Phone masts, freedoms and high finance: a tangled tale

There is often more than one side to a story. Our aim at West Country Bylines is to give a balanced account of issues while avoiding distortion through what is known as ‘false equivalence’. It is a disservice to readers, for example, to give equal weight to the views of medical experts and unqualified anti-vaxxers in relation to health.

In order to achieve a better balance we feel it necessary to provide an update to our story on phone masts – ‘The Unstoppable March of the Masts’ published on 3 April. A reader has written to us to say that we should have made clear that the ‘Protect and Connect’ campaign, which is challenging attempts to reduce the rental income paid for a phone mast, is backed financially by AP Wireless. The significance of this is that AP Wireless is a large company with a clear financial interest in changing this aspect of the new Electronic Communications Code (ECC).

According to our correspondent AP Wireless operates by paying a lump sum to landowners with a mast on their property in return for the income stream generated by the rent from the phone company. Reducing the level of rents paid in the future seriously damages this business model. Retrospectively reducing the level of rent to be paid in cases where landowners have sold their rights to it for a lump sum leaves AP Wireless with a potential loss and the landowner unaffected.

Some readers may be less inclined to sympathise with a large American finance company than the small farmers and organisations quoted by Protect and Connect. We have no reason to believe that those examples are not true, however, and retrospective changes to a contract seem wrong whether the recipient is large or small. We accept, though, that the information about the organisation’s sponsorship should have been made available to readers.

Our correspondent raised a further issue. He stated: “A major point of the Code is to enable access to land where previously a large estate or land holder could exert monopolistic powers and refuse access for equipment, to the detriment of community coverage”. This often forced masts to be erected in less than suitable locations. In effect the new powers to override the wishes of landowners in the last analysis are no different to the powers of compulsory purchase available, say, to a highway authority wanting to complete a new road. Readers can decide for themselves whether the right to good mobile reception should now be seen as equivalent to the right to have access to suitable roads – a public interest that should override private property rights.

The case for strengthening the ECC is being pursued by another campaigning organisation called ‘Speed up Britain’. Like Protect and Connect it is backed by a number of organisations that might be said to have a strong financial interest in the matter, though its website is a little more explicit about their backing. Interestingly both are chaired by former Labour members of parliament – Patricia Hewitt leads Speed up Britain while Anna Turley heads Protect and Connect.

Speed up Britain claims that the roll out of the mobile network “is being held back because the Code is not enabling access agreements for telecoms infrastructure upgrades as intended”.  According to Patricia Hewitt “it is imperative to remove any financial incentives for site providers or other third parties to delay renewal agreements, as this in turn delays upgrades to 4G and 5G technologies”. The ability to determine new rents more quickly is one of a number of targeted changes to legislation for which the organisation is pressing.

It explains “Site providers continue to receive old rents under the existing contract while a new Code agreement is in discussion. As old rents are typically higher than those secured under the Code, site providers or their agents are deliberately prolonging the renewal process. Speed Up Britain is calling for the Code to be amended so that new rents can be backdated, or so that interim rent can be agreed while negotiations are ongoing.”

Protect and Connect agrees that current legislation is leading to unnecessary delay, telling government “changes to the rights given to operators under the Code have stopped the market from working as it should and led to delays in digital rollout as well as eroding private property rights.”  They claim, however, that there is no evidence of the abuse of monopoly powers by landowners. Turley sees the solution as reviewing the valuation method to “ensure a fair deal for all sides” and strengthening the industry code of practice.

Those with more than a passing interest in a complex subject could do worse than consult the websites of the respective organisations. They make clear that this is an important matter and one where there is a serious clash of public and private interest. There is also an underlying issue of how the profits generated by investment in communications technology should be shared between landowners, the phone companies and the intermediary bodies that develop and maintain the infrastructure.

A good summary of the issues is contained in a Daily Telegraph article of 14 March 2021 available on the Protect and Connect website. Readers may also be interested in comments from the Law Society on how the Code might best be reformed. They conclude that the 2017 legislation “tilted the balance of rights too heavily in favour of operators to assist them in securing site facilities”.

There are powerful protagonists on both sides of this argument as evidenced by the sums invested in litigation. There can be different views on how the balance of public and private interest should be struck. There is also, however, clear evidence that weaker parties can be treated unfairly as our previous article highlighted.

For many small businesses, farmers, and community groups, taking on the likes of EE or Vodafone really is a case of David and Goliath.  That needs to change.