Upper Tribunal finds mast provider held no Code rights in On Tower v AP Wireless

The Upper Tribunal has held that a wholesale infrastructure provider's pre-2017 agreement over a Welsh mast site never conferred rights under the Electronic Communications Code, because the provision of passive infrastructure alone was not among the statutory purposes recognised by the legislation then in force. The decision of Upper Tribunal Judge Elizabeth Cooke in On Tower UK Ltd v AP Wireless II (UK) Ltd, released on 7 July 2026, carries implications well beyond the single site in dispute.

On Tower, a wholesale infrastructure provider, supplies masts to which mobile network operators attach their antennae, paying a favourable Code rent to site owners while charging its operator customers a market rate. AP Wireless, a site aggregator that is not itself a Code operator, is the counterparty at the site in question, at the Vulcan Arms near Llandrindod Wells. The agreement there was entered into in 2016, before the current Code took effect, and On Tower sought a new agreement under the Part 5 renewal machinery. AP Wireless contended that the original agreement was never a Code agreement, so there was nothing to renew.

The statutory purposes in 2016

The point turned on the 2003 iteration of the Code, under which the statutory purposes were the provision of an electronic communications network or a conduit system. On Tower held an Ofcom direction from 2005 for the provision of an electronic communications network, extended to infrastructure only in 2018. It was common ground on appeal that the First-tier Tribunal had erred in applying the current Code rather than its predecessor and in treating the 2005 direction as limited under section 106(5), so the first two grounds succeeded. The live question was the third: whether the provision of masts alone fell within the statutory purposes as they stood in 2016.

Judge Cooke held it did not. Section 32 of the Communications Act 2003 defines an electronic communications network as a transmission system together with such associated apparatus as is used with it. The two limbs are linked by "and", which is conjunctive rather than disjunctive, as confirmed by the draftsman's use of "or" and "either or both" elsewhere in the section. A transmission system with a mast qualifies; a mast, or any number of masts, standing alone does not, since unconnected masts are not a network. On that construction, Ofcom had been wrong to treat On Tower's estate of sites as an electronic communications network, both in 2005 and in its 2018 explanatory statement.

Rejecting the wider reading

The Law Commission's 2013 report, while not authoritative on the meaning of the earlier legislation, illuminated the mischief the current Code was designed to cure: the assumption of a bipartite relationship between landowner and operator that made no provision for wholesale providers. That reading aligned with the understanding of the industry, including On Tower's own predecessor as a consultee.

The tribunal also rejected the "always speaking" argument. Reading "and" as "or" would alter the structure of the provision rather than update the meaning of a term, and On Tower's business model had in any event pre-dated the 2003 Act, so no technological or commercial change could justify the shift. The consequences said to be absurd were the logical result of the policy, and the settled-practice principle could not assist where the wording was unambiguous and had never been judicially determined.

The appeal accordingly succeeded on the first two grounds but failed on the third. The First-tier Tribunal had reached the right answer for the wrong reason, and the Vulcan Arms agreement was not a Code agreement.