Part 2: Telecommunications Infrastructure Section 58: Upgrading and sharing of apparatus: subsisting agreements
This Section amends Schedule 2 of the Digital Economy Act 2017 (the Electronic Communications Code: Transitional Provision) to allow operators who have subsisting agreements to upgrade and share apparatus in some circumstances. A "subsisting agreement" is defined in paragraph 1 of Schedule 2 to the Digital Economy Act 2017 as an agreement (which was in force when the Code came into force) for the purposes of paragraphs 2 or 3, or an order under paragraph 5, of schedule 2 to the Telecommunications Act 1984. Subsisting agreements are agreements concluded for those purposes before 28 December 2017, when the Digital Economy Act 2017 came into force.
	Subsection (3) removes the exemption in paragraph 5 of Schedule 2 to the Digital Economy Act 2017 for upgrading and sharing rights in relation to a subsisting agreement. Parties with subsisting agreements may not use the automatic rights to upgrade and share as set out in paragraph 17 of the Code. Instead, subsisting agreements are subject to the more restrictive rights to upgrade and share apparatus set out in paragraph 5A inserted into Schedule 2 to the Digital Economy Act 2017 by subsection (4).
	This applies a modified version of the existing paragraph 17 of the Code ("the modified paragraph 17") to subsisting agreements. The narrower conditions in the modified paragraph 17 mean that the rights are limited to apparatus installed under land, and are only exercisable where (a) the upgrading and sharing activity will have no adverse impact on the land under which the apparatus is situated; and (b) the upgrading and sharing activity will impose no burden on the other party to the agreement, which includes anything that has an adverse effect on that person’s enjoyment of the land or causes them any loss, damage or expense.
	The exercise of these rights is subject to a notice requirement, which requires the main operator to affix a notice in a secure and durable manner, on a conspicuous object on the relevant land. The notice may be affixed by either the main operator or an operator acting under the authority of the main operator in the exercise of the main operator’s right to carry out the relevant works. This has to be done no later than 21 days before the upgrading and sharing works take place. The modified paragraph 17(12) states that relevant land is either the land on which the apparatus is situated, where the operator has a right to enter the land, or in all other cases, the land where the works will be carried out to enable the upgrading and/or sharing of the apparatus to take place.
	The modified paragraph 17(7) sets out the manner in which the notice must be attached. The modified paragraph 17(8) confirms that any address provided by an operator within a modified paragraph 17(7) notice will be treated as the proper address for any subsequent notices or other documents in accordance with paragraph 91(2) of the Code.
	The modified paragraph 17(9) makes clear that any terms in a subsisting agreement that prevent, limit or in any other way impose conditions on the rights to upgrade and share electronic communications apparatus where the conditions in the modified paragraph 17(3) and (4) have been met will be void. The modified paragraph 17(10) confirms that the upgrading and sharing rights do not confer a right of entry onto the relevant land. This means that unless an operator already has a right of entry onto the land, it cannot use the rights contained in the modified paragraph 17 to undertake upgrading or sharing which requires entry onto the land.
	The modified paragraph 17(11) confirms that, as is the case for the current upgrading and sharing rights under paragraph 17 of the Code, references to sharing electronic communications apparatus include carrying out works to the apparatus to enable such sharing.