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Electronic Communication Act 2017 v
Police and Criminal Evidence Act 1984

Electronic Communication Act 2017 v Police and Criminal Evidence Act 1984

So, who has more powers, Code Operators (the Telecoms companies licenced by OFCOM) or the Police?

Most people with answer, the Police, however, in my opinion this is incorrect. Let me pose two scenarios:

Scenario 1:

You get a knock on the door and the boys in blue ask to enter your property to search it. You ask if they have a Search Warrant and upon being told they do not, you politely or impolitely decline their request. Under general circumstances (e.g. they are coming to arrest a person, capture a suspect, prevent harm, or enforce legal orders), they will leave and come back some time later with a Search Warrant and carry out their search.

Scenario 2:

You get a knock on the door (or a call or an email) from a representative of a Code Operator who informs you that your building has been selected as a possible location for a new telecoms installation for a mobile phone base station. Whatever the reason given for your refusal to agree to allow them access, the refusal is likely to end up with the Code Operator requesting that the Tribunal impose an agreement on you.

So why do I believe that the Code Operators have more power?

Well, when the Police return to your property to search it with warrant in hand, they do not present you with a bill for their costs incurred obtaining the search warrant.

However, despite the fact that the only body that can impose Code rights on a property owner in favour of an Operator is the Tribunal who must consider various factors prior to doing so and I quote the Digital Economy Act 2017, Schedule 1 — The electronic communications code:

What is the test to be applied by the court?

21 (1) Subject to sub-paragraph (5), the court may make an order under paragraph 20 if (and only if) the court thinks that both of the following conditions are met.

(2) The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.

(3) The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

When an Operator applies to the Tribunal because they cannot get a consensual agreement with the property owner, they seek (and have been awarded) costs against the property owner arguing that the property owner should have entered into a consensual agreement.

As I see it, until the Tribunal considers the facts of the application and applies the tests quoted above, the property owner is within his rights to refuse and should not be penalised with ANY costs awarded against him should the Tribunal decide an agreement should be imposed.

So if the Tribunal have been awarding costs against property owners for not allowing access without the Tribunal input, let me ask again – who has greater powers, the Police or the Code Operators?

View Full Sky News article here

Interesting piece on the Code which I was interviewed for last week. Although the interview was around 20 minutes, this was edited down to a small segment for broadcast in light of current events.

What hasn’t been shown or written is my disagreement with the view that 5G is being held up by the Code and my thoughts on disputes between Operators and property owners over dramatic falls in annual rents.

The majority of the work we deal with is in relation to the renewal of expired leases that the Operators now wish to renew and reduce the rents down to a mere fraction of the current rent and the original rent agreed. The claim “that rents have got out of hand” may be true for a small percentage of metropolitan rooftop sites, however for the majority of sites, operators pay sums they successfully set themselves and this can be seen across the board with the few exceptions.

In a lot of the cases we have been dealing with, the Operator continues to pay the rent where leases have expired, the landlord has accepted it and life has gone on as usual – that is until the new Code came into force and the Operators decided that it was an urgency to renew the lease under the new Code terms, and the battle with property owners began when they were offered the minimal sums reported.  Very often the original leases contain all the rights the Operator would need to upgrade to new technologies, including 5G and beyond, therefore the position that new agreements were needed to facilitate the new technology was false in the majority of cases. 

When we are dealing with requests to upgrade the sites for 5G, we are seeing that the Operators do not have enough people to effectively ensure the matter progresses quickly. Arranging a structural survey to assess the structural impact on a building of circa 10 tons of new equipment can take 6-8 weeks to take place. Any changes to the original design can take another 6-8 weeks. This is due to the lack of delegated authorised persons in the Operators ranks, as well as not nearly enough structural engineers/designers available to carry out the works, causing a considerable backlog.  There has also been a reluctance from Operators to provide landlords with a complete set of drawings showing the extent of works upon sites, and also the public exclusion zones showing safety zones around rooftop antennas, which provide landlords with the complete information to make informed decisions, allowing them to fulfil their legal health and safety obligations.

I believe the spurious claim that 5G rollout is being held up by greedy landlords is a distraction from the main issues and being spread by Operators to obtain greater rights and force rental levels down even further.

The changes to the legislation discussed in the piece are further reforms the Operators have been pushing the Government for.  Following a consultation at the end of Jan 2021, they are now looking for the legislation to effect agreements completed under the old legislation and greater rights over properties.  Well aware of the disparity in financial power between themselves and smaller property owners, the Operators have been quick to threaten legal sanctions against landlords if their demands are not met quickly enough with the added threat of the unsuccessful party having to also bear the Operators legal costs, which can reach six figure sums in such cases.

Fortunately, there have been legal cases where the courts have recognised the inequitable difference in power between in parties and held several important judgements against Operators, however as the legislation is still in its relative infancy, we would expect these to be challenged in the near future.  If you receive correspondence from your Telecoms tenants, demanding unfair changes to the terms of your existing agreement or other related matters, please feel free to phone us for further consultation at no extra cost to yourself.

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