23rd January 2019
When it came into force at the end of 2017, the Electronic Communications Code – originally introduced in the Telecommunications Act 1984 and extended in the Communications Act 2003 - signalled the first significant revision of the regulatory framework for the telecommunications industry for almost two decades.
In November last year, the first substantive case on the new code was brought before the Upper Tribunal. It offered greater clarity in interpreting the wording contained in the new legislation.
Cornerstone Telecommunications Infrastructure Ltd v University of London (UofL) considered the circumstances in which a telecommunications operator can seek to exercise its interim rights of access to a landowner’s property under paragraph 26 of the code.
Cornerstone - a joint venture between Telefonica UK Ltd (O2) and Vodafone Ltd - approached UofL seeking its approval to inspect and survey one of the university’s buildings in order to assess its suitability for erecting telecommunications equipment. The university refused the request, prompting Cornerstone to apply to the Upper Tribunal for an order for interim code rights to allow it access to UofL’s building.
In reaching its decision in favour of Cornerstone, the Upper Tribunal clarified the position in relation to paragraph 3 of the code. It concluded that an agreement which confers the code right to install apparatus on a landowner’s property also enables the operator to conduct preliminary investigations into the land’s suitability for installing apparatus. (Such interim rights do not include any statutory rights of continuation.)
Content that Cornerstone had a “good arguable case” for the making of an order under paragraph 20 of the code, the Upper Tribunal considered whether Cornerstone had satisfied the two limbs of the test under paragraph 21 which would give rise to interim rights of access.
The first limb of paragraph 21 questions whether the prejudice caused to the landowner (in this instance, UofL) by granting the order can be adequately compensated by money. The second limb considers whether the public benefit likely to result from making the order outweighs the prejudice to the landowner.
In respect of the first limb, this was easily satisfied as the inconvenience caused to the university by Cornerstone’s access to its property was capable of being resolved by way of monetary compensation.
In relation to the second limb, this was also satisfied as the investigation by Cornerstone was outweighed by the potential public benefit of receiving high-quality electronic communications services. The Upper Tribunal held that the level of public benefit required to satisfy this limb only needed to be relatively modest to succeed.
This case illustrates the stance of the new code in giving operators more robust powers in exercising their statutory rights for the provision of super fast telecommunications. This will most likely culminate in challenges to the assertion of code rights by landowners looking to hold on to their property interests. Conversely it may lead to a rise in telecommunications agreements, with landowners taking measures to secure fair and reasonable arrangements with operators which are mutually beneficial.