Over recent months we have run a series of online and face to seminars aimed at prolonged occupation charge risk mitigation for clients on the undertaker side of the street works ‘fence’. Delegate feedback has included the following comments:

“This is a must course for Street Works and Site Managers. The pitfalls are numerous and Tom delivers the main issues and how to avoid them. Highly recommend this course”

“Thanks for today, took some real pearls of wisdom that I’ve already spread round the office like wildfire!!”

“The course was very informative and explained really well to even those that had little to no experience with regards to the subject would understand clearly”

“Great insight into the legislation behind s74s and Tom Delivered this in a way that was engaging and thought provoking”

“delivery of seminar was very good and to the point, Tom is very knowledgeable and answered all questions throughout the seminar in good details that were easy to understand”

“Delivery was concise and gained the full attention and interaction of the audience throughout the seminar. I remained fully engaged. The opportunity to listen to the viewpoints of others were carefully considered and responded to appropriately. I felt included and particularly liked that there were people from different organisations, brought together by their mutual interest in NRSWA related activities.”

“Very in depth review of Section 74s and pinpointing key parts of the legislation to analyse.”

“I really enjoyed the way it was presented, very interactive involving the delegates in a positive manner”

“I thoroughly enjoyed the course and didn’t want to leave for my other meeting. I found that I learnt a great deal about the nuances of S74 from you. Thank you Tom”

Do get in contact if you are interested in us delivering compliance training to your team.

Businesses that have had the Electronic Communications Code (“ECC”) applied to them pursuant to s.107 of the Communications Act 2003 (“Code operators”) are required under Regulation 16(1)(b) of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (“the Regulations”) to file their annual certificate pursuant to that provision with Ofcom by 1^st April 2023, unless exempt from that requirement (see below for more detail).  

Ofcom provide on their website a specimen certificate that might be used or adapted. They also have guidelines on assessing funds for liabilities, which may be of assistance.

This note provides:

1. Some suggested action points; and
2. A General Background section, which provides additional explanation and context.

Suggested action points

1. Ignore this note if this is already being dealt with!
2. Commence review for purposes of determining the appropriate amount of funds for liabilities.
3. Determine how the financial provision is made.
4. Complete certificate and other required actions and file the certificate (together with additional required documents) with Ofcom by 1^st April 2023.
5. Diarise to repeat process in time for 1^st April 2024.
6. Contact us if it would be helpful to discuss the points raised in this email.

General background

Where a Code operator is subject to the requirement to provide the Regulation 16(1) certificate, failure to do so by the deadline can result in enforcement action being taken by Ofcom. It has been notable over the past 12-18 months that Ofcom has increased its enforcement investigation of Code operators, particularly where the certificate filing requirement has not been met.

The annual certificate is more than just a ‘tick box’ exercise. What the certificate does is require the Code operator to confirm, amongst other things:

1. How and on what basis the Code operator has assessed its potential specified liabilities for purposes of Regulation 16 of the Regulations;
2. The amount of funds for meeting liabilities that has been provided for; and
3. How that financial provision is being made (with evidence of the same).

In the case of a limited company, the certificate requires board resolution approval and also requires the board to state in its reasonable opinion that it has complied with its obligation under Regulation 16(1). This does potentially create wider risks to directors, particularly if it was subsequently determined that no reasonable director could have reached the opinion that the amount of funds for meeting specified liabilities was sufficient or the obligation satisfied on the information which was considered. This situation might only arise if the company suffered a “relevant event”, as defined in Regulation 16(10) of the Regulations.

The annual certificate provided to Ofcom can be subject to scrutiny and question by Ofcom. If Ofcom is not satisfied that the Code operator has met its obligations under Regulation 16(1) it may direct further action be taken by the Code operator to satisfy Ofcom that Regulation 16(1) has been complied with. 

With the economy and the communications sector currently facing some notable challenges, aspects we consider it is possible that Ofcom may pay increased attention to are:

1. the amount of funds for meeting liabilities detailed within the annual certificate; and
2. the means by which that provision is being made.

Whilst Ofcom does not prescribe the amount of funds for liabilities, it may start to ask questions if the amount of funds for liabilities made does not appear to them to be reflective of the potential risks attaching to the scale and nature of build works being undertaken or they are not content with the method of provision of the funds.

It is also the case that the amount of funds for liabilities that may have been entirely appropriate at the time Code powers were obtained may no longer be reflective of the potential specified liabilities risk that the Code operator might now face, particularly after several years of active and extensive ongoing network build.        

The requirement to provide the annual certificate under Regulation 16(1) only applies if the Code operator has exercised rights conferred by the Electronic Communications Code (“ECC”). If no such rights have been exercised, the annual certification obligation is not generally triggered (although it may still be, if a Code operator has acquired relevant apparatus and/or infrastructure from a 3^rd party where that apparatus/infrastructure would be subject to this requirement). Where however a Code operator intends to start exercising its rights under the ECC, it must provide the same certificate to Ofcom not less than 2 weeks before it exercises its right to install apparatus (and then annually thereafter by 1^st April). 

It should also be noted that the requirement to make provision of funds for liabilities (and provide the Regulation 16(1) certificate) will generally only be triggered where the Code operator has or is exercising its rights under the New Roads and Street Works Act 1991 that the ECC confers (but note the point in the paragraph above about acquired apparatus and infrastructure that might still be subject to the requirement). Those Code operators who undertake works solely in private land might not be subject to the requirement to make such provision.   

Where we might assist

We are experienced in advising:

1. New entrants to the sector and obtaining Code powers on their behalf;
2. New and existing Code operators on the amount of funds for meeting liabilities for purposes of Regulation 16 and on how it is provided;
3. Code operators on Code power rights and obligations;
4. Code operators on enforcement investigations and action by Ofcom; and
5. Code operators in respect of the wider regulatory framework, including the New Roads and Street Works Act 1991 and how that impacts on them.  

Contact us if we might assist you in relation to anything addressed within this briefing note.

There are still some places on our forthcoming online seminars on challenging s.74 charges. Email [email protected] for dates and details.

We’ll let delegate comments from previous training seminars do the ‘hard sell’…

“The ops teams training you did for us has contributed to a significant rise in site compliance and a massive drop in over runs.”

“Brilliant course”

“A very clear and precise presentation through a very difficult/ confusing subject”