Guidance

Electronic Communications Code - Part 4A guidance

Published 26 December 2022

Overview

Providing greater access to fast, reliable and secure connections is a priority for this government. The economic, social and cultural benefits of improving digital connectivity are already self-evident, and improving our digital infrastructure to deliver Gigabit-capable connections will enable a step-change in what digital connectivity can contribute to our daily lives.

However, these benefits can only be realised to their fullest extent if they reach every home. It is for this reason that the government passed The Telecommunications Infrastructure (Leasehold Property) Act 2021 (“TILPA”), which will support those living in blocks of flats and apartments - also known as multi-dwelling units, or MDUs - to access broadband services.

Data provided by multiple operators suggested that around 40% of their requests for access receive no response. When an operator finds itself in this situation, our understanding is that the operator typically opts to bypass the property in order to maintain momentum of its wider deployment. The result of that operator’s commercial decision is that the residents within the property concerned are left with little choice but to accept that they will miss out on superior connections, such as the installation of fibre where there is currently only a copper line, or perhaps even miss out on a connection altogether. The government considers this to be unacceptable.

TILPA addresses this issue by amending the Electronic Communications Code^{[footnote 1]} to create a new streamlined route through the courts, named ‘Part 4A’. Operators can use the Part 4A process to access blocks of flats and apartments if a service has been requested by a tenant, but a landlord of connected land is repeatedly unresponsive to requests for access. This legislation will thus prevent a situation where a leaseholder is prevented from receiving a service simply due to the silence of a landlord.

Government policy in this area is focused on striking a proportionate balance between public benefits and the rights of private landlords. TILPA has been designed such that the terms applied to Part 4A code rights will ensure this balance between the public benefit of network rollout and private property rights is maintained. The terms which apply to the Part 4A code rights and the conditions which must be satisfied before applying to court under the Part 4A process are contained within two separate sets of regulations, as set out in more detail below.

This guidance has been prepared by the government as a tool to assist users of TILPA and the associated regulations and should be read in conjunction with that legislation. It explains some of the technical terms used in the legislation, however, it is only guidance and does not in any way change or override the provisions in the relevant legislation.

Guidance purpose

This guidance has been prepared in order to assist users of TILPA and the two sets of implementing regulations. Those implementing regulations are:

• The Telecommunications Infrastructure (Leasehold Property) (Conditions and Time Limits) Regulations 2022 - referred to in this guidance as the ‘Conditions and Time Limits’ Regulations
• Telecommunications Infrastructure (Leasehold Property) (Terms of Agreement) Regulations 2022 - referred to in this guidance as the ‘Terms of Agreement’ Regulations

Terms found in the ‘Conditions and Time Limits’ & ‘Terms of Agreement’ Regulations

Apparatus, The - In these regulations, “the apparatus” refers to apparatus installed on, under or over the connected land in the exercise of the Part 4A code right.^{[footnote 2]}

Code, The - “The Code” means “The Electronic Communications Code” as set out at Schedule 3A to the Communications Act 2003.^{[footnote 3]} The Code is the framework that underpins agreements between electronic communications network providers (‘operators’) and landowners with regards to the deployment of digital infrastructure under, on or over land.

Code Right - A “code right” is one of the rights listed at paragraph 3 of Schedule 3A to the Communications Act 2003. These include the rights to install electronic communications apparatus, inspect it, maintain it, and carry out works to it.^{[footnote 4]}

Connected Land - In these regulations, “connected land” is land which is in common ownership with the target premises, and is held or used for access to, or in connection with, the target premises.^{[footnote 5]} Examples of such areas are shared corridors or riser cupboards, which are often a necessary part of the route to connecting the target premises.

Electronic Communications Apparatus - In these regulations, “electronic communications apparatus” means equipment which is designed or adapted for use in connection with the provision of an electronic communications network (or for sending or receiving signals transmitted via an electronic communications network), lines, or structures designed or adapted for use in connection with the provision of such a network.^{[footnote 6]} Examples of such apparatus include fibre optic cabling, or node boxes connecting cabling together.

Electronic Communications Code, The - In these regulations, “The Electronic Communications Code” has the same meaning as “The Code”.^{[footnote 7]} Both terms refer to Schedule 3A to the Communications Act 2003. The Code is the framework that underpins agreements between electronic communications network providers (‘operators’) and landowners with regards to the deployment of digital infrastructure under, on or over land.

Emergency Works - In these regulations, “emergency works” means works carried out in order to stop, or prevent from occuring, anything which is likely to cause damage to people or property, interruption of a service provided by the operator, or substantial loss to the operator.^{[footnote 8]}

Final Notice - In these regulations, a “final notice” is the last notice which an operator must send before applying for rights under the Part 4A process. This notice must include a copy of the request notice, must state that unless the required grantor responds within 14 days, the operator intends to apply for a Part 4A order, and must explain the effect of a Part 4A order. The final notice is the fourth of four notices which an operator is required to send to the required grantor before applying for a Part 4A order.^{[footnote 9]}

Lessee In Occupation - In these regulations, a “lessee in occupation” occupies the ‘target premises’ under the terms of a lease. The Part 4A process can only be used if an operator has been requested to provide a service by a ‘lessee in occupation’ to the ‘target premises’. Whilst it will always depend on the specific circumstances of any individual case, a lease typically exists where the agreement between the parties provides for i) exclusive possession; ii) of defined premises; iii) for a fixed or periodic term; iv) for a rent. Examples of common scenarios in which someone is a ‘lessee in occupation’ would be a tenant at will, or a tenant under an Assured Shorthold or Assured Tenancy.

Multiple Dwelling Building - In these regulations, “multiple dwelling building” means a building containing two or more sets of premises used as, or intended for use as, a separate dwelling. The Part 4A process can currently only be used where the premises which the operator is seeking to connect (i.e. the ‘target premises’) forms part of a multiple dwelling building. An example of a multiple dwelling building would be a block of flats.^{[footnote 10]}

Operator - In these regulations, an “operator” is a person who, under a direction by Ofcom, has the Code applied to them for the purpose of providing an electronic communications network (or makes infrastructure available for that purpose) under the Code.^{[footnote 11]} Examples of Operators include EE and Virgin Media.^{[footnote 12]}

Part 4A - This is the route through the courts created by TILPA which can be used by Operators to access blocks of flats and apartments if a service has been requested by a tenant, but a landlord is repeatedly unresponsive to requests for access.

Part 4A Code Right - In these regulations, a “Part 4A code right” is a Code Right which has been granted (or otherwise binds) through a Part 4A Order.^{[footnote 13]}

Part 4A Order - In these regulations, a “Part 4A order” is an order made by a court which imposes a Part 4A agreement, following an application made under the Part 4A process.^{[footnote 14]}

Relevant Land - In these regulations, “relevant land” means the land identified in a request notice sent from an operator to a landlord. This land must be ‘connected land’.^{[footnote 15]} For example, an operator could request code rights over part of a shared stairwell, in order to install a fibre optic cable running to a flat.

Replacement Agreement - In these regulations, a “replacement agreement” is an agreement which supersedes a Part 4A agreement. This could happen if the landlord and operator subsequently come to a consensual agreement in respect of the relevant land which replaces a Part 4A agreement, or if the operator applies for an agreement to be imposed through a different part of the Code (such as Part 4).^{[footnote 16]}

Request Notice - In these regulations, a “request notice” is a notice sent by an operator to a landlord, requesting Code Rights - for example to install equipment - on the relevant land. The request notice is the first of four notices which an operator is required to send to the required grantor before applying for a Part 4A order (a copy of the request notice must also be included in the subsequent three notices).^{[footnote 17]}

Required Grantor - In these regulations, the “required grantor” is the person who is required to grant or otherwise agree to be bound by Code rights in relation to land connected to the target premises. This could be a landlord, but could also be a property management company, depending on the arrangements a particular building may have.^{[footnote 18]}

Target Premises - In these regulations, the “target premises” are the premises in which a lessee in occupation lives who has requested a service from an operator, but where in order to provide that service, the operator needs to gain Code rights over Connected land. For example, a target premises could be a flat where the tenant has requested a fibre broadband service from an operator, but to deliver the service, the operator needs to gain Code rights over a shared stairwell.^{[footnote 19]}

Warning Notice - In these regulations, a “warning notice” is a notice, sent at least seven days after a request notice has been sent, which an operator must send before applying for rights under the Part 4A process. This notice must include a copy of the request notice, must state that unless the required grantor responds, the operator intends to apply for a Part 4A order, and must explain the effect of a Part 4A order. Two warning notices must be sent before a final notice can be given (which itself must be given before an application can be made under Part 4A). This means that the second and third of four notices which an operator is required to send to the required grantor before applying for a Part 4A order will be ‘warning notices’.^{[footnote 20]}

1. The Electronic Communications Code is found in legislation at Schedule 3A of the Communications Act 2003 ↩

2. Defined at paragraph 27E(5)(h) of Schedule 3A to the Communications Act 2003 (“CA 2003”) ↩

3. Defined at Regulation 2 of the ‘Conditions and Time Limits’ Regulations, and Regulation 1 of the Schedule of the ‘Terms of Agreement’ Regulations ↩

4. Defined at paragraph 3 of Schedule 3A to the CA 2003 ↩

5. Defined at paragraph 27B(3) of Schedule 3A to the CA 2003 ↩

6. Defined at paragraph 5(1) of Schedule 3A to the CA 2003 ↩

7. Defined at Regulation 2 of the ‘Conditions and Time Limits’ Regulations, and paragraph 1 of the Schedule of the ‘Terms of Agreement’ Regulations ↩

8. Defined at paragraph 51(9) of Schedule 3A to the Communications Act 2003 ↩

9. Defined at paragraph 27C(5) of Schedule 3A to the Communications Act 2003 ↩

10. Defined at paragraph 27I(1) of Schedule 3A to the Communications Act 2003 ↩

11. In some situations, the government can also be considered an operator for these purposes. ‘Operator’ is defined at paragraph 2 of Schedule 3A to the Communications Act 2003 ↩

12. Full list of code operators ↩

13. Defined at paragraph 1 of the Schedule of the ‘Terms of Agreement’ Regulations ↩

14. Defined at paragraph 27C(1) of Schedule 3A to the Communications Act 2003 ↩

15. Defined at Regulation 1 of the Schedule of the ‘Terms of Agreement’ Regulations ↩

16. Defined at paragraph 27G(2) of Schedule 3A to the Communications Act 2003 ↩

17. Defined at paragraph 27B(1)(d) of Schedule 3A to the Communications Act 2003 ↩

18. Defined at paragraph 1 of the Schedule of the ‘Terms of Agreement’ Regulations ↩

19. Defined at paragraph 27B(1)(a) of Schedule 3A to the Communications Act 2003 ↩

20. Defined at paragraph 27C(2) of Schedule 3A to the Communications Act 2003 ↩