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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
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