(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 106 of 130
10.15 We ask consultees:
(1) whether Code Operators should benefit from an ancillary right to upgrade their
apparatus; and
(2) whether any additional payment should be made by a Code Operator when it
upgrades its apparatus.
Consultation Paper, Part 3, paragraph 3.78.
As we have said previously Arqiva is both a landlord and a tenant so we see this issue from both
sides. As a landlord we are one of a number of infrastructure companies whose businesses are
based on granting contractual rights to Code Operators to install network equipment. The core
business model of such companies is that contractual revenues are typically linked to the level
and type of equipment installed as well as the wider rights granted and so a proposal to grant
ancillary rights to upgrade without a charge will cut across this and so damage such businesses.
This is also a practical issue when upgrades take place in that it may be necessary to upgrade or
strengthen the infrastructure as a result and the costs of these enhancements will have to be
recovered from the relevant Code Operators.
As a tenant we, of course, recognise the desire to upgrade equipment for the reasons identified at
paragraph 3.76 of the Consultation Paper. However, as explained in 10.5 and in our covering
letter, the relationship and contract with the landlord is usually with the first operator, or now often
a wireless infrastructure company. The lease may contain restrictions on upgrading equipment,
usually to trigger an additional rental payment and the agreement with the first operator or radio
site management company may also make provision for payments, linked not so much to the right
to use or occupy land, but for additional services and management fees. It would therefore be
wrong for any revised code to allow either of these governing contracts to be circumvented
without payments being made in line with those contracts.
Therefore, we would not support Code Operators having a general right to upgrade which might
be open to abuse and used to override all other agreements entered into willingly by a Code
Operator or a predecessor company. Where such rights have been determined by the
agreements freely entered into between the parties this should not be overridden by the code.
We therefore advocate a tiered approach to reflect different scenarios, with payments only made
as explained further at 10.44.
Such an approach would have the benefit of reflecting current practice and striking a fair balance
between the Code Operators, the landowners and wireless infrastructure companies (that might
be the first operator holding onto a lease).
Furthermore as a company we pride ourselves on having robust health and safety policies and
procedures. We consider these rigorous standards to be crucial to the safety of our employees,
contractors, customers and surrounding occupiers. Therefore any rights to upgrade, add to or
share equipment should not override individual company health and safety policies or statutory
obligations.
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