The Electronic Communications Code 2017: A force for good? The question remains…

In 2019, the final chapter in the Marvel Infinity Saga was released. Avengers Endgame was the epic conclusion to a narrative spanning 23 previous films, and broke global box-office records. In the previous instalment, the story’s antagonist Thanos, had eradicated fifty percent of all living life “for the greater good”, and was brought to justice by the heroes in the final part. “The greater good” is a trope often used in storytelling. Its expository purposes help to frame and serve purpose to the ideal that unpopular decisions can be justified in the end by the parties taking them by insisting that there will be wider benefits to all.  In the case of Thanos, it was born of a desire to conserve resources by the means of population control.  Whilst recently working on the Government’s consultation on changes to the Electronic Communications Code 2017, I was reminded of this expression as it was used to publicise the perceived benefits of introducing the Code into wider legislation. 

Following news stories highlighting the UK’s global position in telecommunications coverage, the main UK political parties made wider digital connectivity a key point of their 2015 election manifestos. In a rapidly changing world, the UK needed to be seen to be at the forefront of technological advancement. Following re-election, the legislation was drafted and it became immediately apparent that the previously stable (although not always harmonious) relationships between landowners and telecommunications operators would now be heavily weighted on one side. 

Landowners and site providers had been painted as greedy, un-cooperative and unwilling to share the vision of a fully digitally connected Britain.  Of what use was increasing turnover and profits to the poor, heroic Telecommunications Operators who merely wanted to erect twenty metre towers in rural areas to infill coverage gaps? Even generous economic breaks in Luxembourg to avoid paying UK Corporation Tax couldn’t lift their gloom.  The ECC 2017 sought to right these injustices by courageously disposing of the old model of agreeing rentals at open market values, and replacing this with a new system, placing the onus on the landowner to prove their loss by accommodating a telecoms site was greater than the nominal fee offered by Operators.   

The new changes came as a surprise to network planners and landowners alike. The former couldn’t believe their luck, as they now effectively had carte blanche to install apparatus anywhere, for a token payment on the grounds of “the greater good”.  Those within the industry were left perplexed, as excessive rental demands were rarely the cause of sites not being built. As free-market economics dictates, urban property values are higher than rural areas owing to supply and demand.  Therefore, if rural sites are valued lower than their urban counterparts, how can these rentals be demonstrated as blockers to connectivity? As media coverage will attest, the biggest blockers to network deployment tended to be planning applications, perceived health risks, and the siting and appearance of new sites. 

It remains to be seen whether the Government will consider these points, particularly as the recent consultation process explicitly prohibited any discussion of the revised payment model. Attempts to challenge these reforms are routinely dismissed as being contrary to “the greater good” and Operators continue to demand revised legislative measures to exert further control over the sector. The final words of Thanos were simply “I am inevitable”.  The “new Code world” may indeed be inevitable, however like the Avengers, it will take a collective response from stakeholders to challenge any further detrimental measures.