Can the law keep up with the 5G revolution? The Product Security and Telecommunications Infrastructure Act 2022

Last week, the press reported that Vodafone and Three UK were planning to merge their UK-based operations, creating the biggest mobile network in the UK. Though the deal itself is still to be approved by the regulators, Vodafone and Three said they plan to invest £11bn in the next generation of telecoms technology – 5G – in the UK over ten years.

A timely reminder that love it or loathe it, 5G is big business and set to revolutionise technology. It has been hailed as a business revolution, with some proponents suggesting it will have an impact similar to the introduction of electricity or the car.

And the Government is firmly behind its UK rollout and has ambitions for the UK to be a world leader in terms of digital connectivity and 5G coverage. It is working with the telecommunications industry to target a minimum of 85% gigabit-capable coverage by 2025; to ensure that 95% of the UK’s geographic landmass has 4G coverage from at least one mobile network operator by 2025; and that the majority of the UK population has 5G coverage by 2027.

The legal bit

So, how is this going to happen, and what does it mean for landowners, landlords and developers whose land operators might want to use?

Crucial to the success of the 5G rollout will be the ability of operators to have apparatus in the right places to give the right level of coverage. And someone will own the land upon which the operators want to either upgrade existing equipment or install new equipment.

The Electronic Communications Code (the Code), introduced by the Digital Economy Act 2017, was the legislative means through which the Government hoped to facilitate the rollout, making it easier for operators to secure and retain rights over land owned and occupied by third parties. Yet it is safe to say things have not entirely gone to plan!

So now, receiving royal assent at the back end of last year, we have the Product Security and Telecommunications Infrastructure Act 2022 (the Act). Part 2 of the Act deals with telecommunications infrastructure by making changes to the Code. The Act aims to plug some of the holes that have become apparent in the Code given the high volume of litigation passed through the courts in the last six years with operators and landowners trying to clarify what the Code means for them.

The briefing paper that accompanied the bill put before parliament stated that the aim of the 2022 Act is “to encourage faster and more collaborative negotiations for the installation and maintenance of telecoms equipment on private land. The Government says this would help ensure the efficient rollout of digital infrastructure such as gigabit-broadband and 5G.”

The main changes to the Code introduced by the 2022 Act (the majority of which are not yet in force) are as follows:

• Giving telecoms operators rights to automatically upgrade and share equipment:
  • The relevant provisions of the 2022 Act came into force on 7 February 2023 and 17 April 2023.
  • For new agreements, sharing of apparatus between operators, and the ability to upgrade equipment, has become an express Code right;
  • Sharing and access rights, and rights to upgrade, can also now be enjoyed by operators occupying under agreements granted before the Code came into force or where there is no express agreement in place, which was not previously possible. These rights are more limited and are subject to notice being displayed, no adverse impact on the land, and no additional burden imposed on any person with an interest in the land.
• Changes to the terms upon which certain types of telecoms agreements, particularly in relation to rental values and interim rent, are to be renewed – not yet in force.
• Introducing a faster procedure to allow telecom operators to get temporary rights to access and install infrastructure on land when an occupier is unresponsive – not yet in force.
• New provisions to actively encourage alternative dispute resolution rather than legal proceedings where possible – not yet in force.

How we can help

The need for the release of further legislation to try to clarify the respective rights and obligations between operators on the one hand, and site providers on the other, six years after the introduction of the 2017 Code, which was designed to do just that, demonstrates just how complicated the law relating to telecommunications infrastructure can be.

Most of our clients own or occupy property. Some of those clients will already have telecoms masts and/or apparatus on their land. Others may find that, with a focus on nationwide rollout, operators will be keen to investigate and acquire further sites to help facilitate a 5G network and may come knocking at their door. Those clients with a focus on property development may well find that the presence of telecom equipment on site puts a spanner in the works in terms of both timescales and costs.

Our Real Estate Dispute Resolution team has specialist knowledge of all things “telecoms” and can help our clients find a commercial solution in relation to their dealings with telecommunications operators. The law in this area is complex and ever-changing. We can help our clients find a way forward that works for them – so please, if you have any questions, get in touch.

You can contact Jennifer Pearson on 0191 211 7968 or email [email protected]