Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors (2011)
In an expedited trial the court construed aspects of various agreements between mobile phone network operators and the owners of sites on which telecommunications equipment was provided.
In an expedited trial the court construed aspects of various agreements between the claimants (X) and defendants (E and O), who were mobile phone network operators. E and O had arranged to install and operate their telecommunications networks by using antennae and other equipment at sites owned, leased, provided and/or managed by X. O held two spectrum licences under the Wireless Telegraphy Act 2006. E and O subsequently announced a joint venture to integrate their operations. Discussions were entered into with X as to the arrangements at X's sites that arose from the integration. The parties were unable to reach agreement as to the rights of E and O to introduce roaming under the existing agreements but they subsequently started the testing of a roaming facility. The spectrum licences were replaced by licences issued in March, 2011 by OFCOM in E's name. X issued proceedings and sought interlocutory injunctions and other relief against O and E. X contended that; (1) the purported transfer of the licences from O to E did not comply with the Wireless Telegraphy Act 2006 s.30 and the licence issued by OFCOM was void; (2) the roaming permitted by E to O, or by O to E, would breach the provisions of the various agreements they had with X.
1) What occurred in March, 2011 was a transfer of the relevant licence from O to a separate legal entity, E, which had not been made in accordance with s.30 and would be void. That was a preliminary view as something could exist to justify the decision taken by OFCOM to affect the transfer between the two legal entities. Accordingly, the issues had to be approached on the basis that E and not O had held the relevant licences since March, 2011, alternatively, on the basis that O was still the holder of those licences (see paras 70-72 of judgment). (2) The agreements should be construed as meaning that E was prevented from making use of the sites, facilities, equipment, licensed frequencies or licensed technology under any arrangement for the carriage of voice or data traffic. The arrangement under which O's customers were permitted to roam on E's network was an arrangement for the carriage of voice or data traffic using the licensed frequencies of E. That was the essence of the roaming arrangement. On the evidence there was a significant and material risk that O would decommission X's sites. Accordingly, to the extent O remained a licensed operator the agreements did not permit the use X's sites for roaming (paras 81-82 and 87). (3) Any breaches of the agreements related to the use and occupation of property and therefore affected property rights. The dispute essentially concerned the terms and conditions upon which X would grant rights to E and O in circumstances where X was in the business to provide services to providers of mobile communications services. (4) Submissions were invited as to the appropriate form of relief (para.225).
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27 May 2011
Queen's Bench Division
LTL 7/6/2011 :  EWHC 1411 (TCC)