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The ongoing UK broadband roll out is providing real opportunities for existing and new companies in the telecoms sector.
Whilst companies can undertake many aspects of work without having powers under the Electronic Communications Code (“Code Powers”), holding or obtaining Code Powers is likely to play a significant part in whether a new entrant can compete on a level playing field.
The Electronic Communications Code is contained within Schedule 3A to the Communications Act 2003. What it does is confer certain rights on a party that is granted Code Powers by Ofcom. These rights include, amongst other things:
- exemptions from certain aspects of planning requirements that may otherwise apply for the placing of telecoms apparatus;
- rights to place and maintain electronic communications apparatus and infrastructure within the public highway; and
- means to facilitate access to private land for the placing and maintaining of electronic communications apparatus and infrastructure.
Ofcom’s own website also provides some useful information on the Electronic Communications Code.
- advise companies on whether they are eligible to secure Code Powers;
- apply to Ofcom and secure Code Powers for companies; and
- advise new and existing Code Power operators on the extent and operation of their Code Powers and their wider regulatory responsibilities.
Contact us if we can assist you in respect of the Electronic Communications Code.
Whilst there have been very significant increases in street works compliance by utility companies and their contractors over the years, the financial and reputational risks posed to utility companies by certain street works related criminal offences has dramatically increased in recent years. This is as a result of the “uncapping” of level 5 offences brought about by the implementation on 12th March 2015 of s.85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. For anyone wanting to know the detail, the implementing legislation was the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 11) Order 2015 (SI 2015/504).
The upshot of “uncapping” is that the previous maximum fine of £5,000 that applied to level 5 fines was removed and the level of fine that the Magistrates’ Court might impose is now effectively unlimited.
Before the “uncapping” of level 5 fines, a bad day in Court on a level 5 capped street works offence was unlikely to prove too financially painful – in the greater scheme of things. That is no longer the case. A bad day in Court on something that 5 years ago might have attracted a £3,000 fine might today see a utility company be sentenced to a considerably larger fine. Whilst it has taken a few years for fines to increase, fine ‘inflation’ has been significant in some parts of the country for even relatively minor non-compliances.
There are steps that an undertaker can take to mitigate the risks that its street work activities may pose. These include:
- Ensuring that all internal and contractor staff have an appropriate understanding of the legal obligations that street works legislation imposes;
- Self auditing of works being done by you and on your behalf and ensuring all non-compliances are promptly identified and rectified; and
- Responding promptly and effectively to any report of problems with a site or works.
Our team has extensive experience of advising undertakers on street works compliance and defending related criminal prosecutions.
Do contact us if you think we can assist in reducing your legal risks from street works.
Growth in the multi utility provider sector has created a situation that the original drafters of the s.50 of the New Roads and Street Works Act 1991(“NRSWA”) possibly did not envisage.
This possible stretching of the original drafting does create potential issues for multi utility and other providers when seeking to install apparatus in the street where that apparatus is not being installed under an existing statutory right. It can also create issues where a multi utility provider does hold a statutory right to install one supply. The holding of a statutory right in respect of, say, gas as an Independent Gas Transporter will not, of itself, provide a statutory right to install water, electricity or telecoms apparatus.
Unlike a party with a statutory right to install apparatus in the street, a party wishing to install utility apparatus in the street who does not hold that right is left having to secure a s.50 licence from the street authority.
The most frequently encountered problem by parties seeking s.50 licences are the terms demanded by the street authority. The cause of this is that there is not a right to a s.50 licence. S.50(1) of NRSWA confers a discretion on a street authority as to whether it grants a s.50 licence by its use of the wording “The street authority may grant a licence…..” (our emphasis added).
That discretion is not an absolute one. Like all authority decision making, the discretion must be exercised reasonably. Any unreasonable exercise of the discretion by a street authority may leave the authority open to Judicial Review.
We advise multi utility providers on s.50 licence issues. We also challenge authority decision making processes where that is the appropriate course of action.
Contact us if you would like to discuss how we might assist you in respect of s.50 licences.