Schedule 1: The electronic communications code Part 3: Assignment of code rights, and upgrading and sharing of apparatus
Part 3 of the new code makes provision about the assignment of code rights, and the upgrading and sharing of apparatus.
	Paragraph 16 provides that an operator may assign an agreement under which code rights are conferred to another operator, enabling the second operator to ‘stand in the shoes’ of the first. An operator may assign only the entirety of the agreement and the code rights it contains and may not separately assign the individual code rights it confers. The other party to the agreement (the site provider) is not permitted to prevent or make such an assignment subject to conditions. After the date of the assignment the assignor operator is not liable for any breach of the agreement by the assignee operator, provided that notice of the assignment is given to the other party (i.e. to the site provider). If, however, the assignor operator had agreed to guarantee the performance of the assignee operator, in accordance with paragraph 16, the guarantee will still apply. Such a guarantee agreement may impose liabilities on the assignor operator only for the obligations of its immediate assignee operator. The same principle applies as between subsequent assignors and assignees in the event that the agreement is the subject of further assignments. Paragraph 16 does not affect the position of third party guarantees that may have been given in relation to the original agreement (e.g. a guarantee given to a site provider by a bank or group company of the operator).
	Paragraph 17 confers a statutory right on an operator who has obtained an agreement to install or keep apparatus on land to upgrade or share that apparatus, without needing the agreement of the site provider, or having to pay in order to do so. Specific conditions must be met for this right to apply. If the conditions are not met, the operator must seek agreement for the right, in the normal way, under Part 2. Paragraph 17(5) prevents the parties contracting out of the right or making it subject to conditions. It should be noted that paragraph 24 (which deals with the amount to be paid for code rights) prevents the right in paragraph 17 from being taken into account when the value of an agreement is being considered.
	Paragraph 18 has the same effect as paragraph 29 of the existing code. Its purpose is to facilitate sharing of apparatus between: (i) one or more operators to whom the code has been applied by Ofcom under section 106 of the 2003 Act; (ii) other providers of electronic communications networks to whom the code has not been applied by Ofcom; and (iii) qualifying persons whom the Secretary of State may designate by regulations. At least one of the parties to such an agreement must be an operator to whom Ofcom has applied the code. The effect of paragraph 18 is that the provisions of the code may not be interpreted so as to restrict the operators’ agreement to share apparatus with each other. Paragraph 18 does not affect the interpretation of an agreement between an operator and a site provider.