Government consultation on ensuring tenants' access to gigabit-capable connections

Summary

A UK Government consultation “Ensuring tenants’ access to gigabit-capable connections” proposes to allow telecoms operators to apply to the magistrates’ courts (the Sheriff Court in Scotland) for a warrant of entry to access property to install digital infrastructure enabling full fibre, gigabit-capable connections. Such an application would be made where a tenant at the property has requested the service and the operator has suitably notified the landlord, but the landlord has failed to facilitate the operator’s access to the property. While the proposals refer to substantive requirements that an operator must meet before applying to court, there will be concern among the property owner community about the prospect of operators accessing and installing infrastructure in their properties without their consent. The legislation will need to be clear as to what are the circumstances that would allow an operator to apply to court. While the warrant of entry is intended only to be a temporary measure, the fact that the apparatus is in situ is likely to have an impact on subsequent negotiation of a formal agreement under the Electronic Communications Code (“Code”).

Backdrop

Following the Future Telecoms Infrastructure Review in July 2018, the UK Government’s ambitions are for 15 million full fibre gigabit-capable connections by 2025 and nationwide coverage by 2033. While most UK premises have superfast connectivity, only 5% of premises have Fibre to the Premises or “full fibre” coverage. By comparison, South Korea has coverage of about 99% and Japan 97%. Full fibre networks are faster and more reliable and affordable to operate than copper equivalents. Government sees gigabit-capable networks as the long-term answer to consumer and business needs and demands for digital connectivity and emphasises that such technologies will bring significant economic developments, transforming productivity and opening up new business models.

To meet these ambitions, the Government is committed to creating a legislative and regulatory environment, which addresses the “barriers to deployment”. The Barrier Busting Task Force has been created to work with industry to identify and remove impediments to network deployment and ensure that operators can extend their gigabit-capable networks to as many homes and businesses as possible and create enabling infrastructure.

Through this work, the Government has become concerned that there is a substantial risk some tenants may be denied access to gigabit-capable broadband services. Operators require wayleaves or other access agreements from the owner of a property before they enter to install equipment. Government has been told by operators that a high number of landlords (especially of blocks of flats) are not responding to requests for access. A figure of 25-40% of cases is cited. Virgin Media is quoted as estimating they could connect an additional 2 million households if the access issue could be addressed. Operators have removed thousands of properties from their network build plans because of difficulties in gaining physical access, which is required to install the equipment. Examples cited of situations where there is a failure to respond include where the property is owned as an investment by an overseas individual, shell company or pension scheme.

The Government’s concern is that, without specific legislative intervention, a large number of households and businesses will be unable to receive gigabit-capable connections and tenants must not be left behind because of a landlord’s inaction. Therefore, it is proposed that steps be taken to compel landlords to consider the connectivity of their tenants and allow operators to install digital infrastructure where this does not take place.

Proposals

The consultation proposes to amend the Code to encourage landlords to engage with operators where a tenant requests a service. If a request is made and the operator has suitably notified the landlord of its intention to deploy digital infrastructure, the landlord would be obliged to facilitate the operator’s access to its property to enable the deployment. The consultation suggests this avoids the need to go to a Tribunal for Code rights to be imposed.

Disturbingly for some, if the landlord fails in its obligation to facilitate the deployment, the operator can obtain access to the property using a magistrates’ court-issued warrant of entry. This is intended to be a temporary order allowing for entry to install, upgrade and maintain the electronic communications apparatus, which lasts until a formal, negotiated agreement is entered into between the landlord and operator.

Operators should be able to apply to the magistrates’ court two months after first contacting the landlord. The Government intends to create a simple, fast process based on the court considering evidence provided by the operator. There will be substantive requirements that an operator must meet before applying to court. This is not detailed in the consultation, but relates to the mode and frequency of attempts by the operator to contact the landlord.

The Government considers that using Tribunals for this purpose will take too long and be too expensive and there will be too many cases of absent landlords for the Tribunals to cope.

The warrant of entry is not intended to be an alternative to a formal access agreement and efforts should continue to engage with landlords to achieve a formal agreement. The Government’s view is that the Code’s underpinning of the formal agreement should provide an incentive for landlords to engage. However, negotiations over such an agreement are likely to be impacted by the fact that the apparatus is already in situ.

Implications

Some, if not many, property owners/landlords are likely to be concerned by the prospect of an operator being able to obtain a warrant to enter their property to install infrastructure. There needs to be clear criteria for when an operator can apply to court, which provides sufficient opportunity for a landlord to respond before an application can be made. If there is ongoing discussion over a proposed agreement or if a property owner cannot come to an agreement with an operator during the course of negotiations, then property owners may consider that a magistrates’ court warrant should not be available. Operators can utilise Part 4 of the Code.

Property owners may be concerned about the impact of a warrant based entry on other occupiers at the property and on the property’s insurance. Who is responsible for any damage caused by the entry and installation? The consultation is lacking in detail on these points and others, and this would be helpful to provide greater assurance to property owners, as well as operators and tenants.

The closing date for comments on the consultation is 21 December 2018 and details, including how to respond, can be found here.