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Telecommunications interim code rights: Rights of access to assess suitability for telecommunications installation (EE Ltd and another v London Underground Ltd – 2021)

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When assessing premises for suitability of telecommunications apparatus installation, if a telecommunications provider is denied access can it obtain interim code rights to permit it to enter and undertake a multi-skilled visit and surveys?

The background

In EE Ltd and another v London Underground Ltd [2021], EE wished to assess premises within London Underground’s operational demise for the purposes of telecommunications apparatus installation. The building was a network power control centre in London, and a suitable alternative site for apparatus following a request for relocation of existing apparatus. EE wished to conduct a multi-skilled visit, comprising surveyors, engineers and other experts, to carry out surveys and assess the suitability of the building which required access to the roof.

The proprietor of the building stated that only a very limited number of key personnel could be permitted to the area, and they must have been thoroughly security vetted. EE stated that it would comply with all restrictions. In making an application for interim code rights under para 26 of the Electronic Communications Code, EE considered that the only prejudice suffered by the proprietor was inconvenience in the provision of access and staff to accompany the applicants and offered a financial compensation in respect of this. In response, the proprietor emphasised its concerns regarding security, including the diversion of staff to accompany the visit, which could not be financially compensated.

The decision

The Upper Tribunal made an order granting interim rights for the multi-skilled visit, finding that with cooperation between the parties it was possible to conduct such a visit without compromise on security.

The UT considered the provisions contained at para 21 of the Code, which allowed for interim code rights where:

  1. the prejudice caused was capable of being adequately compensated by money; and
  2. the benefit to the public of making the order outweighed the prejudice caused.

The UT needed to consider the public interest in having access to quality telecommunications in reaching its decision. EE stated that, if the apparatus were not relocated, customers would be negatively impacted through reduced service, lack of data services and an adverse impact on performance of emergency services communications which relied on the EE network.

Given the importance of mobile telecommunications, serious consideration is given to the need to install reliable apparatus at suitable sites. The UT found that the access requirements of the operator in this case were not incapable of financial compensation, and the proper supervision of personnel required at the site could be delivered at EE’s expense. EE had made a good arguable case, and the order was granted.

Advice and action for landlords

The installation of quality telecommunications apparatus is now an essential part of our infrastructure, and this case supports the requirements of operators to be able to access buildings to assess their suitability.

Landlords of buildings to be assessed should be aware that, where additional security personnel, supervision or other vetting procedures are required to be in place for a visit such as this, financial payment is considered sufficient compensation, and landlords and operators are required to cooperate to find solutions where there may be potential barriers to access.

The Upper Tribunal made an order granting interim rights for the multi-skilled visit to assess the building’s suitability for telecommunications apparatus, finding that with cooperation between the parties it was possible to conduct the visit without compromise on security.

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