It would be fair to say that the 2017 reform of the Electronic Communications Code - that regulates the telecoms market - completely altered relationships between site providers and operators, so much so that the operator now has a clear advantage.
The CLA recently surveyed members with mobile masts on their land. Results showed that rental values on renewed leases have fallen by 70% and code agreements are taking an average of 18 months to come to completion, rather than the prescribed six months.
Changes to the code as a result of the Product Security and Telecoms Infrastructure (PSTI) Act 2022 mean that it is important for members to keep up to date with developments, in addition to being aware of the work of the National Connectivity Alliance (NCA) in promoting the interests of the telecoms industry.
What is the NCA?
Created to encourage increased dialogue between landowners and operators and to help rebalance some of the vagaries of the Electronic Communications Code, the NCA was created by a number of leading telecom companies and organisations, with the CLA playing a fundamental role as secretariat along with the NFU and Mobile UK.
Formally launched in November last year, the NCA acts as a coordinating body between the telecoms industry and government, with a chief aim to establish stability between landowners and operators. Work by the NCA is beginning to bear some fruit in a number of areas where frictions between landowners and operators have always been present.
The right of access to a site provider’s land
Under the code, an operator with code rights retains the legal right to access land in order to carry out a survey, prior to any work commencing on deploying a mobile mast. Notice should always be given when access is required and this should be at least seven days. The issue of tensions arising between site providers and operators has been considered by the NCA and a new best practice note has been published setting out rights and responsibilities of site providers and operators. More information can be found on the NCA website here.
Professional costs and fees
The ability of a land agent to have their costs and fees paid for by the operator and not the landowner has been an source of friction for a number of years. There have been cases where land agents and solicitors have been engaged in working with landowners on a lease when negotiations are terminated abruptly because the operator has decided to deploy a mast elsewhere. On such occasions, it is difficult to get operators to pay fees.
It would appear that common sense has finally prevailed. The NCA has agreed to update its best practice note and add in the statement:
Operators will re-imburse a site provider for their reasonably and properly incurred professional costs within pre-agreed parameters
This is a very welcome statement and clarifies that there is an expectation that agents and solicitors will be paid for their work. However, it is important to stress that costs and expenses must be deemed as reasonable and it is vital the site provider agrees beforehand with an operator what will or will not be paid. This clarification will soon be posted onto the NCA website.
Ofcom Code of Practice
The PSTI Act 2022 requires a review and revision of the current Ofcom Code of Practice. The Code of Practice is intended to guide the relationships and behaviours of landowners and operators when code agreements are negotiated. However, it has no legal sanction unless it is appended to a code agreement and, in practice, many in the industry have recognised its limitations. As such, the requirement to review and revise is opportune.
The NCA was asked by government to review the Code of Practice and put forward a revised paper taking into account changes to the Electronic Communications Code following the PSTI Act 2022. This paper and the recommendations were agreed by site providers and operators and submitted to Ofcom in March this year. The Ofcom consultation opened last week. It is pleasing to note that the proposed Code of Practice in the consultation mirrors to a very large extent the revisions recommended by the NCA.
As is always the case in telecoms, developments take place very quickly. The CLA recognised very quickly that deteriorating relationships between landowners and operators were doing irreparable harm to the sector. By playing a fundamental role in not only the genesis of the National Connectivity Alliance but also in creating structures that make the NCA function, the CLA has shown that tensions between landowners and operators can be eased. Through greater collaboration, dialogue and consensus, the huge opportunities of digital connectivity can be realised.