Why these updates matter
The Act is divided into two parts – product security and telecommunications infrastructure. The main reason these updates are so important is that they make changes to the Electronic Communications Code (ECC), which was last reviewed in 2017.
Landowners and telecoms operators will be most affected by these changes, as the ECC regulates the relationship between them. So, what exactly has changed with the ECC?
Under all new agreements, sharing apparatus is now an express Code right. Any existing agreements will also have sharing and access rights, but there must not be any adverse impact on the land. What’s more, all operators will need to attach a notice to the land within three weeks of carrying out upgrades.
The Act also sees some retrospective changes to the ECC. The Act now amends the ECC’s transitional provisions for all agreements made before December 2003. This means that operators can now upgrade apparatus or share it with other operators. Before these changes, operators would have needed a new agreement compliant with the ECC.
This will take a great amount of pressure off operators. They will still need to display a notice and there must be no adverse impact on the land. However, it will save time and administrative resources.
Landlords should also be aware of the Act’s amendments to the Landlord and Tenant Act 1954. The new changes will align procedures for lease renewals more closely with part 5 of the ECC – where renewal is meant to confer Code rights.
This means there will no longer be open market valuations for the Landlord and Tenant Act lease renewals. Likewise, the “no scheme” valuation method, which doesn’t account for the operator’s use of the land, will be used instead. The good news is that this will lower rents.
Where a lease under this Act is renewed, there will now be the same rights for compensation as if it was renewed under part 5 of the ECC. This means that landowners can recover funds for loss or damage through an operator exercising their new Code rights, as conferred by the new tenancy.
Of course, this only applies to court-imposed agreements. Site owners and operators can still negotiate rent and compensation on their own terms. Under the new Act, the Secretary of State will now have the power to pass regulations allowing FTTs and Upper Tribunals to deal with renewals.
Under section 67 of the Act, operators can apply to the court to impose an agreement if landowners do not respond to notices seeking agreement to confer. This new procedure only applies to apparatus installed under or over land, not on the land itself, and on undeveloped land. Again, the Secretary of State can designate other land types with regulations.
Alternative dispute resolution
Under section 69, the Act states that operators should look to alternative dispute resolution before heading for a First-Tier Tribunal. This means that operators need to make landowners aware of this option.
If they fail to go down this route and apply to the courts instead, they could face extra costs. This will make processes quicker for operators and landowners, taking a collaborative approach to negotiations.
What other changes will come in with the Product Security and Telecommunications Act 2022?
Part 1 of the act will make further considerations for cyber security. Specifically, it relates to connectable products or smart devices, and places responsibility on manufacturers and distributors to keep consumers safe from attacks.
We’ll also see other changes including:
- The power to fly lines
- Interim arrangements pending code rights
- New rights for network providers with infrastructure.
How Trenches Law is adapting to these changes
The new changes represent a modern outlook on the world of telecoms, eschewing cumbersome red tape and focusing on cyber security. In particular, operators will benefit from a more collaborative approach with fewer legal hoops to jump through.
Landowners will enjoy lower rents, and both operators and landlords should be able to strike deals faster without costly disputes. At Trenches, we’re always one step ahead of the latest legislation and are on hand to advise. These new changes will facilitate landmark developments and foster step change for the telecoms industry.
For more information about how the Act will affect your land or business, contact the Trenches team.