Upper Tribunal finds that a Wholesale Infrastructure Provider did not hold Code rights

The Upper Tribunal has confirmed in On Tower UK Ltd -v- AP Wireless II (UK) Ltd [2026] UKUT 245 (LC) that a wholesale infrastructure provider (“WIP”) which supplied only passive infrastructure (e.g., telecoms masts) could not acquire code rights.

The Electronic Communications Code (“Code”) grants telecommunications operators various rights to install, upgrade, and maintain electronic communications apparatus (for example, 5G masts) over land. A WIP is not a telecommunications operator, but rather a provider of physical telecommunications infrastructure to operators. On Tower UK Ltd is one such WIP, providing masts to mobile network operators.

What happened in this case?

On Tower UK Ltd entered into an agreement with AP Wireless II (UK) Ltd on 27 September 2016 in relation to a site known as “Vulcan Arms”. AP Wireless II (UK) Ltd (“APW”) is a site aggregator, whose business model is to purchase land on which telecommunications masts will stand. On Tower argued that this agreement was a Code Agreement due to a direction given to it by Ofcom in 2005.

The contractual term of the Vulcan Arms agreement had now come to an end, and On Tower sought renewal of that agreement under Part 5 of the Code.

Why could the WIP not acquire Code rights?

The FTT decided that On Tower was not a party to a Code agreement and the Upper Tribunal agreed. The UT held that the provision of physical infrastructure alone was not one of the statutory purposes for which Code rights could be granted in 2016 (prior to the current Code coming into force). The Tribunal stated that an “electronic communications network” could be a transmission system or a transmission system together with the relevant physical infrastructure, but it could not be that infrastructure alone.

Since 28 December 2017, when the Code was updated, WIPs have been able to acquire Code rights. This decision in this case is therefore applicable to agreements entered into prior to that date. 

What does this mean going forward?

Solicitors and other practitioners advising WIPs or site aggregators on Code agreements pre-dating December 2017 should be careful to establish the specific rights (or lack thereof) which may be enjoyed by the WIP. This will depend specifically on what is being provided by the WIP, but where this amounts to only physical infrastructure, it may not enjoy the benefit of Code rights where the relevant agreement was entered into before 28 December 2017.