Background
On Tower UK Limited (formerly Arqiva Services Limited) is a wholesale infrastructure provider operating masts used by mobile network operators. On 27 September 2016, it entered into an agreement with a landowner at the Vulcan Arms, Llandrindod Wells, Wales. At that time, On Tower held an Ofcom direction under section 106 of the Communications Act 2003 applying the Electronic Communications Code for providing an “electronic communications network,” but not expressly for providing “conduits” (later reframed as “infrastructure systems” in the 2017 Code reforms). When the agreement term expired in November 2023, On Tower sought renewal as a Code agreement under Part 5 of the Code, which provides security of tenure. The First-tier Tribunal rejected this, holding that the provision of mast infrastructure required a separate conduits direction that On Tower lacked in 2016.
The statutory issue turned on whether a wholesale infrastructure provider’s provision of passive mast networks fell within the scope of “electronic communications network” as defined in the 2003 Act and whether such provision qualified as one of the “statutory purposes” for which Code rights could be conferred. AP Wireless II (UK) Limited, a site aggregator and party to the original agreement, argued that only an operator with an express conduits direction could hold Code rights for infrastructure provision.
The Court’s Holding
Upper Tribunal Judge Elizabeth Cooke allowed On Tower’s appeal and held that the 2016 agreement was a Code agreement. The court concluded that “electronic communications network” as defined in section 32 of the 2003 Act was sufficiently broad to encompass the provision by a WIP of a network of sites with passive mast infrastructure for use by mobile network operators. The court rejected the narrow construction requiring a separate conduits direction, holding instead that the statutory definition of electronic communications network explicitly includes “apparatus . . . used in association with” transmission systems, which encompasses masts.
The court emphasized that Ofcom itself had interpreted the term broadly when granting On Tower its original 2005 direction, explicitly recognizing its role as a provider of passive infrastructure supporting multiple mobile network operators. A purposive interpretation, considering technological developments in the industry and the legislature’s apparent intention to support infrastructure sharing and competition, supported this broader reading. The court noted that the 2017 reforms—introducing “infrastructure system” as a distinct term—represented modernization and clarification rather than substantive change, and that Parliament could not have intended to exclude the critical role of WIPs from Code protection.
Key Takeaways
- Wholesale infrastructure providers’ provision of passive mast infrastructure has qualified for Code protection under the 2003 Act, not merely since 2017 reforms
- “Electronic communications network” must be interpreted to include infrastructure providers’ networks, not only active transmission networks of telecommunications operators
- Statutory interpretation of the Code requires a purposive approach aligned with industry practice and Ofcom’s own regulatory understanding at the time
- Retroactive invalidation of long-standing commercial arrangements based on narrow textual reinterpretation would be inconsistent with the Code’s purpose of providing security of tenure
Why It Matters
This decision provides essential certainty for the UK telecommunications sector. Mast-sharing by wholesale infrastructure providers reduces both barriers to competition and unnecessary infrastructure duplication, benefiting mobile operators and consumers. The ruling prevents retroactive disruption of arrangements fundamental to industry structure, protecting thousands of sites nationwide where WIPs have operated under Code agreements for over a decade. For landowners and site providers, it confirms that long-standing arrangements with WIPs remain legally sound despite statutory terminology changes.
The judgment also demonstrates how appellate courts apply purposive statutory interpretation to align legislation with technological evolution and commercial reality in fast-moving sectors. By focusing on Parliament’s apparent intention rather than narrow lexical readings, the court preserved legal certainty and prevented the creation of a retro-active “regulatory cliff” where previously compliant arrangements would suddenly become vulnerable. The decision reinforces that evolving statutory language reflects clarification of pre-existing legal regimes rather than substantive narrowing of rights.