A second case has been decided by the Court of Appeal under the 2017 Electronic Communications Code (the “Code“). The Court upheld the decision of the Upper Tribunal that an approved operator under the Code has a right to access and carry out investigations on a site’s suitability for installation of electronic communications equipment (known as a “multi-skilled visit” or MSV). The Court also confirmed that the operator may apply under paragraph 26 of the Code for the imposition of an interim right solely to do a MSV. An operator is not required to link this application to an application for permanent Code rights to install the equipment.
The Court of Appeal considered at length the purpose and intention of the Code. At its heart is the push for efficiency and improvement in the country’s telecommunications network. Included in this aim lies the power of the Tribunal under Part 4 of the Code to impose a Code agreement on a site provider on both a permanent basis (paragraph 20) or an interim basis (paragraph 26) .
Specifically, the Court of Appeal was asked to consider two issues:
- Whether an MSV is capable of constituting a right under the Code; and
- If so, whether this Code right can be time bound and granted on an interim basis.
On the first issue the Court held that an MSV can amount to a Code right. The “works” in the definition of Code rights was construed widely enough to include a MSV, even though it was completely non-intrusive. Bearing in mind the purpose and intention of the Code, the Court had no trouble in finding that a MSV was a necessary first step to be “works” for the installation of telecoms equipment.
On the second issue, the Court of Appeal clarified that an application for interim rights under paragraph 26 to carry out an MSV can be made on a standalone basis and need not be in connection with a full application under paragraph 20. If granted, the interim Code right would not however have the security of tenure protection under the Code that full rights granted under paragraph 20 enjoy, which explains why the test for imposition of interim rights is lower. In practice, an operator would not require security of tenure for a Code right to carry out an MSV. Once it has completed the site visit, it will either decide to pursue an application under paragraph 20 for the full suite of installation and maintenance Code rights, or it will conclude that the site is not appropriate in which case the Code right for the MSV simply expires in accordance with its terms.
This case clarifies the Code for both site providers and operators, where previously a dispute may have arisen over the right to, and term of, access for an MSV. As the right to carry out an MSV can be a Code right, any consideration payable by the operator will be limited to the statutory “no scheme” valuation methodology, removing any ransom premiums.
University of London v Cornerstone Telecommunications Infrastructure Limited [2019] EWCA Civ 2075