Policy background Digital infrastructure
The electronic communications code ("the code") enables electronic communications network providers to install and maintain electronic communications networks by giving network operators certain rights. Under the code, operators have rights to install and keep electronic communications apparatus on land. Generally, the code requires that operators secure the agreement of the land owner before installing apparatus, but also provides that when permission is not given by the land owner, an operator can apply to the County Court or Sheriff Court in Scotland for permission. The previous code was found in the Telecommunications Act 1984, pre-dating the introduction of mobile networks in the United Kingdom and was widely considered to be out of date and in need of reform.
	The government asked the Law Commission to review the code in 2012. The Law Commission published a detailed report on 28 February 2013, including detailed recommendations for reform of the code, but also advised government to carry out further consultation and research in some areas before proceeding.
	Following formal consultation in February 2015 and further analysis work, on 17 May 2016 the government published A New Electronic Communications Code, setting out plans to legislate. The Act reforms the underpinning rights that communications providers have to acquire land - moving to a "no scheme" valuation regime that ensures property owners will be fairly compensated for use of their land, but restricts their ability to profit from the public need for communications infrastructure. In this respect, it will put the telecommunications sector on a similar footing to utilities like electricity and water, and reduce the cost of providing infrastructure.
	The new code also provides new rights to upgrade and share infrastructure. The government intends infrastructure sharing to assist future deployment of technology such as 5G. Administrative changes to court processes are intended to allow for faster dispute resolution, making sure that disputes do not delay construction and maintenance of communications infrastructure.
	The Act also enables an existing temporary relaxation of the rules for installing communications apparatus to be made permanent in order to further facilitate broadband infrastructure rollout. Communications network providers with rights under the electronic communications code ("code operators") are permitted to construct infrastructure on public land and take rights over private land. In addition to these rights, code operators are subject to conditions and restrictions relating to the installation, retention and use of electronic communications apparatus as set out in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (SI 2003/2553) made under section 109 of the 2003 Act ("the 2003 regulations"). Section 109 was amended by the Growth and Infrastructure Act 2013, subject to a sunset provision, enabling changes to be made to these regulations relating to the installation of broadband cabinets and poles, relaxing the notification requirements placed on code operators, as well as the general requirement placed on them to bury new overhead lines underground. Complementary changes were made to planning legislation that enabled the installation of the infrastructure. The Act allows the sunset provision in the 2003 regulations to be removed.
	In 2013 the government consulted on the proposed planning changes. In response to concerns expressed in the consultation that the removal of prior approval requirements might lead to the insensitive siting of cabinets and poles, it was agreed that communications providers and planning authorities would develop and commit to a code of practice on the siting and appearance of apparatus to safeguard against this. On 5 March 2015 the Minister for the Digital Economy made a written statement announcing the outcome of a review of the operation of the code of practice. The review was conducted by a working group comprising representatives from a range of industry and sector organisations including the Planning Officers Society, English Heritage, the National Parks Authorities, BT, Virgin Media and the UK Competitive Telecommunications Association (UKCTA). The working group jointly agreed that overall the code appeared to be working well. A further review was conducted in 2016 and reached a similar conclusion. An updated version of the code of practice was published on 22 November 2016. The government believes that the planning changes have been proven to work well and that the removal of the sunset provision will support continued rollout of superfast broadband and future technologies.
	The Act also contains a number of measures relating to spectrum and wireless telegraphy licences. Spectrum is the term generally given to the electromagnetic frequency range from 3kHz to 300GHz, considered the part of the electromagnetic spectrum that can be used for wireless communication. The government considers that making better use of spectrum is essential to facilitate the development of the United Kingdom’s digital communications infrastructure. Spectrum is national asset owned by the government, which is then licensed by Ofcom to a wide range of civil uses. Ofcom is responsible for managing and granting rights of use in relation to spectrum through duties and obligations under the 2003 Act and the Wireless Telegraphy Act 2006 ("the 2006 Act"). The Act implements a number of measures that were first announced in the 2013 strategy paper, Connectivity, content and consumers: Britain's digital platform for growth.
	White spaces are unused parts of allocated spectrum. These frequencies are not always used at a specific time or in a specific location. They are a technical consequence of the way spectrum bands are allocated, but they are also wasted space. The government is keen that better use is made of white space, and new technologies known as white space devices will share spectrum bands with existing users. This process is known as dynamic spectrum access and it enables white space devices, operating in frequency bands authorised by Ofcom, to connect to geolocation databases which identify when and where spectrum may be available for use. These databases are not regulated under existing legislation. The Act allows Ofcom to register and then regulate such database providers so that it is better placed to undertake its spectrum management duties and prevent interference and to help facilitate dynamic spectrum access.
	Currently, where there is a contravention of a provision, term or limitation of a spectrum licence, Ofcom can revoke (or vary) the licence or prosecute. In limited circumstances, Ofcom may impose a financial penalty. The government’s view is that the current enforcement powers available to Ofcom in relation to such a contravention are not necessarily proportionate or sufficiently flexible in all cases. For example, spectrum licences granted to mobile network operators contain requirements to achieve certain rates of coverage, such as the term in the 900 MHz and 1800 MHz licences requiring 90% coverage of the United Kingdom’s landmass by the end of 2017. If these requirements are not met Ofcom’s only available sanction is to revoke the licence. The Act provides Ofcom with powers to issue financial penalties if matters such as coverage requirements are not satisfied.