Communications Act 2003, Schedule 3A, paragraph 33

How may a party to a code agreement require a change to the terms of an agreement which has expired?

SCHEDULE 3A The electronic communications code

33 (1) An operator or site provider who is a party to a code agreement by which a code right is conferred by or otherwise binds the site provider may, by notice in accordance with this paragraph, require the other party to the agreement to agree that—

(a) the code agreement should have effect with modified terms,

(b) where under the code agreement more than one code right is conferred by or otherwise binds the site provider, that the agreement should no longer provide for an existing code right to be conferred by or otherwise bind the site provider,

(c) the code agreement should—

(i) confer an additional code right on the operator, or

(ii) provide that the site provider is otherwise bound by an additional code right, or

(d) the existing code agreement should be terminated and a new agreement should have effect between the parties which—

(i) confers a code right on the operator, or

(ii) provides for a code right to bind the site provider.

(2) The notice must—

(a) comply with paragraph 88 or 89, according to whether the notice is given by an operator or a site provider,

(b) specify—

(i) the day from which it is proposed that the modified terms should have effect,

(ii) the day from which the agreement should no longer provide for the code right to be conferred by or otherwise bind the site provider,

(iii) the day from which it is proposed that the additional code right should be conferred by or otherwise bind the site provider, or

(iv) the day on which it is proposed the existing code agreement should be terminated and from which a new agreement should have effect,

(as the case may be), and

(c) set out details of—

(i) the proposed modified terms,

(ii) the code right it is proposed should no longer be conferred by or otherwise bind the site provider,

(iii) the proposed additional code right, or

(iv) the proposed terms of the new agreement,

(as the case may be).

(3) The day specified under sub-paragraph (2)(b) must fall—

(a) after the end of the period of 6 months beginning with the day on which the notice is given, and

(b) after the time at which, apart from paragraph 30, the code right to which the existing code agreement relates would have ceased to be exercisable or to bind the site provider or at a time when, apart from that paragraph, the code agreement could have been brought to an end by the site provider.

[F1425 (3A) Where the notice is given by an operator, it must also—

(a) contain information about the availability of alternative dispute resolution in the event that the operator and the site provider are unable to reach agreement, and

(b) explain the possible consequences of refusing to engage in alternative dispute resolution.F1425]

(4) Sub-paragraph (5) applies if, after the end of the period of 6 months beginning with the day on which the notice is given, the operator and the site provider have not reached agreement on the proposals in the notice.

(5) Where this paragraph applies, the operator or the site provider may apply to the court for the court to make an order under paragraph 34.

[F1426 (6) Before applying under sub-paragraph (5) for an order under paragraph 34 the operator or the site provider (as the case may be) must, if it is reasonably practicable to do so, consider the use of one or more alternative dispute resolution procedures to reach agreement with the other party.

(7) The operator or the site provider may at any time give the other party to the agreement a notice in writing stating that the operator or the site provider (as the case may be) wishes to engage in alternative dispute resolution with the other party to the agreement in relation to the notice mentioned in sub-paragraph (1).F1426]

Definitions used in Schedule 3A, paragraph 33 4

the operator

18 (1) This paragraph applies where, immediately before the abolition of licensing, a person holding a licence under section 7 of the 1984 Act (“the operator”) —

(a) is a person to whom the telecommunications code applies in respect of the running of a telecommunications system by him (“the operator’s system”); and

(b) in pursuance of a condition of his licence imposed for the purpose of securing that sufficient funds are available to meet code-related liabilities specified in the licence, is a party to any guarantee arrangements.

Defined in Sch.18 para.18(1) · see it in the full Act
code agreement

(5) An agreement to which this Part of this code applies is referred to in this code as a “code agreement”.

Defined in Sch.3A para.29(5) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act
information

“information” includes accounts, estimates and projections and any document;

Defined in s.405(1) · see it in the full Act

Cases considering Schedule 3A, paragraph 33 9

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022

After Part 5 becomes available, either party may seek modification, removal or addition of rights. This is the compulsory route for changing rights continued beyond the original term. (see paras [29]; [109]-[115])

On Tower UK Limited v AP Wireless II (UK) Limited

[2026] EWCA Civ 43 · 3 February 2026Interprets

The court construed paragraph 33 as available to the operator currently exercising continued code rights, even where an assignment transferred only the benefit of the code agreement. That operator may seek modified terms or a replacement agreement. (see paras [17]; [47]; [63]-[64]) The court treated paragraph 33(1) as permitting an operator who is a party to a code agreement to require changes, including modified terms, additional rights or termination and replacement. The current operator may qualify on benefit alone. (see paras [17]; [43]; [47]; [63]) The court referred to paragraph 33(5) as permitting an application to the court where the operator and site provider have not agreed the proposed changes within six months. (see paras [17]; [64])

Vodaphone Ltd v Potting Shed Bar and Gardens Ltd & Anor

[2023] EWCA Civ 825 · 14 July 2023Interprets

Allows an operator or site provider who is a party to an expired code agreement to require agreement to modification, removal, addition or replacement of code rights. Requires the proposed change to take effect after the relevant contractual expiry or termination date and more than six months after notice. Allows an application to the court if the parties do not reach agreement within the specified period. Completes the procedure for applying to the court following failure to agree a change to an expired code agreement.

What each judgment says about Schedule 3A, paragraph 33 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F1425Sch. 3A para. 33(3A) inserted (7.11.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 69(4)(a), 79(2); S.I. 2023/1022, reg. 2(b)
  2. F1426Sch. 3A para. 33(6)(7) inserted (7.11.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 69(4)(b), 79(2); S.I. 2023/1022, reg. 2(b)