The Electronic Communications Code was updated by government in 2017 to make it easier to install and maintain mobile infrastructure to improve mobile connectivity across the UK. On 10 October 2019, the Church of England announced that it has partnered with Cornerstone, the mobile infrastructure services company which owns and manages sites for Telefónica (O2) and Vodafone, to help deliver improved connectivity in areas currently suffering from poor mobile phone coverage. This post reviews the legislative issues involved.
Electronic Communications Code
The Law Commission explains: “the Electronic Communications Code was created in 1984 and replaced in the Digital Economy Act 2017. The Code sets out the regime that governs the rights of designated electronic communications operators to maintain infrastructure on public and private land”; the legal basis for the Code is Schedule 3a to the Communications Act 2003,
In our post, Mobile phone infrastructure in churches, we noted that at the end of 2018, the Archdeacons’ Forum posted information on the mobile phone infrastructure in relation to churches; this warned that the Electronic Communications Code 2017 contains wide-ranging reforms “in favour of mobile network operators”.
The Forum indicated that Parish Buying had established a standard framework contract with NET Coverage Solutions for parishes whose buildings may be considered for use in accommodating mobile network infrastructure. It stated that some parishes had already been approached by operators looking to negotiate new agreements at substantially reduced rents under the Code. With the new framework contact in place, the Forum strongly advised parishes to refer such approaches to NET Coverage Solutions Limited (CoE@netcs.eu), and to their DAC Secretary [ref.1].
The new standard framework contract is the result of a national tender process and offers the following benefits for parishes:
- Standardised terms and a consistent approach to obtain a fair price.
- Efficient project management through a trusted delivery partner with established process timelines for implementation.
- Compliance with the relevant legal requirements (including the requirements of ecclesiastical law).
CofE Partnership with Cornerstone
The CofE Press Release announced that Cornerstone had entered into an agreement with the Church of England under the recent Electronic Communications Code, to assist local churches who want to host facilities to improve local connectivity. The deal will deliver improved connectivity across rural communities and inner cities and provide much-needed coverage in hard to reach areas. The move follows an agreement with the Government last year encouraging the Church of England to use its buildings and other property to improve broadband, mobile and Wi-Fi connectivity for local communities.
The deal, which takes the form of a memorandum of understanding, will help deliver improved mobile connectivity by providing an efficient, predictable and fair process. Each installation will need the support of the church concerned. The MoU provides a framework to help both parties comply with relevant legal requirements including – crucially for churches – ecclesiastical law; it simplifies the process, for example by providing template agreements for parishes and providers, with a trusted contractor to manage the process.
The Press Release replicates the guidance provided by the Archdeacons’ Forum, supra: i.e. that further information can be found on the Parish Buying website with guidance on connectivity in churches here. Churches wishing to express an interest in hosting mobile telecoms infrastructure should contact the Church of England’s delivery partner, NET Coverage Solutions Ltd, at CoE@netcs.eu.
Consideration in the consistory courts
A petition to the appropriate consistory court is a fundamental component in the installation of any telecommunications equipment; the court considers the impact of the “hardware” on the church building, and provides a critical overview of the contractual arrangements. The Church’s web pages under the heading Connectivity include useful guidance on: Why get connected?; What solutions are available?; Legal considerations, and ; Grants and funding. The Parish Buying site provides links to the Network Covering Solutions pages which includes photographs of its installations on Cellular Sites within CofE Buildings and Flagpoles incorporating antennae.
At L&RUK, we have reviewed the consistory courts’ deliberations on a number of aspects associated with telecommunications [ref.2] and a future post will consider the implications of the development of the 5G network. Any church which is considering such an installation will find the judgment Re The Venerable Bede Wyther  ECC Lee 3 particularly instructive. The Chancellor, The Worshipful Mark Hill QC, observed: “… this case represents a perfect storm of ignorance, misinformation, inertia, non-engagement, and stubborn refusal to follow directions” . This is a judgment to be filed under “Don’t do it like this”.
However, much encouragement can be gained from the Chancellor’s concluding statement:
“. Petitions for a faculty for a licence to introduce telecommunications equipment are amongst the more straightforward matters dealt with by the consistory court. They can be granted swiftly and inexpensively. Rule 1.3 of the Faculty Jurisdiction Rules 2015 [ref.3] requires the parties to help the court further the overriding objective which includes co-operating with each other and with the court. The chancellor can be contacted via the registry 24 hours a day, 365 days a year, and can generally give a response on urgent matters within hours. Directions can be given within a day or two of any request. The court exists to help litigants and putative litigants and will offer guidance on request.”
. The Church of England guidance (in ChurchCare) highlights the differences between mobile and broadband infrastructure:
“. The main distinction between mobile and broadband infrastructure comes from the approach to the church. Mobile phone operators actively look for churches as strategic sites to improve their existing coverage so may approach a PCC, usually through an agent, with an offer of funds for siting their equipment on a church tower.
Broadband installations can be more proactively pursued by the PCC where improved connectivity is sought by the church itself or where the church approaches or is approached by a company or community group wishing to enable better local community access”.
. Wi-Fi in churches – health effects, courts’ jurisdiction and locus standi and Wi-Fi in churches – evidence, system security and commercial considerations. In addition, our annual indexes of consistory court judgments summarize relevant cases for 2018, 2017, 2016, and 2015. We have reviewed two cases in 2019, Re St Peter & St Paul Burton Pidsea  ECC Yor 4 and Re St Peter & St Paul Shorne  ECC Roc 4.
. A copy of the Faculty Jurisdiction Rules 2015 as amended, with effect from 1 September 2018, by the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, Schedule 3, Part 2 is here.
At L&RUK we do not give legal or technical advice, or purport to do so. This post reproduces information circulated in Archdeacons’ News Bulletin no. 39 December 2018 pages 6/7, and the Church of England Press Release Church of England to help boost digital connectivity for local communities, 9 October 2019. For specific queries, professional advice should be sought.