Clarifying the Definition of Electronic Communications Apparatus: An Update

The need to be digitally connected has risen sharply over the past decade, and as the government delivers on its levelling up project and ambition to ensure the country as whole has access to adequate connections, an increase in the apparatus needed to make this happen is only inevitable.

Most of us now have access to a communication network as and when we need it to help us navigate the demands of daily life and consequently don’t have to walk too far out of our front doors to see some form of electronic communications apparatus. Obvious examples of apparatus include telephone poles and lattice towers, but have you ever wondered when a building can be considered as electronic communications apparatus?

This is one of the preliminary issues that the Upper Tribunal recently considered in On Tower UK Limited (“On Tower”) v British Telecommunications PLC (“BT”) [2024] UKUT 51 (LC).

A select number of companies (known as “Operators”) are given power under the Electronic Communications Code (“the Code”) to help - as Ofcom puts it - ‘facilitate the installation and maintenance of electronic communications networks’. These rights are known as “Code rights”.

Code rights are rights granted in respect of “land”, which, under the terms of the Code, does not include electronic communications apparatus.

A “structure” can be considered electronic communications apparatus, but a structure does not include a building unless the sole purpose of the building is to house other electronic communications apparatus.

In respect of the above case, On Tower has equipment on the roof of a telephone exchange owned by BT. It occupied this site under the terms of what the Tribunal called “the Site Lease”.

BT argued that On Tower does not have Code rights on the basis that the sole purpose of the building is to enclose other electronic communications apparatus (which means it is not considered “land” under the Code). The knock-on effect of this would be that the Site Lease wouldn’t be a Code agreement and On Tower wouldn’t benefit from the provisions of the Code that favour/protect Operators.

Unsurprisingly, On Tower disagreed.

The building contains office, storage and welfare facilities and whilst BT argued that to find the purpose of an object, we have to ask what it is intended for (and that the exchange was built for and has been retained for the enclosure of electronic communications apparatus), ultimately the Tribunal found that the exchange does not have as its sole purpose the enclosure of electronic communications equipment and therefore the Site Lease confers Code rights and is a Code agreement.

The Tribunal did acknowledge that the building’s main purpose has been to house apparatus, but that “it is a long way from being a building that has no other purpose”.

This is a significant case for the telecommunications sector as once the Tribunal considered whether the Site Lease was a Code agreement, they then had to consider whether it is necessary for a site provider who wants to terminate a Code agreement to serve both a break notice and a statutory notice (known as a paragraph 31 notice). This is a discussion beyond the scope of this note but highlights the rapidly changing law surrounding the Code. If you need any assistance in respect of the Code or electronic communication apparatus, please do not hesitate to contact us.