(Redacted) - Responses 105 to 130 - Law Commission

Consultation response 106 of 130
take account of the above concerns in our answer to that question.
Additionally, the Code Powers should be extended to provide rights in an emergency. Electronic
communications are an essential requirement of modern life and the need to maintain services in
an emergency already has statutory recognition. For example, Class A A. (b) of Part 24 of
Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995
allows the installation of moveable apparatus for a period of 6 months in the event of an
emergency.
Arqiva has had specific experience of major catastrophic events – a fire which destroyed a 150
metre high radio broadcast mast at Peterborough and a fire at the Oxford Main Station Mast, also
about 150 metres high, during the Digital Switchover works. In both cases agreements had to be
rapidly reached with adjoining landowners to allow emergency masts to be erected and for
access. This has led to a review of our contingency planning, but in both these cases we were
lucky to be able to agree terms on a reasonable basis with the landowner. However, we consider
emergency rights to access and use land are required to:
• Allow for the fact that even with thorough contingency planning, it is not possible to cover
all eventualities or scenarios, especially with very large masts.
• Avoid a situation where a landowner in a unique position could try and ransom an
operator.
• Allow access to be gained where the landowner is not readily identifiable or contactable.
Such rights should be temporary in nature and extend no longer than required for providing
temporary replacement coverage and subsequent decommissioning (which in the case of a large
temporary broadcast structure could be several months and weather dependent).
An extended code should make provision for retrospective compensation after access has been
gained, with provision for the parties to reach agreement first or failing that on some form of
mediation process, such as an appointment of an arbitrator by the President of the Royal
Institution of Chartered Surveyors.
10.5 We provisionally propose that code rights should be technology neutral.
Do consultees agree?
Consultation Paper, Part 3, paragraph 3.18.
Yes – before the Communications Act 2003 came onto the statute books, the predecessor
companies to Arqiva highlighted the anomaly that unlike the telecommunications operators such
as the mobile network operators, the broadcast networks did not benefit from Code Powers. We
pointed out that in a converging market this was anti-competitive and the validity of those
arguments is not only stronger, but point to the need for further amendments to the Code.
The use of Code Powers is currently linked to an operator’s network. This reflects the way in
which the first generation mobile licensees, now O2 and Vodafone, were only allowed to develop
the network infrastructure and had to wholesale access to third party providers who supplied the
public.
The second generation licences changed that with the new incumbents, now T- Mobile and
Orange being licensed to establish new networks, with services they could retail direct to the
public. O2 and Vodafone were granted this second right later and no distinction was made with
the third generation services, the new operator, now “3”, being given right of access to the O2
network for a limited period to help place them on a competitive level.
The mobile operators have now begun consolidating their networks, looking to compete on retail
price and the range and bundling of services offered to the public. Individual networks are no
longer necessary to drive competition in the market and indeed the costs of network deployment
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