Paving the way for 5G – more success for telecom operators


EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd [2021] UKUT 167 (LC)

Summary

A decision of the Upper Tribunal (Land Chamber) clarified the procedures for renewing existing agreements under the Electronic Communications Code (the Code).

Background

In this claim, EE and Hutchison 3G UK Limited (the Operators) occupy a site under a “subsisting agreement” under the transitional provisions of the Code.

In 2019, operators served notices pursuant to subsection 33 (1) of the code requesting agreement from David Paul Stephenson and AP Wireless II (UK) Limited (the site providers) to terminate the existing code agreement and enter into a new code agreement, being the standard operator contract.

No agreement was reached between the parties following service of the notices, so the operators applied to the Tribunal for an order terminating the existing agreement and imposing a new agreement, or alternatively ” such further order under paragraph 34 as the Tribunal may deem appropriate in all the circumstances ”.

The problems

The hearing focused on two preliminary issues:

  • whether the request to terminate and replace the current Code agreement with a new agreement would fail in circumstances where operators do not provide site-specific justification
  • whether the operators’ alternative request for a different order under paragraph 34 is doomed to fail in the absence of full details of the alternative form of order requested, and the site-specific need for such an order.

The Tribunal’s decision

The key points decided by the Tribunal were as follows:

  • An operator does not have to prove a site-specific justification for replacing an existing agreement with a new Code agreement. The Tribunal applied the recent Scottish appeal decision in EE Limited and Hutchison 3G UK Limited v Duncan.
  • While there is no doubt that the provisions of the Code are similar to those of the Landlords and Tenants Act of 1954 (the Act), the principle established in O’May, where there is a presumption against a modification of existing lease conditions under the Act, did not apply to Code agreements. Instead, the Tribunal should consider the terms of the existing agreement, but should consider all of the circumstances when deciding what order to make.
  • An operator may request the termination of its existing agreement and the imposition of a new agreement under its standard conditions, provided they are annexed to the notice.
  • When an operator served a notice requesting the termination of an existing agreement, then it would not be able to request a modification of the current agreement. A new notice will need to be served unless the site provider accepts the alternative approach.

Our comment

Welcome clarity was provided that the O’May Principle is not directly applicable to the renewal of existing agreements under the Code, although time will tell how the Tribunal will deal with the imposition of conditions under the Code. outside of existing agreements.

This decision also underlines the Code’s desire to confer broader rights and more flexibility on operators in the face of the imminent arrival of 5G networks and new technologies.


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