The Product Security and Telecommunications Infrastructure Act 2022
21 February 2023
The Product Security and Telecommunications Infrastructure Act 2022 (‘’the Act’’) received royal assent on 6 December 2022. However, many of its provisions will not come into force until further regulations are passed by the Secretary of State.
The Act comprises two parts: (1) Product Security and (2) Telecommunications Infrastructure. Landowners and telecoms operators will be predominantly interested in part 2, as it makes changes to the 2017 Electronic Communications Code (‘’the Code’’) that regulates the relationship between them.
The key changes are summarised below.
Right to upgrade and share apparatus (sections 57 to 59 of the Act)
New Express Code Right
The Act introduces an express Code right under paragraph 3(1) to share apparatus with another operator and enter the land to carry out works associated with the sharing.
The express right is one for the operator who entered the Code agreement to confer (e.g. other operators cannot require they share).
The explanatory notes to the Act make clear that the parties can agree a right to share and upgrade, that goes beyond the automatic right under paragraph 17 of the Code (i.e. a right to share and upgrade subject to no materially adverse impact or any additional burden being imposed on the landowner). Where this is the case, operators must pay additional consideration.
The Act also makes amendments to the transitional provisions to the Code, so that the right to share and upgrade also applies for equipment installed below ground, pursuant to agreements in place under the previous telecommunications code (“subsisting agreements”), or where there is no subsisting agreement but the apparatus was installed before 29 December 2003.
Amendments to the Landlord and Tenant Act 1954 (sections 61 to 65 of the Act)
The Act contains amendments to the Landlord and Tenant Act 1954 (‘’LTA 1954’’), to align the procedures for lease renewals more closely with part 5 of the Code, where the main aim of the renewal is to confer Code rights.
In practice, the open market valuation used for LTA 1954 lease renewals will no longer apply and the ‘’no scheme’’ valuation method used under the Code, which excludes accounting for the operator’s use of the land, will be adopted instead. This will mean lower rents will be payable.
The Act also introduces the same rights for compensation where an LTA 1954 lease is renewed, as if it was renewed under part 5 of the Code. Under this provision, landowners will be able to recover amounts for loss and damage which they have sustained or will sustain as a result of the operator exercising any Code rights conferred by the new tenancy.
The above applies to court imposed agreements and so there is still scope for site owners and operators to negotiate higher rents or compensation on their own terms.
While renewals under the LTA 1954 are currently dealt with in the County Court, the Act grants the Secretary of State the power to pass regulations allowing the First-Tier Tribunal and Upper Tribunal to do so.
National Security and Code Rights (section 66 of the Act)
The court must now refuse an application to impose a Code agreement if the Secretary of State gives a certificate to the court certifying that it is satisfied that the order applied for by the operator would be likely to prejudice national security, defence or law enforcement.
Unresponsive Occupiers (section 67 of The Act)
The Act inserts a new procedure where an operator can apply to the court to impose an agreement where the landowner of a certain type of land is unresponsive to repeated notices given by the operator seeking agreement to confer or otherwise be bound by the rights.
The procedure only applies to apparatus installed under or over land (not on the land) and on undeveloped land, but the Secretary of State is granted the power to designate further types of land by making regulations.
ADR and Complaints (sections 69 and 70 of the Act)
The Act imposes a new duty on operators to consider using alternative dispute resolution (‘’ADR’’) to settle disputes or narrow disputed issues before making a court application, or face possible cost consequences. The aim of the provision is to encourage faster and more collaborative negotiations.
Ofcom is also now required to consider complaints handling against operators in the code of practice.
Other provisions were also introduced relating to the power to fly lines (section 60), interim arrangements pending code rights (section 68) and rights of network providers to infrastructure (section 73).
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2023.