The New Electronic Communications Code – It's No Beauty Contest

Author:Mr Jan Willem van den Bos, Bryan Johnston and Emma Broad
Profession:Dentons
 
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Cornerstone Telecommunications Infrastructure Ltd v. University of London is the first substantial case on the new Electronic Communications Code (Code), which came into force in December 2017. It considers the circumstances in which an operator can seek interim rights pursuant to paragraph 26 of the Code to go on to a site to undertake preliminary surveys and investigations to determine whether the site is a suitable location for electronic communications equipment. Unsurprisingly, given the policy objectives behind the Code, the decision is very much in favour of the operator. However, the decision will also be of interest to landowners as it provides guidance as to how parts of the Code should be interpreted, which in turn may help landowners with how they oppose or otherwise respond to requests for access.

Background

Cornerstone is a joint venture company formed by mobile operators Telefonica UK Ltd (O2) and Vodafone Ltd. It is an operator but does not itself provide an electronic communications network. Instead, it installs and maintains apparatus which it makes available to its two shareholders. Having been forced to move equipment from one of its sites near Paddington Station, and relying on a temporary site to keep the local network going, Cornerstone approached the University of London requesting access to survey one of its halls of residence with a view to permanently locating its equipment on the roof. The request was not greeted with enthusiasm and, after a stand-off, Cornerstone applied to the Upper Tribunal (UT) for an order for interim Code rights.

To recap, under the new Code it is possible, subject to various conditions, for an operator to seek an order for interim Code rights. These are Code rights granted for a limited period of time which do not benefit from the statutory continuation provisions.

There were three issues before the UT:

Issue 1: Is a right of access to undertake a survey a Code right?

The UT helpfully clarified that paragraph 3 of the Code setting out the Code rights is a menu rather than a single right which must be acquired either in its entirety or not at all. So, when granting Code rights an agreement may impose some but not all of those rights.

The UT concluded that an agreement conferring the right to install equipment (paragraph 3(a) of the Code) necessarily entitles an operator to undertake preparatory steps required as a prelude to the installation itself. It also concluded that the right to do...

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