Communications Act 2003, Schedule 3A, paragraph 9

Who may confer code rights?

SCHEDULE 3A The electronic communications code

9 [F1399 (1)F1399] A code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator.

[F1400 (2) But in a case where an operator (“the first operator”) has the right to share the use of electronic communications apparatus with another operator (“the second operator”) under or by virtue of an agreement under this Part, sub-paragraph (1) does not prevent the agreement from providing for the first operator to permit the second operator to exercise, in connection with the sharing, a code right conferred on the first operator by the agreement. F1400]

Definitions used in Schedule 3A, paragraph 9 4

land

(8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Defined in Sch.4 para.5(8) · see it in the full Act
the operator

18 (1) This paragraph applies where, immediately before the abolition of licensing, a person holding a licence under section 7 of the 1984 Act (“the operator”) —

(a) is a person to whom the telecommunications code applies in respect of the running of a telecommunications system by him (“the operator’s system”); and

(b) in pursuance of a condition of his licence imposed for the purpose of securing that sufficient funds are available to meet code-related liabilities specified in the licence, is a party to any guarantee arrangements.

Defined in Sch.18 para.18(1) · see it in the full Act
electronic communications apparatus

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act

Cases considering Schedule 3A, paragraph 9 9

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022Interprets

An applicant operator is not treated as the occupier merely because its apparatus is installed under previously conferred rights. The operator and occupier contemplated by the paragraph are distinct persons, enabling the applicant to seek additional rights. (see paras [116]-[117]; [137]; [159])

Vodaphone Ltd v Potting Shed Bar and Gardens Ltd & Anor

[2023] EWCA Civ 825 · 14 July 2023Defines

Requires a code right to be conferred by agreement between the occupier of the land and the operator.

Cornerstone Telecommunications Infrastructure v Ashloch Ltd & Anor (Rev 2)

[2021] EWCA Civ 90 · 29 January 2021Interprets

A code right may be conferred only by an agreement between the occupier and operator. An operator cannot ordinarily confer a right on itself. (see paras [26]-[31], [58]-[61], [80])

What each judgment says about Schedule 3A, paragraph 9 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F1399Sch. 3A para. 9 renumbered as Sch. 3A para. 9(1) (7.2.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 57(4)(a), 79(2) (with s. 57(7)); S.I. 2023/109, reg. 2(a)
  2. F1400Sch. 3A para. 9(2) inserted (7.2.2023) by Product Security and Telecommunications Infrastructure 2022 (c. 46), ss. 57(4)(b), 79(2) (with s. 57(7)); S.I. 2023/109, reg. 2(a)