Access to Infrastructure Regulations – why does the call for evidence really matter?

Trenches Law News   •   August 28th, 2020

We’re delighted to be joined this month by our guest blogger Rob Leenderts, chairman of the Independent Networks Cooperate Association (INCA) and expert advisor to the Department for Digital, Culture, Media and Sport.

Here, he explores why the Government is reviewing the Access to Infrastructure Regulations, what this call for evidence signifies for the telecoms industry, and how we could expect the next steps to unfold…

Given the extent to which COVID-19 has dominated the media since the start of the year, it’s hard to imagine that the Government has had time to think about anything other than how best to fight the pandemic. Oh, and the UK’s Brexit transition period coming to an imminent end!

However, away from the mainstream headlines, the Department for Digital, Culture, Media and Sport (DCMS) has begun an open call for evidence ahead of a review of the Communications (Access to Infrastructure) Regulations.

Forming part of the Broadband Cost Reduction Directive, the regulations were first implemented back in 2016, with the aim of minimising the financial strains associated with deploying high-speed electronic communications networks.

The idea, in principle, was that the Regulations enabled telecoms operators to reuse passive infrastructure such as ducts, poles and masts. It was hoped, at the time, that this ‘sharing’ approach would accelerate the speed of network roll outs while improving the commercial returns for all involved. Studies in wider Europe certainly support this theory, and research from the National Infrastructure Commission estimates an £8bn cost saving on initial capital expenditure when the reuse model is leveraged during full fibre projects.

Of course – given the mounting dependency on the UK’s digital infrastructure during the recent crisis – an efficient delivery of gigabit-capable coverage is extremely pressing.

Yet, fast forward to 2020, and it is understood that there has been limited use of the ATI Regulations, to date. So now, the question is, why?

Is the core problem a lack of awareness? Or is the appetite to use existing telecoms and non-telecoms passive infrastructure non-existent? Is there a ‘gap’ in the procedural side of the Regulations? Are fundamental market requirements being overlooked entirely? Or has it merely been a matter of timing, and will interest in infrastructure sharing now peak due to the pace of network deployment required?

These areas, and more, underpin the seven key questions being asked of industry stakeholders at present. Organisations have been asked to submit their views by 5pm on 4 September, and then all eyes will be on Matt Warman MP – Minister for Digital Infrastructure – when he reveals what will happen next. So far, exact timescales remain unclear.

Hopefully unsurprisingly, INCA has prepared a response, so we too now await the outcome of the process. We felt it important to consolidate the views of operators of varying sizes – including those who may not have a dedicated internal resource to help contribute to such policy level discussions, as well as those who are so focused on building to combat the threat of Openreach overbuild.

There are a number of themes we anticipate may come out in next-step discussions, which include:

  • The sharing and visibility of infrastructure data (including planned works)
  • Current and possible future barriers to using the ATI Regulations
  • The potential impact of infrastructure being shared by operators with significant market power
  • The role that the Regulations will play in the more successful deployment of gigabit-capable networks in harder-to-reach areas in the UK
  • National security exceptions
  • What this means for the wholesale market

We will of course keep the industry updated, via our website, Twitter and LinkedIn page, when we know anything more. But this is a progressive industry which needs to keep moving. Can revised Regulations support this pace of change? Let’s see…

Sources:

https://www.gov.uk/government/publications/review-of-the-access-to-infrastructure-regulations-call-for-evidence

https://www.legislation.gov.uk/uksi/2016/700/made