Product Security and Telecommunications Infrastructure Act 2022 (c. 46)

PART 2 U.K. Telecommunications infrastructure

Rights to upgrade and share apparatus U.K.

57 Rights under the electronic communications code to share apparatus U.K.

(1) The electronic communications code is amended as follows.

(2) In paragraph 3 (meaning of “code right”)—

(a) the existing wording becomes sub-paragraph (1);

(b) in sub-paragraph (1)—

(i) after paragraph (c) insert—

“(ca) to share with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land,”;

(ii) after paragraph (e) insert—

“(ea) to carry out any works on the land for the purposes of, or in connection with, sharing with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land or elsewhere,”;

(iii) after paragraph (f) insert—

“(fa) to enter the land for the purposes of, or in connection with, sharing with another operator the use of electronic communications apparatus which the first operator keeps installed on, under or over the land or elsewhere,”;

(c) after sub-paragraph (1) insert—

“(2) In sub-paragraph (1), references to “the first operator” are to the operator mentioned in the opening words of that sub-paragraph.”

(3) For paragraph 4 (the statutory purposes) substitute—

“4 (1) In this code “the statutory purposes”, in relation to an operator, means—

(a) in relation to sharing rights, the purposes of enabling the provision by other operators of their networks, and

(b) in relation to rights other than sharing rights—

(i) the purposes of providing the operator’s network, or

(ii) the purposes of providing an infrastructure system.

(2) In sub-paragraph (1), “sharing right” means a right within paragraph 3(1)(ca), (ea) or (fa).”

(4) In paragraph 9 (conferral of code rights)—

(a) the existing wording becomes sub-paragraph (1), and

(b) after that sub-paragraph insert—

“(2) But in a case where an operator (“the first operator”) has the right to share the use of electronic communications apparatus with another operator (“the second operator”) under or by virtue of an agreement under this Part, sub-paragraph (1) does not prevent the agreement from providing for the first operator to permit the second operator to exercise, in connection with the sharing, a code right conferred on the first operator by the agreement.”

(5) In paragraph 13 (access to land)—

(a) in sub-paragraph (1)(a), for “paragraph 3” substitute “paragraph 3(1)”;

(b) in sub-paragraph (2), for “paragraph 3” substitute “paragraph 3(1)”.

(6) In paragraph 38 (right of landowner or occupier of neighbouring land to require removal of electronic communications apparatus), in sub-paragraph (3), for “paragraph 3(h)” substitute “paragraph 3(1)(h)”.

(7) The amendments made by this section do not affect any rights conferred before the coming into force of this section by an agreement under Part 2 of the electronic communications code.

Commencement Information

I1 S. 57 not in force at Royal Assent, see s. 79

I2 S. 57 in force at 7.2.2023 by S.I. 2023/109, reg. 2(a)

58 Upgrading and sharing of apparatus: subsisting agreements U.K.

(1) Schedule 2 to the Digital Economy Act 2017 (the electronic communications code: transitional provision) is amended as follows.

(2) In the italic heading before paragraph 5, omit “, upgrading and sharing”.

(3) In paragraph 5 (exclusion of assignment etc provisions)—

(a) in sub-paragraph (1), for the words from the beginning to “apparatus)” substitute “Paragraph 16 of the new code (assignment of code rights)”, and

(b) in sub-paragraph (2), for “Part 3” substitute “Paragraph 16”.

(4) After paragraph 5 insert—

“Upgrading and sharing provisions

5A Paragraph 17 of the new code (power for operator to upgrade or share apparatus) applies in relation to an operator who is a party to a subsisting agreement, but as if for sub-paragraphs (1) to (6) there were substituted—

“(1) This paragraph applies where—

(a) an operator (“the main operator”) keeps electronic communications apparatus installed under land, and

(b) the main operator is a party to a subsisting agreement in relation to the electronic communications apparatus.

(2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may—

(a) upgrade the electronic communications apparatus, or

(b) share the use of the electronic communications apparatus with another operator.

(3) The first condition is that the upgrading or sharing has no adverse impact on the land.

(4) The second condition is that the upgrading or sharing imposes no burden on any person with an interest in the land.

(5) For the purposes of sub-paragraph (4) a burden includes anything that—

(a) has an adverse effect on the person’s enjoyment of the land, or

(b) causes loss, damage or expense to the person.

(6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land.

(7) A notice attached for the purposes of sub-paragraph (6) must—

(a) be attached in a position where it is reasonably legible,

(b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,

(c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,

(d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and

(e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing.

(8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2).

(9) Any agreement under Part 2 of this code is void to the extent that—

(a) it prevents or limits the upgrading or sharing, in a case where the conditions mentioned in sub-paragraphs (3), (4) and (6) are met, of any electronic communications apparatus to which the agreement relates that is installed under land, or

(b) it makes upgrading or sharing of such electronic communications apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money).

(10) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land for the purpose of upgrading or sharing the use of the electronic communications apparatus.

(11) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place.

(12) In this paragraph—

• “the relevant land” means—

  (a)

  in a case where the main operator has a right to enter the land under which the electronic communications apparatus is installed, that land;

  (b)

  in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out;

• “subsisting agreement” has the meaning given by paragraph 1(4) of Schedule 2 to the Digital Economy Act 2017.””

Commencement Information

I3 S. 58 not in force at Royal Assent, see s. 79

I4 S. 58 in force at 17.4.2023 by S.I. 2023/109, reg. 3(a)

59 Upgrading and sharing of apparatus installed before 29 December 2003 U.K.

(1) The electronic communications code is amended as follows.

(2) In paragraph 15 (introductory), in paragraph (b), for the words “to which such an agreement relates” substitute “which—

(i) is electronic communications apparatus to which such an agreement relates, or

(ii) is electronic communications apparatus installed before 29 December 2003”.

(3) After paragraph 17 insert—

“17A (1) This paragraph applies where—

(a) an operator (“the main operator”) keeps electronic communications apparatus installed under land,

(b) the main operator is not a party to an agreement under Part 2 of this code in relation to the electronic communications apparatus, and

(c) the electronic communications apparatus was installed before 29 December 2003.

(2) If the conditions in sub-paragraphs (3), (4) and (6) are met, the main operator may—

(a) upgrade the electronic communications apparatus, or

(b) share the use of the electronic communications apparatus with another operator.

(3) The first condition is that the upgrading or sharing has no adverse impact on the land.

(4) The second condition is that the upgrading or sharing imposes no burden on any person with an interest in the land.

(5) For the purposes of sub-paragraph (4) a burden includes anything that—

(a) has an adverse effect on the person’s enjoyment of the land, or

(b) causes loss, damage or expense to the person.

(6) The third condition is that, before the beginning of the period of 21 days ending with the day on which the main operator begins to upgrade the electronic communications apparatus or (as the case may be) share its use, the main operator attaches a notice, in a secure and durable manner, to a conspicuous object on the relevant land.

(7) A notice attached for the purposes of sub-paragraph (6) must—

(a) be attached in a position where it is reasonably legible,

(b) state that the main operator intends to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,

(c) state the date on which the main operator intends to begin to upgrade the electronic communications apparatus or (as the case may be) share its use with another operator,

(d) state, in a case where the main operator intends to share the use of the electronic communications apparatus with another operator, the name of the other operator, and

(e) give the name of the main operator and an address in the United Kingdom at which the main operator may be contacted about the upgrading or sharing.

(8) Any person giving a notice at that address in respect of that electronic communications apparatus is to be treated as having been given that address for the purposes of paragraph 91(2).

(9) Nothing in this paragraph is to be read as conferring a right on the main operator to enter the land for the purpose of upgrading or sharing the use of the electronic communications apparatus.

(10) References in this paragraph to sharing electronic communications apparatus include carrying out works to the electronic communications apparatus to enable such sharing to take place.

(11) In this paragraph “the relevant land” means—

(a) in a case where the main operator has a right to enter the land under which the electronic communications apparatus is installed, that land;

(b) in any other case, the land on which works will be carried out to enable the upgrading or sharing to take place or, where there is more than one set of works, the land on which each set of works will be carried out.”

(4) In paragraph 24 (determination of consideration for agreement), in sub-paragraph (3)(b), for “and 17” substitute “, 17 and 17A”.

Commencement Information

I5 S. 59 not in force at Royal Assent, see s. 79

I6 S. 59 in force at 17.4.2023 by S.I. 2023/109, reg. 3(b)