How telecoms have become critical to UK working

Posted: 02/06/2020

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COMMENT: Since the shadow of Covid-19 loomed large over the UK, we have all become acutely aware of the health of our internet connections. When faced with a choice between either calling a halt to work or taking it online during the lockdown, employers did what they could to get their workforce back to business from home. Unsurprisingly, the demand for connectivity surged, with BT estimating an increase in network traffic of up to 65% (reported by PwC in its report titled ‘Where next for telecoms?’). The ‘new normal’ is now team catch-ups by Zoom, Microsoft Teams calls with clients, online networking and the rest. The real estate sector has seen major change in a short period, with the rise of online auctions and e-working by the Land Registry among the most notable developments.

The Government quickly recognised the need to keep UK plc connected. From the beginning of the lockdown, telecommunications workers were included in the list of ‘critical workers’ released in late March. As such, telecommunications staff, including network operatives, field engineers and IT and data infrastructure staff, were permitted to continue to send their children to school, should they wish.

The position of telcos as key in the national effort against Covid-19 was further bolstered on 2 April 2020 when the Department for Digital, Culture, Media and Sport issued ‘Covid-19 guidance for telecommunications infrastructure deployment in England’. In the guidance, the Government noted:

‘Now, more than ever, the country is reliant on fixed-line and mobile communications networks. Telecommunications has therefore been included as one of the critical sectors in new government regulations and legislation in response to dealing with the Covid-19 outbreak.’

The guidance permitted an exception from the public health rules for the purposes of works to repair and maintain the telecommunications network by allowing more than two people to gather for these purposes (paragraph 1). Landowners were warned (paragraph 3) that ‘fully operational telecommunications infrastructure is needed to support mass homeworking and critical connectivity to emergency services and hospitals’. As such, it was ‘crucial’ that emergency access rights regarding property remained available, in due course referring telcos to the applicable safe-working guidance (published on 11 May and subsequently updated), including guidance to be followed where working in other people’s homes.

The guidance also highlights the importance of landowners respecting the rights conferred on operators in contractual agreements, with particular reference being made to contractual obligations to provide access to sites to inspect, maintain, adjust, repair or upgrade communications equipment.

The 5G conspiracy

However, at the same time, masts in both Birmingham and Liverpool were subject to criminal damage when set alight by conspiracy theorists who alleged a link between 5G and Covid-19. While the vast majority of the population would be unlikely to buy in to such claims, neither would they be keen to see telco operators access, for example, communal areas in residential blocks during lockdown.

This is particularly the case when the Government’s guidance on PPE is considered – the ‘Working safely during coronavirus (Covid-19)’ guidance, which relates to working in other people’s homes, does not require the use of PPE, save where it would ordinarily have been worn. The document states: ‘When managing the risk of Covid-19, additional PPE beyond what you usually wear is not beneficial. This is because Covid-19 is a different type of risk to the risks you normally face in a workplace, and needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE.’

Risk assessment

As such, RAMS (risk assessment method statements) produced by operators have never been more closely scrutinised. Since the vast majority of agreements for multi-skilled visits will require the operator to take reasonable steps to protect the health and safety of occupants and others on site, landowners dealing with access in the context of the new Electronic Communications Code will be reasonably well placed to ensure that suitable RAMS are in place and, to some extent, planned works by operators have continued during lockdown. However, issues might arise in relation to older agreements which do not include express wording, requiring an enhanced degree of cooperation between operators and landowners.

At the same time, operators will come under pressure to provide additional capacity, particularly in residential areas. This will undoubtedly involve securing new sites while maintaining network capacity. The costs of securing access seem bound to rise as landowners and operators navigate through the issues arising. This will be the case even where landowners act co-operatively, since they will be unable to ignore the risks to, and concerns of, third parties with rights over properties – landowners cannot be seen to be allowing access without carefully analysing the risks.

Change in the wind

It is too soon to see the Covid-19 effect on the activities of operators, but as the pace of change approaches break-neck speed in so many areas of society, it will not be long. Operators have spent the past two years riding the wave of progress heralded by the coming into force of the Electronic Communications Code in December 2017, pushing to go further as quickly as possible. Just at the point where it seemed that the application of the code might become slightly more balanced (following Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2019] UKUT 338 (LC); [2020] EGLR 2 and Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates [2019] EWCA Civ 1755; [2019] PLSCS 201 when operators didn’t get things entirely their own way) it seems that Covid-19 will further disrupt the evolution of the legal landscape for the code.

This article was published in Estates Gazette in June 2020.

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