Telecoms and the 1984 Code: changing times


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Telecoms apparatus continues to give rise to contentious issues between site providers and operators. With the increase in the personal use of digital media on smartphones and tablets, the need for sites will increase. Add to that the Government’s policy to improve the mobile phone coverage across the UK and its policy to provide high speed broadband to the whole of the UK, and it becomes clear that the requirement for sites will grow; and therefore, potentially, so will the number of disputes.

The Mobile Infrastructure Project (MIP) is a £150 million project funded by the Government as part of its policy to increase the mobile phone coverage. MIP is targeted mainly at rural areas where currently there is no coverage from Mobile Network Operators. Arqiva was appointed by the Government in May last year to deliver the MIP and the Department for Culture, Media and Sport (DCMS) has already reported that the rural North Yorkshire village of Weaverthorpe can now get mobile phone signals thanks to MIP. This project sits alongside the Government’s £530 million investment in the roll out of high speed broadband to rural communities of the UK, together with a further £250 million to bring superfast broadband to 95% of the UK. These policies are under the DCMS’ overall policy of “Making it easier for the communications and telecoms industries to grow, while protecting the interests of citizens”.

Currently the balance between the growth of the telecoms industry and its commercial needs against the rights and needs of landowners is governed by the Electronic Communications Code. The Code dates back to 1984 and the privatisation of BT, and enabled phone companies to place landline equipment on land. Since then mobile phones have overtaken landlines and the world of mobile phones itself certainly looks a lot different. There were no smartphones around and in fact most of the phones resembled bricks. Technology has moved on considerably since then and the Code is quite simply out of date. In fact, I am not sure we can even claim it ever was up to date. The Code appears to have ignored completely the Landlord and Tenant Act 1954 and its effect upon land. The 1954 Act had already been around for 30 years when the Code was introduced and so should have been taken into account.

Everyone accepts that the Code doesn’t really work and needs to be overhauled, but the implementation of a new Code does not look likely to happen very soon. The Law Commission reported in February last year with its recommendations and the DCMS has carried out further consultations since then. The changes to the Code necessary to make it easier for the telecoms industry to grow, in line with the Government’s policy, will have an impact upon a landowner’s rights to use its own land. With an election looming this may not be legislation the Government will be keen to push forward. In the meantime, we will have to make do with the Code as it is.

Thekla Fellas, Partner, Fladgate LLP (tfellas@fladgate.com)

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