The new Electronic Communications Code of Practice: what is it and how might it work?

Following lengthy consultations between Ofcom and the NCA (the National Connectivity Alliance – an alliance of telecommunications providers, infrastructure providers, landowners, and professional advisors), Ofcom has published a new version of the telecoms Code of Practice in respect of the Electronic Communications Code (the Code) – a copy of which along with Ofcom's associated statement can be found here.

In addition to reflecting legislative changes, the tone of the Code of Practice seeks to encourage negotiations between parties to ultimately encourage the roll-out of telecoms apparatus across the Country.  Despite being the statutory aim of the introduction of the Code in 2017, this has been far from reality (indeed the National Audit Office has recently confirmed that the mobile connectivity programme is behind schedule – see here for further info on that) with negotiations far too often stalling or proceeding to formal litigation.  

What is the Code of Practice and what does it seek to achieve?

In seeking to achieve this, the Code of Practice incorporates guidelines for parties to attempt to resolve disputes through Alternative Dispute Resolution (ADR) mechanisms before commencing formal litigation.  Since the introduction of the Code in 2017 we have seen an unprecedented amount of litigation between parties, and it is clear that the Code of Practice is seeking to address that and encourage efficient and amicable resolutions between parties without the intervention of the Courts to allow connectivity and necessary upgrades to take place.  

Although the Code of Practice falls short of prescribing ADR (indeed, successful ADR can only be achieved where the parties are willing to engage which would undoubtedly be thwarted by any requirement to engage in ADR), the general principle that parties should (where suitable) genuinely consider ADR routes to resolving disputes throughout a matter is one that has increasingly been encouraged and actively expected of parties.  For example, just last year the Court of Appeal in Churchill v Merthyr Tydfil ruled that courts had the power to stay proceedings in order to engage in ADR.  Although we may have seen limited use of ADR within the telecoms world, this is perhaps unsurprising given that court intervention has – to a certain extent – been required to clarify and explain points of legal interpretation.  However, as negotiations continue and there become fewer points that require court rulings, we would not be surprised to see a real shift to an expectation on parties to seek to resolve matters via ADR – as is standard elsewhere.  After all, ADR can be a flexible and cost-efficient way of resolving disputes, which will be of benefit to all parties involved and hopefully encourage a faster and more efficient roll out of network connectivity. 

Also noteworthy, the Code of Practice proposes best-practice guidelines and suggests practical steps that parties might follow from initial discussions, through to site surveys, installations or upgrading and maintenance, and eventual apparatus decommissioning.   Although, it is important to understand that those steps are illustrative only and unlikely to apply in every situation, for the majority of site providers who often do not have the technical or sector expertise of the industry, the Code of Practice paints a useful example of what may be involved where an operator is seeking to install or upgrade apparatus either above or below ground.  Whilst it is unlikely that the majority of site providers shall ever be (or wish to be) experts on electronic communications apparatus to the extent that operators inevitably will be, where the reality of network installation and maintenance can be openly understood and discussed between stakeholders, negotiations and engagement will inevitably be dealt with in a more supportive manner.  The Code of Practice may be a good starting point for knowledge sharing.  

What impact might the Code of Practice have?

Notwithstanding the potential benefits of the Code of Practice, one should not expect it to "solve" the connectivity backlog overnight.  Possibly its biggest restriction is in its lack of legal "bite".  It is a code of best practices and guidelines.  It is not incorporated into legislation or rules, nor does it go any further than encouraging parties to consider ADR before proceeding with formal applications or litigation or suggesting best practices for operators' deployment of their telecommunications framework.  Parties seeking to rely on compliance with (or on another party's lack thereof) the Code of Practice to stall or steamroll their position are unlikely to achieve their desired intention and may find themselves in muddy waters further down the line.  

Operators and site providers alike should welcome the Code of Practice as a straightforward guide, that explains and reiterates the scope of operators' powers in expanding or upgrading their networks and the steps that may be involved in doing that.   Furthermore, if the Code of Practice does enough to bring the industry into line with the general – already well established – principle of engaging in ADR, parties should welcome that opportunity and the guidelines, which have the potential to be a useful springboard for open and amicable dialogue between parties.