The decision made by Ofcom will affect the owner of the building which houses mobile mast or rooftop antenna or any other form of telecommunications infrastructure much more than what one can imagine in the very beginning. This is because Ofcom is the regulating body of telecommunications in the United Kingdom. This body is responsible for setting the terms and conditions of the operator’s agreement without directly dealing with the landlords.

What Ofcom Actually Does?

Ofcom is an independent regulatory body responsible for regulating the communications industry in the UK. These include the broadcasting industry, the telecommunications industry, the postal industry, and the radio spectrum. With regards to the telecommunications industry, the functions of the Ofcom include regulation and licensing of the use of the radio spectrum by mobile networks, competition in the industry, consumer protection laws, and coverage of the network. The Ofcom also plays an important role in assisting the government to achieve its objectives in terms of digital connectivity.

It is important to note, however, that Ofcom is not engaged in negotiation of individual site agreements, does not set rents and is not involved in the negotiation process between the landlords and operators in terms of the issue of access at all. All the above-mentioned aspects are regulated by the Electronic Communications Code, which is developed as a result of the Digital Economy Act 2017. All the above-mentioned processes are conducted either privately or in the Upper Tribunal (Lands Chamber).

Understand Why This Matters to Property Owners

While there is usually no direct interaction between landlords and Ofcom, its policies have an indirect effect on decisions at the site level via several channels:

• The obligation of operators to deploy and/or densify their networks according to the terms of their spectrum license from Ofcom. This creates the demand for new sites, masts and small cells – hence the sudden interest in some locations from different operators.
• Net neutrality and competition: The competition policy adopted by Ofcom affects the degree of aggressiveness of operators regarding their drive to develop infrastructure and prices of wholesale access to their networks, affecting the commercial incentives they create for site acquisition.
• Policy related to digital infrastructure: Ofcom collaborates with the Shared Rural Network and Project Gigabit of the UK Government, which have established targets in terms of national connectivity. Such targets are part of the larger policy environment which had led to the creation of the Electronic Communications Code, a document regarded as operator-friendly when it comes to valuations and security of tenure.
• Standards and quality of service: Ofcom checks on the performance of the network and provides data in terms of its geographical coverage, which is used by operators to justify their investments in certain locations.

Ofcom and the Electronic Communications Code

The common myth about Ofcom is that it manages the Code of Practice on Electronic Communications. It is true that it is a legal document regulated by the tribunals and the courts, rather than Ofcom. But Ofcom does play a statutory role in the matter of designation of the Code Powers under section 106 of the Communications Act 2003, thus giving right to only those operators who are designated as such, to exercise their Code Rights.

This has important practical consequences. In the event that a property owner is approached by a person who purports to have powers under the Code, it will be useful to determine if such an individual indeed enjoys designated Code Powers. Parties who do not enjoy such powers will not have access to the compulsory powers of the Code.

Health, Safety and Radio Frequency Compliance

It is the responsibility of Ofcom to regulate the emissions of radio frequencies (RF) from communications providers and ensure that these comply with the international guidelines in terms of exposure to RFs, such as the guidelines of ICNIRP. In the case of landlords who have masts installed on their properties, this entails that there are compliance considerations that need to be taken into account. This includes ensuring that access and exclusion zones are in line with the new guidelines on RF safety.

Being Ahead of Regulatory Developments

Nevertheless, the Ofcom policy direction cannot be considered fixed and unchanging. All the choices that are being made by Ofcom in respect of spectrum auctions, consultations on coverage obligations and regulation of fibre and mobile rollouts, have certain implications for operator behavior in dealing with the landlord. Those landlords who know about this whole policy direction can better predict operator behavior than those landlords who only respond to each case individually.

Conclusion

Although the organization Ofcom may not be sitting at the other end of the negotiation table during negotiations regarding sites, the decisions made by the organization on spectrum, coverage obligations, and Code Powers classification will define the outcome of all negotiations that are held by the landlord. It is therefore good for the landlord to have such knowledge in order to know how the operators will behave.

FAQs

Does Ofcom make telecom site agreements with the landlord?

No. Although Ofcom regulates the telecommunications sector and makes spectrum policy decisions, it does not negotiate rents, access conditions or resolve disputes. This is managed under the Electronic Communications Code via negotiations, court process, and the Upper Tribunal.

What are Ofcom Code Powers?

Ofcom Code Powers is an official designation of operators under the Communications Act 2003 made by Ofcom. Code Powers designation allows operators to make use of the rights under the Electronic Communications Code.

Why is there a spectrum licensing impact on landlords?

Often the Ofcom spectrum licenses have conditions that obligate coverage, which means operators will need to build more coverage, hence the increased need for rooftop sites and masts.

Does Ofcom regulate radio frequency safety?

The responsibility of Ofcom involves regulating RF emissions and ensuring that the operators abide by ICNIRP exposure guidelines. The landlord needs to ensure the exclusion zone and signages on the premises in addition to other responsibilities outlined by the Building Safety Act 2022.

Is there a way of confirming whether or not an operator is a Code Power Operator?

Yes, Ofcom maintains a public list of those operators that have been designated. This is required as non-designated operators cannot claim the right of access and tenure under the statute in the Code.

Why must a landlord maintain the policy of Ofcom?

Ofcom consultations as well as target coverage indicate what the future course of demand will be.