GLOSSARY
Electronic Communications Code
/ɪlɛkˈtrɒnɪk/ /kəmjuːnɪˈkeɪʃ(ə)n/ /kəʊd/
Definition
The Electronic Communications Code, inserted into the Communications Act 2003, Schedule 3A, by the Digital Economy Act 2017. A code right is granted in relation to an operator and any land, for the statutory purposes of providing an operator's network/infrastructure system, and for activities set out in the code.
View the related practice notes about Electronic Communications Code
Telecoms and media—Italy—Q&A guide
Telecoms and media—Italy—Q&A guideThis Practice Note contains a jurisdiction-specific Q&A guide to telecoms and media in Italy published as part of the Lexology Getting the Deal Through series by Law Business Research (published: July 2021).Authors: Simmons & Simmons LLP—Alessandra Bianchi1. Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?The primary legislation governing the communication sector in Italy is Legislative Decree No. 259/2003 (the Electronic Communications Code) as a result of EU directives from 2002 regulating the electronic communications networks and services, the authorisation of electronic communications networks and services, the interconnection of electronic networks and user rights.Also, the Italian Communications Authority (the Authority) issues resolutions as secondary legislation containing detailed rules in the offering of electronic communication services and networks. Indeed, the Authority, established by Law No. 249/1997, is a regulatory agency designed to actively promote the integration between the telecommunication and media markets and to supervise and monitor the markets.Moreover, the Data Protection Authority issues resolutions containing specific obligations for operators in the storage, processing and use of personal data information.The Ministry of Economic Development – Communications Department (the Ministry) is in charge, inter alia, of issuing authorisations and allocating the spectrum.A general authorisation is required to offer electronic communications services in Italy. Such authorisation can be issued only to:•entities with a permanent establishment
Telecoms leases—the previous Electronic Communications Code—drafting points and due diligence [Archived]
Telecoms leases—the previous Electronic Communications Code—drafting points and due diligence [Archived]ARCHIVED: This archived Practice Note is drafted in the context of the previous/old Electronic Communications Code (the previous Code) (and highlights drafting points and due diligence where a property may be subject to telecommunications leases under the previous Code), but the contents remain relevant for the purposes of the transitional provisions set out in the new Code. It is not maintained and is for background information purposes only.The new Code (under Schedule 3A, Part 1 to the Communications Act 2003) came into force on 28 December 2017. The transitional provisions in the new Code, set out in Schedule 2 to the Digital Economy Act 2017, provide that while subsisting agreements under the previous Code (ie an agreement under paragraph 2 or 3 or a court order granting Code rights under paragraph 5 of the previous Code) will continue to have effect as an agreement under the new Code, this is subject to modifications, including in relation to termination in respect of certain subsisting agreements. The transitional provisions also preserve the rights of the operator or landowner as appropriate to rely on provisions under the previous Code including making a paragraph 5 application for a court order for a new agreement, or using the paragraph 20 or 21 procedure for removal or alteration of apparatus.
The General Conditions of Entitlement
The General Conditions of EntitlementThis Practice Note provides practical guidance on the General Conditions of Entitlement (the General Conditions) published by Ofcom. The General Conditions comprise general regulatory rules made by Ofcom which govern the provision of electronic communications networks (ECNs) and electronic communications services (ECSs).BrexitThe General Conditions are rules made by Ofcom which are derived from principles established by European directives (those principles being implemented into UK law largely via the Communications Act 2003 (CA 2003)). These rules remain aligned with the European directive which currently governs telecoms across the EU because that directive, ie Directive (EU) 2018/1972 (the European Electronic Communications Code), was transposed into UK law in December 2020 before IP completion day (which was 11.00 pm on 31 December 2020). Save for certain minor changes which Ofcom introduced on IP completion day in order to align the General Conditions with legislation updated on that date, the General Conditions were not otherwise impacted by IP completion day.Reform of the General Conditions to implement the European Electronic Communications CodeCA 2003 introduced a ‘general authorisation regime’ for the provision of ECNs and ECSs. Excluding wireless telegraphy, communications providers (CPs) are ‘generally authorised’ to provide ECNs and ECSs provided that they comply with the General Conditions. In other words, they do not require individual licences, but must instead comply with the General Conditions.The types
Electronic communications: Authorisation Directive [Archived]
Electronic communications: Authorisation Directive [Archived]ARCHIVED: This Practice Note has been archived and is not maintained.This Practice Note deals with Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services as amended by Directive 2009/140/EC (Authorisation Directive). It is part of a series of Practice Notes on core elements of the EU regulatory framework for electronic communications.In the EU, the provision of electronic communications networks and services in each Member State is governed by a common regulatory framework, which originally comprised five directives (Framework).The objective of the Framework was to establish a harmonised framework for the regulation of electronic communications networks and services throughout the EU.In December 2018, Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast) (the European Electronic Communications Code) was published in the Official Journal of the EU and came into force three days after publication. The European Electronic Communications Code consolidates four of the directives (including the Authorisation Directive) which make up the Framework, with the objective of driving investment in new high capacity networks, primarily 5G and new fibre networks. Member States have until 21 December 2020 to implement it into national law.The Framework identified specific policy objectives and the measures that Member States must adopt to achieve those objectives. These objectives include ensuring that networks
New Electronic Communications Code—terminating and modifying Code rights
New Electronic Communications Code—terminating and modifying Code rightsFORTHCOMING CHANGE: The Telecommunications Infrastructure (Leasehold Property) Act 2021 (TI(LP)A 2021) came into force on 15 March 2021 for the purposes of empowering the Secretary of State to make regulations in respect of the new Part 4A to be inserted into the Electronic Communications Code contained in Schedule 3A Part 1 to the Communications Act 2003 (the Code). The substantive provisions will come into force on a date to be appointed. Part 4A makes provision for the court to make an order imposing an agreement for Code rights for the purposes of providing electronic communications services to multiple dwelling leased premises. A Part 4A order can be applied for where a leaseholder in occupation of premises within the scope of Part 4A requests that an operator provides electronic communications services, and the operator has served a prescribed number of, and type of, notices on the required grantor within prescribed timescales seeking agreement to the grant of rights, but the required grantor has not responded or objected. TI(LP)A 2021 also makes various consequential amends to existing provisions in the Code in order to ensure that provisions in respect of jurisdiction, compensation and removal also apply to Part 4A. For more information in respect of the Code, see Practice Note: New Electronic Communications Code—Code rights.Accordingly, all references in this
Electronic communications: Framework Directive [Archived]
Electronic communications: Framework Directive [Archived]ARCHIVED: This Practice Note has been archived and is not maintained.This Practice Note relates to Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services as amended by Directive 2009/140/EC (the Framework Directive). It is part of a series of Practice Notes on core elements of the EU regulatory framework for electronic communications.In the EU, the provision of electronic communications networks and services in each Member State is governed by a common regulatory framework, which originally comprised five directives (the Framework).The objective of the Framework was to establish a harmonised framework for the regulation of electronic communications networks and services throughout the EU. In December 2018 Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast) (the European Electronic Communications Code) was published in the Official Journal of the EU and came into force three days after publication. The European Electronic Communications Code consolidates four of the directives (including the Framework Directive) which make up the Framework, with the objective of driving investment in new high capacity networks, primarily 5G and new fibre networks. Member States have until 21 December 2020 to implement it into national law. The Framework identified specific policy objectives and measures that Member States had to adopt in order to achieve
Previous Electronic Communications Code [Archived]
Previous Electronic Communications Code [Archived]ARCHIVED: This archived Practice Note is drafted in the context of the previous/old Electronic Communications Code (the previous Code) (providing guidance in respect of the procedure to be followed when removing telecoms equipment under paragraphs 20 and 21 of the previous Code), but the contents remain relevant for the purposes of the transitional provisions set out in the new Code. It is not maintained and is for background information purposes only.The new Code (under Schedule 3A, Part 1 to the Communications Act 2003) came into force on 28 December 2017. The transitional provisions in the new Code, set out in Schedule 2 to the Digital Economy Act 2017, provide that while subsisting agreements under the previous Code (ie an agreement under paragraph 2 or 3 or a court order granting Code rights under paragraph 5 of the previous Code) will continue to have effect as an agreement under the new Code, this is subject to modifications, including in relation to termination in respect of certain subsisting agreements. The transitional provisions also preserve the rights of the operator or landowner as appropriate to rely on provisions under the previous Code including making a paragraph 5 application for a court order for a new agreement, or using the paragraph 20 or 21 procedure for removal or alteration of apparatus. For further details
Electronic communications: Universal Service Directive [Archived]
Electronic communications: Universal Service Directive [Archived]ARCHIVED: This Practice Note has been archived and is not maintained.This Practice Note relates to Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services as amended by Directive 2009/136/EC (Universal Service Directive). It is part of a series of Practice Notes on core elements of the EU regulatory framework for electronic communications.In the EU, the provision of electronic communications networks and services in each Member State is governed by a common regulatory framework which originally comprised five directives (the Framework).The objective of the Framework was to establish a harmonised framework for the regulation of electronic communications networks and services throughout the EU.In December 2018, Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast) (the European Electronic Communications Code) was published in the Official Journal of the EU and came into force three days after publication. The European Electronic Communications Code consolidates four of the directives (including the Universal Service Directive) which make up the Framework, with the objective of driving investment in new high capacity networks, primarily 5G and new fibre networks. Member States have until 21 December 2020 to implement it into national law.The Framework identified specific policy objectives and measures that Member States had to adopt in order
View the related q&as about Electronic Communications Code
A telecoms provider is holding over under a protected tenancy. The rent in the expired lease was expressed to be reviewable annually with RPI. Can RPI rent reviews be carried out in the holding over period or does the rent remain at the rate it was in the year the lease expired?
A telecoms provider is holding over under a protected tenancy. The rent in the expired lease was expressed to be reviewable annually with RPI. Can RPI rent reviews be carried out in the holding over period or does the rent remain at the rate it was in the year the lease expired?In answering this Q&A, we assume that:•the agreement may include rights under the Electronic Communications Code (under Schedule 2 to the Telecommunications Act 1984 (TA 1984), as amended by the Communications Act 2003) (Code). However, the current Code does not make provision for rent reviews (under paragraph 7 it makes provision for consideration for the grant of rights in certain specified circumstances including where an agreement is granted by court order, but without making detailed provision as to the mechanics of payment of that consideration) and accordingly is unlikely to be relevant for the purposes of determining whether or not rent reviews continue outside the contractual term. See: Electronic Communications—overview for further information in respect of the
Under the new Electronic Communications Code, to what extent can a purchaser of land in Scotland rely on a termination notice served by the seller on an operator on the ground that the land will be redeveloped where it is the purchaser who will redevelop the land?
Under the new Electronic Communications Code, to what extent can a purchaser of land in Scotland rely on a termination notice served by the seller on an operator on the ground that the land will be redeveloped where it is the purchaser who will redevelop the land?The new Electronic Communications Code (the ‘Code’) is governed by, and set out in sections 106–119 and the new Schedule 3A to the Communications Act 2003 (CA 2003), inserted by section 4 and Schedule 1 to the Digital Economy Act 2017. The new Code (which was brought into force on 28 December 2017) replaces the previous Electronic Communications Code, set out in Schedule 2 to the Telecommunications Act 1984 as amended by CA 2003 (the ‘previous Code’).The new Code provides telecommunications operators with statutory rights to facilitate the creation and operation of their networks and aims to support the roll-out of digital technology such as 4G and superfast broadband.This Q&A assumes that there is a lease or agreement in place which is one to which the Code termination provisions apply. A site provider who is party to a Code agreement, may bring the agreement to an end where the site provider intends to redevelop all or part of the land to which the agreement relates, or any neighbouring land, and could not reasonably do so unless the Code agreement comes to an end
Where a property is subject to a (BT) wayleave agreement, should the transfer expressly state that the property is being sold subject to that agreement? Should the transfer contain any additional clauses to protect the seller in relation to post-sale non-compliance with the obligations on the part of the landowner in the agreement?
Where a property is subject to a (BT) wayleave agreement, should the transfer expressly state that the property is being sold subject to that agreement? Should the transfer contain any additional clauses to protect the seller in relation to post-sale non-compliance with the obligations on the part of the landowner in the agreement?It is not clear how the wayleave has arisen. One often sees agreements entered into with the providers of electronic communications under the Electronic Communications Code, the Code( see further Practice Note: New Electronic Communications Code—Code rights) and it is assumed therefore that this is the case here.The Code is to be found in Part 1 of Schedule 3A to the Communications Act 2003 (CA 2003) (inserted by the Digital Economy Act 2017 (DEA 2017)). The Code gives operators (as defined in CA 2003, Sch 3A, Pt 1, para 2) the right to exercise code rights. They in turn are defined and include, in particular, the right to install electronic communications apparatus on, under or over the land; to inspect, maintain, adjust, alter, repair, upgrade or operate it and to enter land for those purposes (CA 2003, Sch 3A, Pt 1, para 3).A Code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator (CA 2003, Sch 3A, Pt
If a tenant operator of an electronic communications code agreement exercises a contractual break clause, will the agreement end both contractually and for the purpose of the Code or will it continue after the break date under paragraph 30 of the Code?
If a tenant operator of an electronic communications code agreement exercises a contractual break clause, will the agreement end both contractually and for the purpose of the Code or will it continue after the break date under paragraph 30 of the Code? For this Q&A, we have assumed that none of the transitional provisions apply to the code agreement (as to which, see Practice Note: New Electronic Communications Code—Code rights (at sections: Transitional provisions and Interaction between the new Code and LTA 1954 in respect of subsisting agreements).This question raises the ability of an ‘operator’ under the Electronic Communications Code (the ‘Code’) (set out in Part 1 of Schedule 3A to the Communications Act 2003) to terminate an agreement under Part 2 of
The new Electronic Communication Code includes a right, at 3(h), to ‘interfering or obstructing a means of access to or from land, whether or not the electronic communications apparatus is on that land (although only if the occupier of any other land is bound by a Code right)’. Would this Code right extend to access over land which is owned by a third party? The telecommunication site is located within a compound owned by A, but access (and parking) is outside this compound on land owned by B. Can B be bound by this Code right?
The new Electronic Communication Code includes a right, at 3(h), to ‘interfering or obstructing a means of access to or from land, whether or not the electronic communications apparatus is on that land (although only if the occupier of any other land is bound by a Code right)’. Would this Code right extend to access over land which is owned by a third party? The telecommunication site is located within a compound owned by A, but access (and parking) is outside this compound on land owned by B. Can B be bound by this Code right?The New Electronic Communications Code (the New Code) was brought into force on 28 December 2017 under the auspices of the Digital Economy Act 2017 (DEA 2017). The purpose of the New Code is to regulate the relationships between landowners and those network operators that site equipment on their land.Paragraph 3 of the New Code sets out the
If there is a restrictive covenant on a registered title stating that the land cannot be used other than as a sports/playing field, does the new Telecoms Code override this and can the landowner be forced to grant a lease in breach of covenant?
If there is a restrictive covenant on a registered title stating that the land cannot be used other than as a sports/playing field, does the new Telecoms Code override this and can the landowner be forced to grant a lease in breach of covenant?This question raises the interplay between private law rights and obligations affecting land and the statutory rights and duties which exist between landowners and telecommunications operators under the Electronic Communications Code (Schedule 3A, Part 1 to the Communications Act 2003, as inserted by the Digital Economy Act 2017) (the Code). The former flow in this context from any restrictive covenants which bind the land while the latter are to be found in the Code.The starting point is that a Code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator (para 9 of the Code). Provision is made for successors in title and those whose interests are subsequently created out of the occupier’s interest to be bound by it (para 10 of the Code). If an occupier of land is bound by a restrictive covenant, it
Under the new Electronic Communications Code, following contractual expiry of a (Landlord and Tenant Act 1954 excluded) telecoms lease, would landlord break clauses have to be exercised in addition to serving an 18-month notice under Part 5?
Under the new Electronic Communications Code, following contractual expiry of a (Landlord and Tenant Act 1954 excluded) telecoms lease, would landlord break clauses have to be exercised in addition to serving an 18-month notice under Part 5?The Digital Economy Act 2017 inserted a new schedule 3A into the Communications Act 2003. Schedule 3A is the text of a new Electronic Communications Code (‘the Code’).Part 5 of the Code makes provision for a landlord under a telecoms lease under the Code to terminate or modify that lease.Paragraph 31 of the Code (which is contained in Part 5) makes provision for a site provider (meaning a landlord) under a code agreement to bring the agreement to an end.In order to give notice, the site provider must serve a notice in accordance with paragraph 31 of the Code. A notice which is given under paragraph 31 must comply with certain conditions which are specified in paragraph 31.Paragraph 31(3) of the Code sets out the length of notice which must be given by the site provider:‘The date specified under sub-paragraph (2)(b) must fall—(a) after the end of the period of 18 months beginning with the day on which the notice is given, and(b) after the time at which, apart from paragraph 30, the code right to
What is the status of an Operator who has remained in occupation following the expiry of an agreement under the previous Electronic Communications Code (prior to the new Code coming into force) and which was excluded from the security of tenure provisions of the Landlord and Tenant Act 1954? Should the Operator continue to pay rent based on the terms of the agreement?
What is the status of an Operator who has remained in occupation following the expiry of an agreement under the previous Electronic Communications Code (prior to the new Code coming into force) and which was excluded from the security of tenure provisions of the Landlord and Tenant Act 1954? Should the Operator continue to pay rent based on the terms of the agreement?Following the enactment of the Digital Economy Act 2017 (DEA 2017), the new Electronic Communications Code (the ‘new Code’) came into force on 28 December 2017. The previous Code was repealed as of this date but will remain relevant to existing agreements pursuant to transitional provisions in DEA 2017, Sch 2.The Codes are designed to facilitate the installation and maintenance of electronic communications networks and gives various rights to the providers of such networks (‘Operators’), and of key importance are the security of tenure provisions. Once an Operator has been given consent to occupy land, they will have a statutory right to leave the installed equipment on that land even after the expiry of the fixed contractual term.As the contractual term has expired, but the Operator has remained in occupation, it is first necessary to consider whether the previous Code or the transitional provisions pursuant to the new Code will apply.DEA 2017, Sch 2 provides as follows:‘Interpretation(1) This paragraph has effect for
Does the new Electronic Communications Code govern the relationship between ‘Code operators’ and non-Code operators, who are sharing a site/apparatus? If not, what provisions will govern this relationship?
Does the new Electronic Communications Code govern the relationship between ‘Code operators’ and non-Code operators, who are sharing a site/apparatus? If not, what provisions will govern this relationship?The new Electronic Communications Code (the ‘new Code’) is governed by, and set out in sections 106–119 and the new Schedule 3A Part 1 of the Communications Act 2003 (CA 2003), inserted by schedule 4 and schedule 1 to the Digital Economy Act 2017 (DEA 2017).Under Pt 1 of the new Code, a Code right is defined as being a right in relation to an operator and any land, for the statutory purposes of providing an operator's network or an infrastructure system, to carry out various activities. These activities include:•installing and keeping installed electronic communications apparatus (which are defined at Sch 3A Pt 1 (para 5)) on, over or under land•inspecting, maintaining, repairing, altering, upgrading, or operating the electronic communications apparatus on, over or under land, or entering land and carrying out works in connection with these activities in respect of apparatus on over or under land or elsewhere•carrying out any works for, or in connection with, the installation of electronic communications apparatus on, over or under land or elsewhere•connecting to a power supplyAn operator is a party to whom the new Code applies under a direction from Ofcom. A list of operators
What are the obligations of a utilities supplier to remove gas pipes or electricity cables from land that is due to be excavated?
What are the obligations of a utilities supplier to remove gas pipes or electricity cables from land that is due to be excavated?In answering this Q&A, we have assumed this scenario does not relate to the Electronic Communications Code, which is a separate regime for certain telecommunications network operators.The starting point is to consider the terms of any easements or wayleave agreements entered into with the provider. Often such documents will set out termination or ‘lift and shift’ provisions (which enable a landowner to require the provider to relocate the equipment). See Precedent: Lift and shift clause for an example.In the absence of any such express termination or lift and shift provisions, note the following.ElectricityWhether an electricity wayleave is binding on a purchaser depends on whether the wayleave was contractual or statutory. A statutory wayleave binds successors in title by virtue of Schedule 4, para 6(6) to the Electricity Act 1989 (EA 1989).As a matter of contract law a contractual wayleave will not bind a person who was not a party to it. The purchaser of land therefore does not need to take any step in order not to be bound by a wayleave granted by a predecessor in title. However, this ‘automatic’ effect is only of limited significance in practice. If the purchaser of the land does not do anything that would allow
Speed up all aspects of your legal work with tools that help you to work faster and smarter. Win cases, close deals and grow your business–all whilst saving time and reducing risk.