Changes to the Product Security and Telecommunications Infrastructure Act – what Operators and Landowners need to know

Electronic Communications Code: ADR and Interim arrangements 

Following extensive consultation, the Product Security and Telecommunications Infrastructure Act 2022 (PSTI) received Royal Assent on 6 December 2022. The aim of the PSTI was to support the Government's roll out of high-speed broadband and 5G by amending and bolstering the Electronic Communications Code (the Code), with various provisions taking effect over time. 

Today (7 November 2023), two key changes made by the PSTI, applicable to both Operators and Landowners, will take effect: 

Section 68 PSTI: Interim arrangements pending Code rights

Section 68 of the PSTI amends paragraph 35 of the Code and applies to applications under part 5 of the Code for the termination (paragraph 31) or the modification and renewal (paragraph 33) of existing Code agreements. 

Now, either party, Operator, or Site Provider, may apply to Court for an interim order seeking changes to the terms of an existing Code agreement, pending final determination of the full application.

The interim order can be in relation to:

1. The financial payment to be made to the Site Provider by the Operator under an existing agreement, likely backdated to take effect from the date of the application for the interim order; and 

2. Modify any of the terms of the existing code agreement, including restrictive terms. 

This is a significant change, as previously under the Code, interim applications could only be made in relation to expired agreements in respect of the consideration to be paid and only by a Site Provider. These changes should enable the variation of terms more efficiently, which should help the quicker renewal of existing Code agreements.

Section 69 PSTI: A duty to consider Alternative Dispute Resolution (ADR)

Section 69 of the PSTI amends various provisions in the Code to provide for a new duty for Operators to consider using ADR to narrow down issues or settle disputes between the parties, before making applications to the Court/Tribunal. 

The changes introduce a requirement for operators to include certain information about ADR when serving particular notices requesting Code rights to be granted. This is to make sure that landowners are aware of ADR. Whilst the parties should always have been considering ADR, hopefully this provision will unlock negotiations and reduce the costs both parties are incurring. 

Whilst the duty is only to consider using ADR, Section 69 also amends paragraph 96 of the Code to require the Tribunal to look at any unreasonable refusal to engage in the ADR process when deciding what extent and level of costs are to be awarded. 

It remains to be seen whether this change will result in better collaboration between site providers and operators or whether ADR will cause further conflict and delay. 

If you would like to discuss these changes in more detail, please do get in touch with a member of the team.

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