This was the challenge in a recent Upper Tribunal (England) telecoms case involving On Tower and BT – What, in fact, is electronic communications apparatus (ECA) for the purposes of the Electronic Communications Code (Code)? This mattered, because if the building in this case (an old BT telephone exchange) was not ECA, then, the lease between the parties would be a lease for the purposes of the Code and termination steps must follow the prescribed Code process. If the building itself was ECA, the lease would not be a Code lease at all and termination would be solely governed by the contractual process contained within that lease – in this particular case, a break notice provision.

The reason for this is that Code rights relate to land and, to prevent operators using the Code against one another, ECA (including any building which is ECA) is excluded from the definition of land for the purposes of the Code.

Relevant parts of the Code

Land (paragraph 108) as defined "does not include electronic communications apparatus".

ECA (paragraph 5(1)(d)) includes "…other structures or things designed or adapted for use in connection with the provision of an electronic communications network."

Structure (paragraph 5(3)) as defined "includes a building only if the sole purpose of that building is to enclose other electronic communications apparatus."

Ending a Code lease is done by serving notice (paragraph 31(1)), which states a "site provider who is a party to a code agreement may bring the agreement to an end by giving a notice in accordance with this paragraph to the operator who is a party to the lease."

What then ensues is some legal soul-searching on what the sole purpose is, of the BT telephone exchange building in Kenton Road, Harrow.

To be, or not to be – is that the question?

An example of the challenge before the tribunal is set out in the judgment (para. 40) in quoting the Oxford English Dictionary: "The purpose of temporary classrooms is … to cope with rapidly shifting population densities”; obviously a child may leave their pencil case in the temporary classroom at lunchtime, but the purpose of the classroom is not to enclose the pencil case but for teaching children in. One’s home may have bats in the loft, but the purpose of the building is to house one’s family and not to house the bats."

The reality in this case was that the building had other purposes than its main purpose to house its exchange equipment, such as, the accommodation of staff and the provision of welfare facilities. These were being deliberately done in the building. As such, the building was not ECA; and the lease for On Tower's ECA was a Code lease for termination purposes.

It was also confirmed that a paragraph 31 notice was required owing to the lease being a Code lease and a break notice would be ineffective; and (but for the continuation of Code rights under paragraph 30) the date specified in the notice could fall after the date on which the lease could have been brought to an end.

If you are an operator, infrastructure provider or landowner dealing with telecoms agreements, or you have any concerns or questions about the impact these issues may have on you or your business, please do not hesitate to get in touch with our Telecoms team or your usual Brodies' contact.

Contributors

Scott Logan

Partner

Lucie Barnes

Partner