25 Nov 2021

PSTI Bill reforms the Electronic Communications Code for telecoms infrastructure deployment

Reforms to the Electronic Communications Code are set to become law as DCMS introduces the Product Security and Telecommunications Infrastructure (PSTI) Bill, which government suggests will further accelerate the rollout of mobile and fixed infrastructure. Part 2 of the PSTI Bill details these changes to the Code, while Part 1 legislates strengthened security for consumer IoT devices.

The introduction of the PSTI Bill coincided with the publication of the government response to its March 2021 consultation on reforming the Code, which received over 1200 submissions. DCMS describes the difficulties telecoms operators and landowners are experiencing when negotiating requests for rights to install, use and upgrade telecoms infrastructure, as hampering the speed at which mobile and fixed infrastructure is deployed. Negotiations are protracted, with limited options to find resolutions in a timely manner. Further problems include unresponsive landowners, and strict limitations on operators' ability to upgrade and share their equipment which are stopping existing networks being used as efficiently as possible.

For further information on the ECC, issues since it was reformed in 2017, and detailed evidence from interested stakeholders in the ECC ecosystem, visit the APPG for Broadband and Digital Communication Inquiry page: #BetterBroadband.

DCMS has set out how it sees the PSTI Bill tackle many of the issues with the Code through a range of measures designed to foster more collaborative and quicker negotiations, and better working relationships between mobile network operators and landowners. This includes:

A new requirement for telecoms operators to consider the use of Alternative Dispute Resolution (ADR) - a way of resolving disputes that does not involve going to court such as mediation or arbitration - in cases where there are difficulties in agreeing terms. Operators will also be required to explain the availability of ADR as an option in their notices to landowners.
New automatic rights for operators to upgrade and share underground infrastructure - such as fibre optic cables - which were installed prior to the 2017 Code reforms and are not currently covered. This is in cases where there will be no impact on private land or burden on the site provider.
New rules to allow operators to apply for time-limited access to certain types of land more quickly where a landowner does not respond to repeated requests for permission.
New provisions to speed-up negotiations for renewal agreements. Operators who already have infrastructure installed under an expired agreement will have the right to either renew it on similar terms to those for new agreements, or request a new one.

Full details of the Bill can be accessed here – and DCMS has produced a factsheet with additional information.

ATI Regulations

At the same time as introducing the Bill and its response to the ECC consultation, DCMS also published its response to its 2020 review of the Access to Infrastructure Regulations. In short, no major changes are planned, however, some clarifications and improvements are necessary. Government plans to introduce legislation that will give it the ability to amend the Regulations more quickly in future via secondary legislation. Any statutory instruments would be subject to a statutory duty to consult, and to the affirmative resolution procedure, in order to allow any changes to be fully scrutinised by industry and Parliament. Further information below.

ATI Regulations - Key themes from responses

In general, operators expressed limited interest in using non-Openreach or non-telecoms infrastructure, due to a general preference for telecoms infrastructure, as well as the availability of a more stringent regulated product on a near ubiquitous nationwide network.

There were also concerns from some alternative network providers that including more specific measures on some terms, in particular pricing, could have unintended consequences if it undermined investment cases in new networks.

Among non-telecoms providers, there was concern that strengthening the Regulations would undermine the original purpose of the infrastructure and would hand too much oversight to a non-sector specific regulator. In addition, they highlighted instances where they already shared infrastructure or were willing to do so under certain conditions, and that this behaviour should be encouraged rather than enforced.

However, respondents did highlight several areas where the Regulations could be improved, in particular around a) timelines for responding to requests, b) Ofcom’s enforcement powers, and c) clarity around what was in scope.

Respondents also highlighted that more could be done to reduce barriers to accessing land and to reduce barriers to information sharing.

ATI Regulations - DCMS conclusion

Having reviewed responses to the call for evidence, DCMS does not propose to make major changes to the ATI Regulations at this time. It considers that doing so would be disproportionate, and resources may be better focused on removing other key barriers for the sector. In line with the Regulations, the government will undertake a further review within the next five years.

However, it has identified some clarifications and improvements that could make the Regulations easier to use, namely:

clarifying that publicly owned infrastructure is included in scope of the Regulations
clarifying that the Regulations can be used for the purpose of deploying business broadband; and
cutting some of the timescales to respond to information requests

Currently, making any changes to the Regulations would require primary legislation. However, DCMS plans to introduce legislation that will give it the ability to amend the Regulations more quickly in future via secondary legislation. Any statutory instruments would be subject to a statutory duty to consult, and to the affirmative resolution procedure, in order to allow any changes to be fully scrutinised by industry and Parliament. The necessary primary legislation will be introduced when Parliamentary time allows through a suitable legislative vehicle.

In addition, whilst DCMS is not proposing to make major changes to the Regulations, it considers that the existing Regulations can still be used to greater effect. There are some excellent examples of infrastructure sharing across the country, and there may be scope for this to be more widespread. The government encourages all infrastructure operators in all sectors to work together on new innovative solutions and cross industry standards. This will facilitate greater benefits from, and enable easier access to, sharing infrastructure, such as helping to reduce the costs and environmental impacts of deployment.

Furthermore, by working across different sectors, operators can help unlock advantages from different technologies sharing space. For instance, telecoms is enabling greater monitoring of utilities infrastructure, including leak monitoring and energy usage, which may be particularly pertinent in light of industry’s imminent retirement of analogue telephony networks. This will help operators improve efficiencies in their own network, but also prepare our nation’s infrastructure for the challenges of the future as we move to a more sustainable world.

techUK activity

As the PSTI Bill is legislated in two distinct parts, engagement with members and stakeholders will be led by both the Cyber Security and Consumer Tech Programmes (Part 1 – Product Security); and Communications Infrastructure and Services Programme (Part 2 – Telecoms Infrastructure). techUK members who are interested in tracking Part 2 of this Bill are encouraged to sign up to our Telecoms Infrastructure and Deployment Working Group.

Jaynesh Patel

Head of Telecoms and Spectrum Policy, techUK

Josh Turpin

Programme Manager, Telecoms and Net Zero, techUK

Matthew Wild

Programme Assistant - Markets, techUK

Tales Gaspar

Programme Manager, UK SPF and Satellite, techUK

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