(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 107 of 130
10.16 We ask consultees:
(1) whether the ability of landowners and occupiers to prevent Code Operators from
sharing their apparatus causes difficulties in practice;
(2) whether Code Operators should benefit from a general right to share their apparatus
with another (so that a contractual term restricting that right would be void); and/or
(3) whether any additional payment should be made by a Code Operator to a landowner
and/or occupier when it shares its apparatus.
9
Consultation Paper, Part 3, paragraph 3.83.
(1)We have seen no evidence that the ability to control sharing has caused difficulties to do so in
practice. We reiterate the point made in response to paragraph 10.9, point 3 above that the roll
out of wireless cell sites in the UK has been very effective and it is widely acknowledged that the
UK has the most comprehensive level of wireless infrastructure in Europe.
In our combined 20 years of experience in this sector, we are unaware of any examples of
landowners wishing to prevent sharing for the sake of it or in return for a ransom payment.
Landowners are very willing to facilitate sharing provided that the terms of existing written
agreements are honoured and, where appropriate, increases in rent are paid in accordance with
settled market comparables. The requirement to comply with freely negotiated agreements
should not be classed as a “difficulty” experienced by Operators to share apparatus. We are
aware that companies such as WIG, Shere and Arqiva that specialise in the provision of site
infrastructure to wireless operators (and therefore assist in the provision of wireless services to
the UK in a very real and measurable way) have concluded multi site agreements with H3G and
Everything Everywhere Limited to allow sharing. They did not discourage sharing, but positively
encouraged it to support their income streams. There is no evidence of a wireless cell site
deployment issue, so there is no need to legislate on the issue.
(2) and (3) There should not be a general right to share apparatus and there should be the ability
to require additional payment when sharing occurs. Companies such as WIG, Shere and Arqiva
invest capital to provide site infrastructure which assists in the provision of a wireless system
within the UK. Their ability to obtain a return on their investment depends on their ability to
control access to their infrastructure by Operators in return for additional consideration. If the
ability to obtain that consideration was adversely affected, it would have a significantly detrimental
effect on the number of sites being made available for wireless Operators and therefore adversely
prejudice the Government’s aim to improve broadband connectivity.
There is also a separate issue relating to the right to share apparatus installed on land with no
additional payment made to the landowner. WIG, Shere and Arqiva each own towers themselves
upon which Operators erect apparatus. Under the existing Code, those towers are classed as
apparatus and, due to their degree of annexation (simply being bolted to the ground) they
arguably would not form part of the land. Indeed, the multi million pound joint venture company
currently being set up between Telefonica and Vodafone (called Cornerstone Technology
Infrastructure Limited) is proceeding on the basis that just the towers alone are apparatus
protected by the Code, and do not form part of the land. We are informed by that company that
they have been granted a licence by OFCOM which grants their towers protection under the
Code. To be clear, that company will not own the transmitting apparatus itself – that will be
retained by Vodafone and Telefonica. Using the same model, there is no reason why WIG, Shere
and Arqiva could not do the same. They could obtain Code protection for their own network of
towers and as they would not form part of the land, the Operators would not obtain a right under
3528814-2-Electronic Communications Code - Shoosmiths Response Form
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