The Supreme Court has handed down judgment in three ground-breaking telecoms appeals[1], siding with the operators on the meaning of the term "occupier" in the Electronic Communications Code (the "Code"). This judgment is of vital importance to the continued rollout of 5G technology.

Summary

Until now, the meaning of the term "occupier" in the Code has been unclear, with decisions in both the Upper Tribunal and the Court of Appeal contributing to a situation where an operator who has equipment in situ was unable (in certain circumstances) to use the Code to obtain new rights.

The Supreme Court held that - regardless of the nature of an operator's occupation of a site - an operator can use the Code to obtain new code rights during the term of their existing agreement and that operators do not need to wait until the expiry of their agreement to access new rights.

The meaning of "occupier"

Paragraph 9 of the Code set out that code rights may only be conferred to the operator by the occupier of land. In earlier decisions, the courts have held that an operator with equipment already installed on the land could itself be the occupier. Since a party cannot grant rights to itself, the on-site operator was thereby precluded from using the Code to obtain new rights. The definition of "occupier" therefore became a vitally important question to the ongoing rollout of telecoms apparatus. Although an operator might have been able to acquire new rights at the end of the term of their existing agreement, they couldn't upgrade their sites during the currency of the term.

The Supreme Court's decision

The Supreme Court's decision grasps the nettle of how the term "occupier" should be defined under the Code. Lady Justice Rose (with whom the other four Justices agreed) held that "the fundamental premise of para 9 is that the "operator" and the "occupier of the land" are different persons" (paragraph 117). She went on to hold that it is intrinsic to the New Code that an operator on-site seeking additional code rights is not the occupier. The view of the court was that it is open to an operator in that situation to seek additional rights from the landowner (and if such rights are not forthcoming, operators can apply to the Court under paragraph 20 of the Code for the imposition of such new rights).

What are the implications of the decision on operators and site providers?

Operators who are on-site can seek new Code rights (in addition to those which they already enjoy) via Part 4 of the Code. Existing rights under the Code should be renewed using the applicable renewal process (be that under Part 5 of the Code of the 1954 Act).

The decision brings some welcome clarity to all sides of the telecoms debate and will now hopefully lead to a speedier rollout of telecoms apparatus to support new technologies.

For more information, read the decision (in relation to which Gowling WLG acted for the appellant in two of the appeals, Cornerstone Telecommunications Infrastructure Limited).

If you have any questions, please contact Martin Thomas, Emilie Beek or Rob Bridgman.

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Footnote:

[1] Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, Cornerstone v Ashloch & anr and On Tower UK Ltd v AP Wireless II (UK) Ltd.