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Government review of the Access To Infrastructure Regulation CFE 12 Jun 20

The Government has launched a Call For Evidence (CFE) in relation to the Access To Infrastructure (ATI) Regulation.

Introduction

Did you realise you already had the right to access passive physical infrastucture operated by others: telecoms, energy, water, roads - anything? If there's a trench, duct building or mast you could use, you have the right to ask for access on fair and reasonable terms and get a response within 2 months. And you have the same obligation to respond to requests to use your passive infrastructure. There are some caveats - national security, for example and also if your network offers a suitable active wholesale product.

This regulation has been in place since 2016 but is not used as much as the Government hoped. Hence they are now consulting on how to get it more widely used and have issed a Call For Evidence (CFE). INCA is currently working on a formal response to this which is required by 4 Sep 20

Briefing

The ATI (implemented in the UK in July 2016, based on the 2014 EC Broadband Cost Reduction Directive) mandates access to passive physical infrastructure that can be used for building new telecoms networks, on fair and reasonable terms to telecoms network operators.

The infrastructure covered by the ATI includes telecoms infrastructure, as well as infrastructure operated by non-telecoms providers including energy, water, roads, rail. Meaning that a telecoms operator building new networks can request access to any of these types of infrastructure on fair and reasonable terms.

The ATI only covers passive infrastructure such as trenches, ducts, buildings, masts, etc. It specifically does not cover cables (fibre or copper).

The Government is concerned that the ATI has not been used as much in the UK as was hoped. With the drive to accelerate fibre deployment across the UK, the Government is now therefore reviewing how the Broadband Cost Reduction Directive was transposed in the UK, to see if changes could be made to improve its efficiency.

The ATI differs from the regulations imposed by Ofcom on operators that have significant market power (SMP) – BT and KCOM – in a number of significant ways:

  • that there are no specific ‘access products’ defined, nor is the pricing for access specified. The ATI simply states that access should be provided on ‘fair and reasonable terms’.
  • The obligation to provide access is subject to a number of exceptions, including national security, whether the infrastructure operator needs the infrastructure itself for its business plans, and whether the infrastructure operator offers an alternative wholesale product.

Important for Network Builders, Owners and Operators

INCA members that build new telecoms networks have the right to request access to the passive infrastructure from all other telecoms network operators and non-telecoms infrastructure operators, but they also have an obligation to provide such access to their own networks (subject to exceptions as mentioned above).

What is the Government doing about this?

The Government is consulting on whether, amongst other points, it would be useful if the ATI set out more guidance in relation to what ‘fair and reasonable terms’ means, what approach to pricing would be acceptable, whether more clarity should be added in terms of how to request access, and several other critical aspects of the Regulation. Responses must be made by 4 Sep 20.

INCA members need to consider this carefully as it presents both opportunities and threats. A clearer and easier to use ATI could be very helpful for INCA members (who may not previously have been aware of the ATI), but it also represents real threats that third parties could request access to recently built networks.

The ATI CFE can be found here: https://www.gov.uk/government/publications/review-of-the-access-to-infrastructure-regulations-call-for-evidence.

How you can get involved.

INCA will produce a response and encourage individual members to participate actively in the development of that response and also to submit individual responses. The issues addressed are very complex and could be of critical importance to builders of new telecoms networks.

If you have an opinion or evidence you would like to be taken into account, you can:

  1. make your own response via gov.uk here.
  2. access the Policy & Regulatory SIG if you are a Tier 1 INCA Member
  3. access the Policy & Regulatory Service if you are an INCA Member on any Tier.

The deadline is 4 Sep 20 so please respond in a timely fashion to ensure your voice is heard. If you would like to know more, please either visit the links given or use our Contact page.