the UK’s digital upgrade.”