Part 3 - Assignment of code rights, and upgrading and sharing of apparatus

Infrastructure Bill [Lords] – in a Public Bill Committee at 3:30 pm on 15th January 2015.

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Introductory

14 This Part of this code makes provision for—

(a) operators to assign code rights conferred by an agreement under Part 2,

(b) operators to upgrade electronic communications apparatus to which such an agreement relates, and

(c) operators to share the use of any such electronic communications apparatus.

Assignment of code rights

15 (1) Any agreement under Part 2 of this code is void to the extent that—

(a) it prevents or limits assignment of the agreement to another operator, or

(b) it makes assignment of the agreement subject to conditions to be met by the operator (including a condition requiring the payment of money).

(2) In its application to England and Wales sub-paragraph (1) does not apply to the following terms of an agreement under Part 2 of this code—

(a) terms in a lease which require the operator to enter into an authorised guarantee agreement within the meaning of the Landlord and Tenant (Covenants) Act 1995 (see sections 16 and 28 of that Act);

(b) terms in an agreement other than a lease which have a similar effect to terms within paragraph (a).

(3) If an operator (“the assignor”) assigns an agreement under Part 2 of this code to another operator (“the assignee”), the assignee is from the date of the assignment bound by the terms of the agreement.

(4) The assignor is not liable for any breach of a term of the agreement that occurs after the assignment if (and only if), before the breach took place, the assignor or the assignee gave a notice in writing to the other party to the agreement which—

(a) identified the assignee, and

(b) provided a contact address for the assignee.

(5) Sub-paragraph (4) is subject to the terms of any authorised guarantee agreement or similar agreement entered into by the assignor as mentioned in sub-paragraph (2).

(6) In the application of this paragraph to Scotland references to assignment of an agreement are to be read as references to assignation of an agreement.

Power for operator to upgrade or share apparatus

16 (1) An operator (“the main operator”) who has entered into an agreement under Part 2 of this code may, if the conditions in sub-paragraphs (2) to (4) are met—

(a) upgrade any of the electronic communications apparatus to which the agreement relates, or

(b) share the use of any such electronic communications apparatus with another operator.

(2) The first condition is that the main operator has exclusive possession of the apparatus.

(3) The second condition is that any changes to the apparatus as a result of the upgrading or sharing have no adverse impact on its appearance or no more than a minimal adverse impact on its appearance.

(4) The third condition is that the upgrading or sharing imposes no additional burden on the other party to the agreement.

(5) For the purposes of sub-paragraph (4) an additional burden includes anything that—

(a) has an additional adverse effect on the other party’s enjoyment of the land, or

(b) causes additional damage, expense or inconvenience to that party.

(6) Any agreement under Part 2 of this code is void to the extent that—

(a) it prevents or limits the upgrading or sharing, in a case where the conditions in sub-paragraphs (2) to (4) are met, of any of the electronic communications apparatus to which the agreement relates, or

(b) it makes upgrading or sharing of such apparatus subject to conditions to met by the operator (including a condition requiring the payment of money).

(7) References in this paragraph to sharing electronic communications apparatus include carrying out works to the apparatus to enable such sharing to take place.

Effect of agreements enabling sharing between operators and others

17 (1) This paragraph applies where—

(a) this code has been applied by a direction under section 106 in a person’s case,

(b) this code expressly or impliedly imposes a limitation on the use to which electronic communications apparatus installed by that person may be put or on the purposes for which it may be used, and

(c) that person is a party to a relevant agreement or becomes a party to an agreement which (after the person has become a party to it) is a relevant agreement.

(2) The limitation does not preclude—

(a) the doing of anything in relation to that apparatus, or

(b) its use for particular purposes,

to the extent that the doing of that thing, or the use of the apparatus for those purposes, is in pursuance of the relevant agreement.

(3) This paragraph is not to be construed, in relation to a person who is entitled or authorised by or under a relevant agreement to share the use of apparatus installed by another party to the agreement, as affecting any consent requirement imposed (whether by an agreement, an enactment or otherwise) on that person.

(4) In this paragraph—

“consent requirement”, in relation to a person, means a requirement for the person to obtain consent or permission to or in connection with—

(a) the installation by the person of apparatus, or

(b) the doing by the person of any other thing in relation to apparatus the use of which the person is entitled or authorised to share;

“relevant agreement” means an agreement in relation to electronic communications apparatus which—

(a) relates to the sharing by different parties to the agreement of the use of that apparatus, and

(b) is an agreement that satisfies the requirements of sub-paragraph (5).

(5) An agreement satisfies the requirements of this sub-paragraph if—

(a) every party to the agreement is a person in whose case this code applies by virtue of a direction under section 106, or

(b) one or more of the parties to the agreement is a person in whose case this code so applies and every other party to the agreement is a qualifying person.

(6) A person is a qualifying person for the purposes of sub-paragraph (5) if the person is either—

(a) a person who provides an electronic communications network without being a person in whose case this code applies, or

(b) a designated provider of an electronic communications service consisting in the distribution of a programme service by means of an electronic communications network.

(7) In sub-paragraph (6)—

“designated” means designated by regulations made by the Secretary of State;

“programme service” has the same meaning as in the Broadcasting Act 1990.