Following the introduction of The Electronic Communications Code (which has been in force since 28 December 2017), there is often confusion as to which procedure to follow to terminate a code agreement - whether it was made before or after the new code came into force - and remove a telecoms operator's equipment.
This guide contains some 'FAQs' and a flowchart to help site providers identify the correct procedure to follow.
The Electronic Communications Code (the "New Code") at Schedule 1 of the Digital Economy Act 2017 came into force on 28 December 2017, replacing the Old Code at Schedule 2 of the Telecommunications Act 1984. Parts 5 and 6 of the New Code set out provisions for termination of Code agreements and removal of apparatus, subject to transitional provisions to consider when terminating agreements entered into prior to the New Code coming into force. These are worth considering carefully.
The flowchart available here, together with some 'FAQs', serve as a guide to help untangle the wires and ensure that Code agreements are effectively terminated. The starting point is to consider which of the following two scenarios your agreement falls into:
- an agreement for the purposes of the Old Code entered into before 28 December 2017 ("Subsisting Agreements"); or
- an agreement for the purposes of Part 2 of the New Code entered into on or after 28 December 2017 ("New Code Agreements").
FAQs for site providers
Q: What if the site provider just wants to 'lift and shift' the operator's apparatus for the purposes of redevelopment?
A: The New Code does not specifically refer to 'lift and shift' provisions (which were previously contained in paragraph 20 of the Old Code). You will therefore need to rely on contractual provisions, or, in their absence, on the termination and removal provisions of the New Code. However, it remains to be seen whether contractual provisions are effective given that the Code restricts site providers requiring the removal of operator's apparatus.
Q: Can the site provider rely on a contractual break clause with a notice period shorter than 18 months to terminate a Code agreement?
A: Not on its own. It is not possible to contract out of Part 5 of the New Code, and it will take precedence over any contractual provisions that are inconsistent with it. However, you can exercise the break clause to terminate the lease earlier than the contractual expiry date and then immediately serve a notice under Part 5 to terminate the Code agreement by serving 18 months' notice (but see flowchart) and specifying one of the statutory grounds for termination. That notice cannot expire any earlier than the break date.
Q: What are the statutory grounds of termination?
A: These are the limited circumstances in which a site provider can serve a notice under Part 5 to determine the Code agreement:
- substantial breaches by operator of its obligations under agreement;
- persistent delays by operator in making payments;
- site provider intends to redevelop and could not reasonably do so without termination; and
- the paragraph 21 "access test" is not met.
Download our flowchart to help you untangle the wires and identify the correct procedure to follow to effectively terminate a Code agreement and remove a telecoms operator from your site.
Please speak to Clive Chalkley or Nick Vuckovic if you wish to discuss the contents of this guide.