Posted in Telecoms

The Electronic Communications Code – New case sheds light on Tribunal’s jurisdiction to impose an agreement under the Code

By Robert Shaw on

The Upper Tribunal recently issued another decision under the new Electronic Communications Code (the “Code“) on its jurisdiction to impose an agreement pursuant to paragraph 20 of the Code – Cornerstone Telecommunications Infrastructure Limited -v- Compton Beauchamp Estates Limited [2019] UKUT 107 (LC).

In summary, the Tribunal has no jurisdiction to impose rights under the Code in favour of a Code operator where a third party is currently occupying the land.

The facts

Compton Beauchamp Estates Limited (“Compton”) is the freehold owner of farmland near Swindon. Vodafone had in 2004 been granted a ten year lease over part of the land for its telecoms mast (“the Site”). The lease expired on 25 March 2014 yet Vodafone remained in occupation of the Site pursuant to a tenancy at will.  After negotiations for a new lease broke down, Compton sought to repossess the Site from Vodafone.

On 19 June 2018, the operator in the case, Cornerstone Telecommunications Infrastructure Limited (“CTIL”), served a notice on Compton pursuant to paragraph 20 of the Code requesting Compton grant a lease which would allow CTIL to occupy the mast site and to exercise the full range of Code rights.  CTIL then made an application requesting that the Tribunal impose an agreement on Compton under the Code – that agreement to be the proposed lease.

The decision

The Tribunal decided that it did not have jurisdiction to impose a Code agreement between Compton and CTIL under paragraph 20 of the Code for two reasons:

  1. Code rights must be conferred by the occupier or, where there is nobody in occupation “the person (if any) who for the time being exercises powers of management or control over the land”.  ‘Occupation’, for the purposes of the Code, was a question of fact, rather than a matter of legal status: it means “physical presence on and control of the land”. In this case, the ‘occupier’ was clearly Vodafone. For that reason, Compton could not have complied with the paragraph 20 notice given to it by CTIL as Compton was not the occupier and could not enter into an agreement to confer Code rights without first going into occupation.  It could not do that without Vodafone’s agreement, because Vodafone’s apparatus was lawfully on the Site.  This complication could have been overcome with Vodafone’s cooperation, but the agreement which CTIL asked the Tribunal to impose made no reference to Vodafone; and
  2. The Tribunal considered that even if it was wrong about the extent of its jurisdiction, it could, at best, impose an agreement contingent on Vodafone voluntarily giving up its rights of occupation of the Site. However, Compton had not been asked to agree to a contingent right and the Tribunal decided that it could not impose an agreement on a different basis to that which CTIL had claimed and for which it had argued.

Having disposed of CTIL’s application, the Tribunal went on to consider other issues of potential significance for operators and landowners:

Public Benefit Test – The Tribunal considered whether or not CTIL’s application would have met the ‘public benefit’ test set out in paragraph 21(3) of the Code, which must be satisfied where the Tribunal is to impose an agreement.  The Tribunal concluded that CTIL would have done so, given the precarious nature of Vodafone’s rights over the Site.  However, this would not necessarily have been the case if Vodafone still had a right to possession of the Site, as provided for by the original lease.

Consideration / Compensation – The Tribunal commented on the consideration and compensation provisions in the Code. The Tribunal was clear that it would be unimpressed by valuations on the part of any party that resulted in figures that were improbably high or low. The Tribunal said that it hoped the evidence presented in future references involving rural property will focus more closely on specific transactions in relevant comparable situations.

Comment

The case demonstrates the Tribunal’s strict interpretation of the new Code and clarifies that full account needs to be taken of who is the “occupier” of the land and being requested to enter into a code agreement.  If an operator wishes to install telecoms apparatus on a piece of land, the occupier of the land must be served with the notice under paragraph 20 of the Code. The occupier could be the tenant or the freehold owner – this is a question of fact.  If CTIL had applied to the Tribunal to impose an agreement between itself, Vodafone and Compton, this could have been granted.

Therefore, if an operator wishes to bind a freeholder who is not in occupation, the operator should serve a notice under paragraph 20 on both the occupier and the freeholder and either:

(a) enter into a Code agreement with the occupier and a separate agreement with the freeholder; or

(b) create a tripartite agreement between the parties to confer Code rights.

Ben Rogers (Legal Director) & Rob Shaw (Senior Associate) 

The authors would like to acknowledge Sofia Wyzykiewicz, trainee solicitor at DLA Piper UK LLP, for her contribution to this article.

Posted in Telecoms Uncategorized

The Electronic Communications Code – First Tribunal Decision on Consideration and Compensation payable by Operators

By Robert Shaw on

The Upper Tribunal recently issued its first decision under the new Electronic Communications Code on the consideration and compensation payable by an operator to a site provider – EE Limited and Hutchison 3G Limited -v- The Mayor and Burgesses of The London Borough of Islington [2019] UK UT.

Operators will welcome the decision as it supports their view that lower amounts are payable for Code agreements.  The decision is also useful for the guidance it offers on: (1) how a Code agreement is put in place when the Tribunal is asked to impose one; and (2) whether the Tribunal could impose an agreement by way of a lease.

The facts

The operators identified the rooftop of a block of flats belonging to The London Borough of Islington (“Islington”) as an appropriate site to install their telecoms apparatus. The operators and Islington failed to agree on terms for a Code agreement. The operators therefore referred matters to the Tribunal for determination.

The decision

  1. Form and mechanics of imposing a Code Agreement

The Tribunal decided that the Code did not restrict the type or form of agreement to be entered into between the parties and that it had jurisdiction under the Code to impose an agreement by way of a lease.  In addition, the Tribunal’s order, by itself, was sufficient to confer Code rights on an operator and would bind a site provider.  There was no need for the parties to enter into a “parallel” agreement once the Tribunal had made its order.

  1. Consideration

Paragraph 24 of the Code provides that the consideration “must be an amount or amounts representing the market value of the relevant person’s agreement to confer or to be bound by the Code right“.  Market value is the amount a willing buyer would pay a willing seller for the agreement and various assumptions are to be made, principally that the rights that the transaction relates to do not relate to the provision or use of an electronic communications network.  The Tribunal referred to this as the “no network” assumption.

The operators argued that the roof top site only had a nominal rental value, on the basis that the only use of the site was for telecoms equipment and that this use had to be discounted because of the “no network” assumption. The Tribunal decided that:

  • an operator is not able to use the absence of demand, by itself, to drive the consideration payable down to such a level that the site provider would not be willing to enter into an agreement;
  • the value of the land in each case will depend on its characteristics and potential uses and not only on the number of potential bidders in the market; and
  • transactions under the old electronic communications code could not be used as comparables to assist with calculating consideration under the new Code.

The Tribunal expressed that the consideration for the grant of the Code rights had a nominal value but that the consideration must also take into account the “risks and obligations” which Islington would be subject to as a site provider (such as Islington’s expenses of running the building).  By referencing the service charges paid by flat owners in the building, the Tribunal assessed the consideration payable by the operators as £1,000 per year.

3. Compensation 

In addition to the consideration payable, the Tribunal may order (under paragraphs 25 and 83-86 of the Code) the operator to pay compensation for any loss or damage that has been, or will be, sustained by the site provider due to the exercise of the Code rights by the operator.  In this instance, the Tribunal ordered that Islington was entitled to:

  1. its reasonable legal and valuation fees in connection with seeking to agree terms for a Code agreement (but not costs incurred in resisting an agreement from being imposed by the Tribunal); and
  2. compensation for the temporary use of its land at ground level for a working compound and the site of a crane whilst the operators’ apparatus was installed.

However, Islington was not entitled to compensation for any diminution in value of the land.

Whilst the “no network” assumption would prevent a site provider from realising the true value of its land this did not give rise to a loss for which compensation was payable. The Tribunal highlighted that it could not have been Parliament’s intention to treat the entry into a Code agreement as being an event that would give rise to loss or damage under the compensation provisions in the Code. Islington’s other claims for compensation were dismissed as being speculative or unfounded, although Islington is still entitled to bring future compensation claims.

Ultimately, the Tribunal imposed a 10 year lease on the parties with an annual rent of £2,551.77 (which the operators had already indicated they were prepared to pay) and otherwise on the terms of the agreement proposed by the operators.

Comment

While the case is likely to be considered a win for operators, there are still many grey areas to be clarified by the Tribunal. There are likely to be more cases on the new Code as both operators and site providers are still keen for clarification on how the Code is to be applied.

One further point from the judgment worth noting is that Islington failed to comply with directions made by the Tribunal to propose amendments to the draft agreement prepared by the operators.  As a result the Tribunal debarred Islington from being able to call evidence or make submissions on the terms of the agreement proposed by the operators, except for on the issues of the consideration and compensation.  The Tribunal has thus issued an early warning that it will not tolerate non-compliance.

Rob Shaw (Senior Associate) and Ben Rogers (Legal Director)

Posted in Internet of Things Privacy and Data Security Technology and Commercial Uncategorized

Smart Technology – A new industry initiative

Anne FriedmanBy Anne Friedman on

Written by Michiko Jo

Consumer products using smart technology bring excitement as well as solutions and convenience to everyday life.

However, the connected and dependant nature of smart technology products to related services and other devices means that there are features and characteristics which are not found in traditional standalone products.   

Last week, DLA Piper at its London Office jointly launched and hosted with Electrical Safety First (ESF) a roundtable stakeholder meeting for discussions on the issues, obligations and best practices around the safety risks associated with smart technology (https://www.linkedin.com/feed/update/urn:li:activity:6514503874731130880/ ). This, the first in a sequence of Smart Technology Product Safety Stakeholder Meetings, is an industry-led forum attended by industry bodies and other stakeholders in this space along the supply chain including manufacturers and retailers.

The forum was set up with a view to:

·     Identifying and analyzing the issues and concerns around how failure of smart technology (or part of connected technology) could result in loss or damage to end users, particularly consumers;

·     Identifying legal obligations and risks to end users and other stakeholders operating in the connected technology space; and

·     Developing and promoting good practice and initiatives to assist industry in taking necessary steps to demonstrate compliance with the law for the mutual benefit of industry and end users.

This initiative was preceded by the ESF’s seminar on the safety of connected home in April 2018 and its Annual Conference in November 2018 where I chaired a panel discussing consumer trust and product liability in the context of IoT and 3D printing (https://www.linkedin.com/feed/update/activity:6473946072627576832/ ).  

Given the benefits that smart technology can offer to consumers when used as expected, it is in the interest of both consumers and the industry to assist the consumers in their better understanding of these products.

The forum will work towards production of a consumer facing document. I look forward to working on this initiative and hope to be able to give an update to the readers of this blog in future.

Posted in Telecoms

Access Rights to Telecoms Sites

By Robert Shaw on

CTIL v University of London [2018] 

The new Electronic Communications Code (“Code”) came into force on 28 December 2017 with its aim being to update telecommunications operators statutory rights to enable the installation, maintenance and use of telecoms equipment in order to operate their networks or provide an infrastructure network.

Much of the drafting contained within the Code has left some ambiguity on how it will operate in practice with the first substantive decision on the Code being CTIL v University of London [2018] UKUT 356.

The case concerned operators’ interim access rights at sites under the Code and the Upper Tribunal’s (“Tribunal”) ability to impose an agreement for access where terms cannot be agreed with a site owner.  An issue for operators of telecommunication services is that due to the perceived stringent nature on site owners of the Code provisions, site owners are often reluctant to allow operators to install equipment on their land and in this case, even grant access to operators for the carrying out of surveys to assess the suitability of sites.

In this instance the operator, CTIL, believed that the most suitable site for a new telecoms mast in the Paddington area of London was a building owned by the University of London.  CTIL approached the University and asked for permission to survey the rooftop, but the University refused permission.  CTIL therefore served a notice under Paragraph 26 of the Code seeking interim Code Rights.

The first question before the Tribunal was whether interim access (under Paragraph 26) for the purposes of a survey was a right granted to operators pursuant to the Code i.e. a “Code Right”.  The Tribunal held that the Code Rights should be interpreted widely in line with the overall objective of the Code, that is to enable easier and faster installation of telecommunications infrastructure.  As such the decision was clear that interim access for the purpose of surveying a site to assess its suitability was a Code Right, within either paragraph 3(a) or 3(d) of the Code:

Paragraph 3: ‘a “code right” … is a right:

(a) to install electronic communications apparatus on, under or over the land,

(d) to carry out any works on the land for or in connection with the installation of electronic communications apparatus on, under or over the land or elsewhere’

Amongst other reasons, such an approach was also supported by the need to avoid a situation where the Code was undermined by allowing landowners to ransom access to sites.

The University contested a second point that if an operator intended to seek an agreement for interim rights, then this needed to be twinned with an application for permanent Code Rights as when deciding whether to grant interim rights paragraph 26 refers to a lower standard of proof  – that being the operator has a “good and arguable” case.  The University contended this presented a way around the more stringent test for permanent Code Rights.

However, the Tribunal was satisfied after analysing the Code that there was no condition that an application for interim rights must be twinned with or be a precursor to an application for permanent rights.

This decision is welcome clarification on the provisions of the Code.  It bolsters the operators’ position when looking to rollout and maintain their networks and demonstrates that the Tribunal seem minded to view drafting within the Code with a broad lense that seeks to achieve the purpose of the Code – making installation and maintenance of telecommunications networks for operators more straightforward.

Ben Rogers (Legal Director) and Rob Shaw (Senior Associate)

The authors would like to acknowledge Danny Lavender, trainee solicitor at DLA Piper UK LLP, for his contribution to this article.

Posted in Telecoms

Ensuring Tenants’ access to gigabit-capable connections

By Robert Shaw on

On the 29th October 2018, the Department for Digital, Culture, Media and Sports published a consultation that focuses on addressing the issue of compelling landlords to consider the telecoms connectivity of their tenants and allowing Operators to install infrastructure where landlords are unresponsive.

The consultation is specifically seeking views on proposals to support residential and commercial tenants that want to receive gigabit-capable connections. This includes ways to improve the response rate of landlords to requests for access from Operators and the options available to Operators when a landlord fails to respond.

At the moment it would appear that Operators are reluctant to take the issue to the Upper Tribunal (although some cases under the New Electronic Communications Code are starting to come through) as they want to keep landlords on their side for commercial reasons and the process of going to the Upper Tribunal can take considerable time (an estimated 7-12 months).

The consultation states that for the implementation of access or wayleave agreements, Operators have informed the government that a high number of landlords (particularly in relation to multi-dwellings) are not responding to requests for access. The result has been that as the Operators are prevented from providing services, they have removed the properties from their build plans altogether. This is due to the additional administrative burden in chasing up unresponsive landlords which is not cost effective for the deployment of new infrastructure.

Essentially the proposals seek to amend the New Code using primary legislation to encourage landlords to engage with operators where a tenant requests a service. The intention is to amend the New Code so that an obligation is placed on landlords to facilitate access once they have been suitably notified by an Operator or where a service request is made by a tenant. Where a landlord is absent or unidentifiable, access may be granted via a magistrates’ court issued warrant of entry which is similar to powers that already exist in relation to gas, water and electricity.

This court enabled access is intended to be temporary, allowing the Operators to install and maintain electronic communications apparatus and will remain valid until such time as the landlord engages with the Operator and a negotiated voluntary agreement is put in place (or, presumably, one is imposed under the existing provisions of the New Code).  The proposal states that the Operators will be able to apply 2 months after first contacting the Landlord.  There will also be stipulations on the mode and frequency of how the Operator has contacted the Landlord prior to applying to the Magistrates’ Court.

The consultation closes on 21 December 2018.

Ben Rogers (Legal Director) and Rob Shaw (Senior Associate)

The authors would like to acknowledge Danny Lavender, trainee solicitor at DLA Piper UK LLP, for his contribution to this article.

Posted in Telecoms

The New European Electronic Communications Code (updated)

Mike ConradiBy Mike Conradi on

[This is an updated version of my earlier blog piece from July to take account of revisions agreed through the legislative process since then. On 4th December the European Council concluded the legislative process for the new Code and the final text will be published in the EU Official Journal on 17 December, though no changes are expected to this text which dates from 21 November. Please also see my (updated) further piece specifically on the new co-investment rules, also published today]

***

The new European Electronic Communications Code contains some significant developments for the European telecoms sector, and it updates the EU’s widely respected regulatory structure, often used as a reference for best practice internationally [i].  It repeals all the existing 2002 Directives and replace them with a single, consolidated text, for implementation in Member States within two years (ie by December 2020). Having spent some time reading through the (c.450) pages the main changes or issues appear to be as follows:

Continue Reading

Posted in Telecoms Uncategorized

Co-Investment Models for Broadband Infrastructure – an explanation and short critique (updated)

Mike ConradiBy Mike Conradi on

[This is an updated version of my earlier blog piece from July to take account of revisions agreed through the legislative process since then.]

***

The new European Communications Code (the “Code” – which I have blogged about here) will introduce a mechanism allowing investments in fibre networks made by operators with significant market power (SMP), in some circumstances, to be excluded from the normal access rules that are usually imposed by national regulatory authorities (NRAs). This blog piece will discuss this further and look at some possible models that could qualify for the exemption before concluding with some comments critiquing this new approach on the basis of its deviation from the well-respected (and broadly successful) approach that would otherwise have applied. For the reasons explained below the new rules could even act as a disincentive to new investment over the next two (plus) years.

The Exemption – Commitments and the “cumulative conditions”.

The rules on co-investment are contained at Article 76 of the Code. This says that:

Undertakings that have been designated as having SMP may offer “commitments” to open the deployment of a new very high capacity network (that consists of optical fibre elements up to the end-user premises or base station) to co-investment.

The first point to note, then, is that this applies only to optical fibre and would not apply to other technologies (such as satellite) irrespective of their merits. This is of course a deviation from the normal principles of technology-neutrality that usually govern EU telecoms regulation.

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Posted in Uncategorized

FCC Eliminates the 2006 Solicited Fax Rule

Jennifer KashatusBy Jennifer Kashatus on

The Federal Communications Commission issued an order on Wednesday, November 14, 2018, eliminating the “Solicited Fax Rule”—a blanket requirement created by the FCC in 2006 requiring senders of facsimile advertisements to include opt-out information on every facsimile, even if the recipient technically “solicited” the advertisement. This order came in (somewhat-delayed) response to the 2017 D.C. Circuit Court of Appeals opinion Bais Yaakov of Spring Valley v. FCC—authored by then-Judge/now-Justice Brett Kavanaugh—which held that imposing such a requirement exceeded the authority given to the FCC by the 2005 Junk Fax Prevention Act. The order explicitly renders moot all pending petitions for retroactive waiver of the Solicited Fax Rule, and has the added effect of resolving any remaining circuit splits on the issue.

Posted in New Privacy Laws Privacy and Data Security US State Law

California Consumer Privacy Act of 2018: Will You Be Ready?

Jennifer KashatusBy Jennifer Kashatus on

Effective January 1, 2020, a new game-changing privacy law will go into effect in California:  the California Consumer Privacy Act of 2018 (CCPA). The law will have profound implications for companies that collect personal information, as that term is broadly defined, about California consumers, even if the Company is not based in California. For many companies, compliance with the law will require substantial implementation time, not only to address the legal issues but also to implement any operational changes that may be necessary for your company to be able to meet the requirements with the law. We often are asked whether applying an EU-like GDPR compliance program to California residents will be sufficient to address CCPA. There are substantial differences between GDPR and CCPA, such that compliance with GDPR will not cover all of the CCPA requirements. To this end, we have prepared an overview of the CCPA as well as a brief comparison of key individual rights under GDPR as compared with CCPA.

 

 

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