Summary
At the end of last year, we reported on the passing of The Product Security and Telecommunications Infrastructure Act 2022 (the “PSTIA”), which is intended to support the roll-out of future-proof, gigabit-capable broadband and 5G networks by making various amendments to the Electronic Communications Code (the “Code”). The provisions of the PSTIA and the changes to the Code were to be implemented in stages by way of regulations.
On 18 September 2023 The Product Security and Telecommunications Infrastructure Act 2022 (Commencement No. 3) Regulations 2023 were made, which will bring in sections 68 and 69 of the PSTIA on 7 November 2023.
What will change?
Section 68 amends paragraph 35 of the Code. Where an electronic communications operator or site provider has applied for an order seeking the renewal or termination of an existing Code agreement (to which Part 5 of the Code applies), the effect of the change is that either party may apply to the Tribunal for an interim order, pending determination of the full application. This interim application may seek interim changes to any term of the agreement, including financial terms. A Tribunal order providing for such changes may provide for the order to have effect from the date of application for the order.
Section 69 amends various provisions in the Code to provide for Alternative Dispute Resolution (“ADR”). The changes introduce a new requirement for electronic communications operators to give certain information about ADR when serving certain Code notices. Operators and site providers will also be required, before making certain applications to the Tribunal, to consider ADR’s use to reach agreement with the other party, if reasonably practicable to do so. Section 69 also amends paragraph 96 of the Code to require the Tribunal, when making an order as to costs (or expenses for Scotland), to consider any unreasonable refusal by either party to engage in ADR.
Regulator response?
Ofcom has published two consultations on 12 September 2023, proposing changes to:
- The existing Code of Practice regarding agreements for access to private land. Ofcom recently invited the National Connectivity Alliance (NCA) to contribute to its review by proposing a set of draft revisions. Having considered the NCA's recommendations, this consultation sets out Ofcom's proposals for amending the Code of Practice; and
- The prescribed form paragraph 20 and 33 template notices for operators and site providers (reflecting the changes mentioned above on ADR). Ofcom proposes to amend those notices so that they include information about the availability of ADR in the event that the operator and the relevant person are unable to reach agreement and explain the possible consequences of refusing to engage in ADR.
The respective consultations close on 7 November 2023 and 10 October 2023.
With many thanks to Taiya Cooper for her help with this article.
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