In the UK, society is demanding an improved and more reliable internet service, which results in the growth of telecom infrastructure. In order to be able to build new infrastructure, a large number of telecommunications operators are currently looking for new potential accommodation sites for their devices. The Ofcom code is introducing Section 6, which will shortly be used by operators to negotiate with landlords and sconces on how they will gain access to their premises for operating purposes. In this blog, we will provide you with everything you need to know about Section 6 of the Ofcom Code, rights, obligations and what it means for site providers.
The UK’s Growing Reliance on Digital Infrastructure
Digital connectivity is now part of everyday life in the UK by supporting remote work, digital online services, streaming services and smart technology use.
- The growth in mobile data usage in the UK is due to an increasing reliance on 4G technology and the rapid rollout of 5G networks.
- Operators are being pressured to both expand and upgrade their networks to accommodate the increasing demand from businesses and consumers.
- A significant portion of the telecom network infrastructure in the UK is located on private land and in private buildings. Thus, landlords and providers of space are the centres of this growth.
- The increasing urge from the government to enhance 4G service coverage across the country has increased demand for new telecom site locations, such as rooftop space and rural land.
- As telecom operators seek to establish their services in more areas of the UK by working with more landlords and property owners, the importance of understanding the regulatory frameworks such as the Ofcom Code is increasing.
What Is the Ofcom Code?
In the UK today, people are using digital technologies just like any other part of their lives, whether it be working from home, using digital services, accessing content via streaming technology and using smart devices, so there is a direct connection to digital technology in every aspect of life for most people.
- Mobile data consumption in the UK is trending upward due to growing demand for 4G and 5G technology, as well as the implementation of new, faster 5G networks throughout the UK.
- Telecom operators face pressure to continue growing their networks and improving services due to the growth in demand for their products and services.
- Much of the telecom network infrastructure within the UK is located on privately owned property, and therefore, the landowners (tenant landlords) and property owners are driving the expansion of telecom infrastructure in the UK.
- The increasing demand from the government to improve 4G service coverage in the UK is driving the need for more telecom site developments (documentation for potential development), including rooftop space and rural sites.
As telecom operators work with more landlords and property owners to expand their footprint throughout the UK by providing access to telecom services, the need for operators to understand the Ofcom Code and other regulatory frameworks is becoming increasingly critical.
Understanding Section 6 of the Ofcom Code
The Ofcom Code, Section 6 lays down the rules for broadcasters with respect to impartiality during UK elections and referendums, and its main purpose is to provide fairness in the electoral process so that there is no undue electoral advantage for a particular candidate or campaign.
The main rules contained in Section 6 are as follows:
- Broadcasters must provide due impartiality in their coverage and should “provide due impartiality to all key parties, candidates and nominated campaign organisations in respect to their significant views and perspectives.”
- Candidates (in UK elections) and representatives of permitted participants (in referendum) must not present news, interview or present programs during the election period. Existing prearranged appearances in nonpolitical programs can still occur but broadcast arrangements for such appearances during the election period cannot be arranged.
- Discussion and analysis of the election and referendum must cease at the commencement of polling on polling day, and the results of any opinion poll must not be published until after polling has closed.
- If a particular candidate has been included in a constituency specific item, then other eligible candidates must also be allowed to be included in that item to maintain fairness.
- For constituency and electoral area reports, all candidates standing for election must be provided a list (in sound and/or video) after the closure of nominations.
Rights of Site Providers Under Section 6
Site providers are not prohibited under the Ofcom Code of Practice, contrary to popular belief. Section 6 identifies that landlords and property owners have legitimate interests that should be acknowledged by all parties in this regard.
These rights allow site providers to:
- Obtain timely and clear information regarding all installation/upgrade/assets, etc.
- Expect that all negotiations with regard to installation/upgrade/assets, etc., shall be based upon good faith and fair play.
- Safeguard against excessive disruption/damage to their property due to installation/upgrade/assets, etc.
- Consult with professionals before accepting any terms therein.
Site providers must understand their rights, as the majority of disputes are created because site providers are placed under pressure to accept those terms without fully understanding their position or being aware of the long-term implications of the installation/upgrade/assets at their site.
Obligations of Site Providers
Although site providers do have rights enshrined in Section 6 of the Ofcom Code of Practice, they are also obligated to fulfil certain responsibilities to landlords and property owners. Most landlords have obligations to fulfil to operate the telecommunications networks as outlined in the Telecommunications (V) (s. 147) Regulations. A landlord should fulfil their obligations by reasonably and constructively (as applicable) engaging with telecommunications companies regarding the installation of telecommunications equipment. In particular, this cooperation should require the landlord to:
- Timely responses to all requests from telecommunications operators.
- Provide access to all sites in accordance with the Telecommunications (V)(s. 147) Regulations.
- Do not delay or reject outright requests for installation.
Failure to meet these obligations may weaken a site provider’s position and, in some cases, result in tribunal proceedings, which may result in a site provider’s loss of control of terms.
What Section 6 Means in Real Life: Practical Scenarios for UK Landlords
Section 6 is a common reference under the telecommunications agreement used by operators when requesting access to upgrade existing installations (for example, to request to add additional equipment). A rooftop mast that was installed a long time ago for 3G or 4G use could now need to be upgraded to support 5G technology. Without a good understanding of your agreement and the Code, it could be hard to tell whether these changes will automatically be allowed or have to be renegotiated. Many landlords are surprised by this; they are not aware that they actually have more rights than they thought. There are challenges in residential blocks, commercial offices and rural land, but the fundamental issue of poorly developed telecom agreements will harm property pricing and development potential as well as, in the long term, income.
Financial Consequences: Are There Adequate Payments by Telecommunications Companies (Site Providers)?
Under financial considerations, which will be the most contentious aspect of any telecommunications agreement, risks include
- The operator accepting payment that is below market value
- A longer-term agreement that will limit the development of property in the future
- Missed opportunities to negotiate the terms of an agreement when an upgrade occurs
- While Section 6 sets out what an operator will pay, it has far reaching implications to guide the negotiations that follow.
Why Professional Advice Is Critical Under Section 6?
Telecom agreements are usually long-term and very detailed, with mistakes during the negotiation process being potentially very costly. A professional advisor can help by:
- helping you to identify the rights and responsibilities of each party,
- strengthening your negotiating position,
- protecting the long term value of your property and income stream, and
- reducing the possibility of future disputes.
Arc Partners is a team of RICS accredited chartered surveyors with the appropriate technical and commercial expertise to assist you through this process.
How Arc Partners Supports Site Providers Across the UK?
Arc Partners works with both landlords and other proprietors throughout the UK to ensure that all aspects of the telecom infrastructure agreements are properly managed on behalf of the site provider. Arc Partners can assist with:
- Review and negotiation of telecom leases and licenses
- Guiding your rights under the Ofcom and Electronic Communications Codes
- Representing you as your agent and negotiating for you when there are disputes with telecom operators
- Protecting the long-term asset value of the property.
Arc Partners is located in London and provides a national service with extensive knowledge of the telecommunications sector.
FAQs About Section 6 of the Ofcom Code
Question 1. Does Section 6 of the Ofcom Code apply to private landlords?
Answer. Yes, the Ofcom Code does apply to private landlords, freeholders, commercial property owners, managing agents and any other person who uses or may allow others to install telecommunications equipment on their land or property.
Question 2. Can I refuse access to a telecom operator under Section 6?
Answer. There may be instances where you may be able to refuse to allow an operator access under Section 6; however, this is not likely to be the case in most circumstances. Site providers have certain rights, and the code promotes the growth and development of telecommunication infrastructure across the UK and any refusal of access to an operator, without good reason, may result in any subsequent litigation or tribunal claims against site providers.
Question 3. What rights do site providers have under Section 6?
Answer. Site providers have the right to:
- Be treated fairly during negotiations
- Receive clear and timely information
- Protect their property from unnecessary disruption
- Seek professional advice before agreeing to terms
Question 4. Is Section 6 linked to the Electronic Communications Code?
Answer. Yes, Section 6 and the Electronic Communications Code operate in conjunction with one another and the Code sets out the expected behaviour of both parties when exercising their rights under the Code.
Question 5. What obligations do landlords have under Section 6?
Answer. Landlords may be required to:
- Allow reasonable access for installation or maintenance
- Respond to requests within appropriate timeframes
- Engage in negotiations in good faith
- Failing to meet these obligations can weaken a site provider’s position.