Communication and cracking the (New) Code
Service of notices under the New Code and the Court of Appeal's recent decision in The University of London v Cornerstone Telecommunications Infrastructure Limited  EWCA Civ 2075.
On 26 November 2019, the Court of Appeal upheld the Upper Tribunal's decision and delivered judgment in The University of London v Cornerstone Telecommunications Infrastructure Limited  EWCA Civ 2075, which will be a disappointing and potentially worrying sign for a site provider faced with a telecoms operator seeking access to their land in order to assess its suitability for the installation of electronic communications apparatus.
The Digital Economy Act 2017 introduced the new Electronic Communications Code with effect from 28 December 2017, as set out in Schedule 3A of the Communications Act 2003 ("the New Code"). It was introduced with the objective of regulating and more clearly defining the relationship between site providers and telecoms operators, following the old code which was once described as "one of the least coherent and thought-through pieces of legislation on the statute book".
The impetus of the New Code was to provide a modern framework to facilitate the rollout of electronic communications networks in the public interest, and affords telecoms operators certain rights to install, inspect and maintain electronic communications apparatus in, over and under land.
The Court of Appeal's decision
In The University of London v Cornerstone Telecommunications Infrastructure Limited  EWCA Civ 2075, a telecoms operator served notice requesting access to survey the rooftop of a University of London student halls of residence in order to complete a multi-skilled visit (otherwise known as a "MSV"); broadly a right of access for the operator to carry out a survey and other investigations to assess whether the site is suitable for the installation of electronic communications apparatus. The request was made as the telecoms operator had to relocate its apparatus from a neighbouring rooftop site which was to be redeveloped.
The judgment reached by the Court of Appeal held that:
- a right to undertake a MSV falls within "works" for the purpose of paragraph 3(d) of the New Code and it can be sought as an interim right pursuant to paragraph 26 of the New Code; and
- a paragraph 26 application can be pursued for an interim right under the New Code without needing to seek permanent rights in the same location under paragraph 20 of the New Code.
Statutory notice under paragraph 26 of the New Code
If a telecoms operator is seeking to acquire interim rights under the New Code, as in the above case, it will first seek to reach a consensual agreement with the site provider. If these negotiations fail, it may serve statutory notice under paragraph 26 of the New Code on the site provider setting out the interim rights and all other terms of the agreement sought under the New Code that it requires.
If the site provider, having been served with statutory notice, fails to agree to confer or otherwise be bound by the interim code rights sought within 28 days, the telecoms operator may apply to the Upper Tribunal for an order imposing a New Code agreement binding the site provider.
The above decision further bolsters the position of telecoms operators reclaiming their right to speculatively survey prospective sites. The test to obtain interim rights is less rigorous than for permanent rights.
The decision will be a welcome sign to telecoms operators given the Government's commitment to facilitating the rollout of 5G technology, which could witness an increased demand for multiple sites in closer proximity to one another given that 5G technology operates at a higher frequency and therefore reduced range compared to 3G and 4G technology.
For present purposes, however, site providers faced with a telecoms operator seeking access to their land to undertake an initial survey should be poised and ready to ensure that advice is taken from a telecoms specialist at an early stage. This will enable an appropriate agreement to be reached with the telecoms operator where possible taking into account any necessary approvals or other requirements needing to be sought or put in place before granting access in order to protect the site provider's position and, importantly, in order to avoid the site provider incurring unnecessary costs in litigation.