Policy paper

Review of the Access to Infrastructure Regulations - call for evidence

Updated 24 November 2021

Matt Warman MP - Minister for Digital Infrastructure

Ministerial foreword

At a time of national crisis, telecommunications has provided a lifeline for people across the UK. Our digital infrastructure has allowed millions to continue to work, access education and keep in contact with their loved ones.

It is clear, now more than ever, that digital connectivity is vital to our communities, business and essential public services, and will only become more important in future. We need to ensure that the UK has world class digital infrastructure to support this.

This government is committed to delivering nationwide gigabit-capable coverage so that we can improve the speed, resilience and reliability of broadband for consumers and businesses across the UK. It is key to the UK remaining globally competitive. It is also critical to the effective deployment of 5G mobile networks, which will deliver faster and better mobile broadband and enable new innovations in industry sectors like manufacturing, health and transport.

The government is committed to working with the sector to drive greater investment in telecoms networks that are fit for the future. We have seen significant progress with full fibre deployment in the past year, with coverage now reaching 12% of the UK, or 3.5 million premises, according to the latest Ofcom figures. However, although more than 96% of UK premises already have access to superfast broadband, providing download speeds of at least 24 Mbps, we know there is still much further to go to achieve our challenging ambition for nationwide gigabit coverage.

We are keen to explore how we can further reduce deployment costs and barriers, including by improving access to the UK’s passive infrastructure such as the networks of ducts, cabinets, poles and masts that deliver our utilities services across the country. Sharing the existing infrastructure of other telecoms and utilities has the potential to increase the speed and lower the cost of improving both fixed and mobile networks dramatically. As a result, we are reviewing the Communications (Access to Infrastructure) Regulations 2016 (the ATI Regulations), which include provisions for the sharing of physical infrastructure across the UK to deploy telecoms networks. We also welcome voluntary moves by infrastructure owners to open up access to their passive infrastructure for the deployment of next generation digital infrastructure.

This document is the first stage in our review. Government is keen to hear views and ideas, in particular from the telecoms and utilities industries, on how these regulations are working in practice and on ways to improve infrastructure sharing in the UK. I encourage interested parties to respond to this call for evidence, in order to better help us deliver the connectivity we need for the whole of the UK.

Matt Warman MP - Minister for Digital Infrastructure

1. Executive summary

In this section

1.1 Reviewing the Access to Infrastructure Regulations

The government wants to make it easier for telecoms operators to reuse existing passive infrastructure - e.g. ducts, poles or masts^{[footnote 1]} - to deploy new telecoms networks. To do this, we need to improve the market for passive infrastructure sharing by ensuring there are fewer barriers to use, and that the correct incentives exist at all layers. Sharing infrastructure can significantly reduce the time and cost it takes to roll out new broadband networks and improve the commercial returns for both the asset owner and the renter.

As such, we are keen to explore ways in which the Access to Infrastructure Regulations could be improved to promote such infrastructure sharing.

1.2 Background to the Review

The Communications (Access to Infrastructure) Regulations 2016 (“the ATI Regulations”) implemented in the UK certain of the requirements in Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks (the Broadband Cost Reduction Directive). The review will assess if there are improvements that could be made to the regulations to further boost investment in infrastructure, and encourage the use of infrastructure sharing to deploy telecoms networks. Our understanding is that to date, there has been limited use of these regulations.

1.3 Call for evidence

Given the government’s aims to improve digital connectivity in the UK, and the potential benefits of sharing infrastructure, we are keen to understand the reasons why network providers in the UK appear not to be making more use of the ATI Regulations. We are also keen to understand the appetite among telecoms network operators for increased use of existing telecoms and non-telecoms passive infrastructure and what changes could be made to those regulations to encourage this.

In particular, we are interested in the views of potential access seekers^{[footnote 2]}, potential access providers^{[footnote 3]}, telecoms operators and other interested stakeholders on whether:

• the regulations address a market need
• there are procedural aspects that need improvement
• there are any other improvements that can be made to encourage the use of the regulations.

We encourage all interested parties to submit ideas on the issues above, and to provide evidence and data to support their views. In addition, DCMS will work with key stakeholders as part of an open process of engagement to support the call for evidence. We will use responses to this call for evidence to inform our thinking on next steps.

This call for evidence will run for 12 weeks, ending on 4 September 2020.

2. Questions

1. Have you previously used the ATI Regulations, have you previously attempted to use them, or are you planning on utilising them, to deploy high speed broadband networks?

2. What type of infrastructure would you want to access using the ATI Regulations (e.g. other telecoms infrastructure, electricity infrastructure, sewers etc)? What are the difficulties of using these types of infrastructure to deploy broadband?

3. How effective are the current ATI Regulations at encouraging infrastructure sharing to deploy gigabit capable networks, including sharing: a) other telecoms infrastructure and b) non-telecoms infrastructure?

4. Are there current legislative barriers to using the ATI regulations, and if so what are these? In particular, we would welcome comments relating to:
   
   – the scope of the regulations
   – whether any clarifications need to be made to the regulations
   – the value of standardised cost structures and standardised formats for information requests and responses
   – the value of a single information point or central data portal
   – any potential changes that could be made to existing wayleaves and land rights regimes to make the regulations work effectively
   – the effectiveness of Ofcom’s powers to enforce the regulations

5. Are there current regulatory barriers to using the ATI regulations? If so, what are these and what improvements could be made?

6. Are there any other non-legislative and regulatory barriers to infrastructure sharing?

7. Do you have any other suggestions for the government, regulators or industry on what can be done to improve infrastructure sharing or the transparency of infrastructure data?

How to respond

Submissions of evidence should be emailed to:

grace.shaw@dcms.gov.uk by 5pm on 4 September 2020.

Evidence will be reviewed thereafter by DCMS. We may publish any submissions made; if you believe there is a reason why your submission or any part of your submission should be considered confidential, please provide details.

This commission is subject to legal duties which may require the release of information under the Freedom of Information Act 2000 or any other applicable legislation or codes of practice governing access to information.

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3. Background - passive infrastructure and broadband deployment

In this section

3.1 The potential of infrastructure sharing

Previous studies have suggested that using passive infrastructure, the parts of a network that host other network elements, to deploy broadband connections can drastically reduce costs for network builders. Studies in supporting the impact assessment for the European Broadband Cost Reduction Directive found that civil engineering works represent up to 80% of the cost of deploying high-speed broadband networks. Research from the National Infrastructure Commission suggests an £8bn cost saving on initial capital expenditure of full fibre through infrastructure re-use.

In addition, countries where infrastructure sharing is more common have seen higher coverage of full fibre networks. In France and Portugal, where the use of utility poles and ducts to support telecom deployment in rural areas is particularly well-developed, full fibre coverage as of 2018 was 38% and 70% respectively.

Despite the potential cost savings from using passive infrastructure to deploy gigabit networks, our understanding is that the ATI Regulations have not been widely used in the UK to date. However, in light of the rapid increase in the scale of network deployment needed to meet the government’s ambitions for nationwide full fibre and gigabit connectivity, there is a renewed interest from government, regulators and industry in infrastructure sharing.

For example, the 2018 National Infrastructure Assessment (NIA) recommended increased use of infrastructure sharing to push full fibre rollout further. This covered access to Openreach’s ducts and poles, and the possibility of sharing other existing infrastructure, such as electricity poles.^{[footnote 4]} These recommendations were reflected in the Future Telecoms Infrastructure Review, which set out that promoting passive infrastructure reuse was key to encouraging new entrants into the telecoms market. Ofcom has also recently imposed an improved duct and pole access remedy on Openreach, which is increasingly being used by those looking to deploy gigabit capable networks. However, regulated access to Openreach’s passive infrastructure could usefully be supplemented by access to other telecoms companies’ infrastructure. Virgin Media, for example, has a significant passive infrastructure network.

The government is also looking at the potential benefits of infrastructure sharing for other sectors, for instance through the Energy Data Taskforce, which was set up by the government and Ofgem in October 2018 to investigate how the use of data could be transformed across the energy system. In June 2019 the Taskforce made a series of recommendations, including for the establishment of a unified Digital System Map to increase visibility of energy system infrastructure and assets, enable optimisation of investment and inform the creation of new markets.

3.2 Government work to encourage infrastructure data sharing

The government is taking action on improving visibility of data on availability and location of infrastructure and planned works. In July 2020, the Department for Transport (DfT) will launch the new Street Manager digital service. This will provide up-to-date, accurate information regarding the location, timing and the works promoter^{[footnote 5]}. Whilst this may lead to increased infrastructure sharing, Street Manager will not provide a retrospective audit of existing ground-based assets, only a log of what street works are taking place, and where.

However, the government is also looking at how to improve information sharing on where underground assets are located. The Geospatial Commission is working to develop a national underground assets register (NUAR) covering telecoms, electricity, gas and water networks. The Commission is running pilots in London and the North East on creating a data sharing platform for asset owners and operators.

While the aim of this project is to improve the safety of streetworks and reduce the rate of accidental damage, it is also looking at answering some of the wider challenges of infrastructure data sharing, including creating a data-sharing framework and harmonised cross-sector data model for all utilities, including telecoms. Such data sharing and infrastructure mapping could be used in future to help network builders plan broadband deployment routes.

3.3 Access to telecoms infrastructure

Significant market power regulations and access to Openreach’s passive infrastructure

Ofcom has powers under the Communications Act 2003 to impose access conditions on electronic communications networks, as well as powers to impose specific access conditions where it finds a provider has significant market power (SMP), known as SMP conditions.

The most common form of infrastructure sharing used to deploy telecoms networks in the UK is regulated access to Openreach’s passive infrastructure network. At regular intervals, Ofcom conducts reviews of telecoms markets to determine how competitive they are. If it finds that an operator has SMP in one of these markets, it can impose SMP obligations or conditions on that specific operator to address this. There are two providers in the UK with SMP, Openreach and KCOM. Openreach has a near ubiquitous network across the UK excluding the Hull area, where KCOM has SMP.

In its Physical Infrastructure Market Review (“PIMR”), which concluded in June 2019, Ofcom found that Openreach has SMP in the physical infrastructure market across the UK^{[footnote 6]}. To remedy this, Ofcom imposed a requirement on Openreach to offer an unrestricted duct and pole access product on regulated terms and at a regulated price.^{[footnote 7]} This product enables other operators to use Openreach’s infrastructure to deploy their own networks.

Unlike SMP regulations, the ATI Regulations apply to all operators of passive infrastructure. In the PIMR, Ofcom considered whether the ATI Regulations were an effective substitute for SMP regulations. However, Ofcom concluded that access to non-Openreach and non-telecoms infrastructure was not an effective constraint on BT’s market power, although it acknowledged that the ATI Regulations could support their policy objectives of promoting competition and incentivising investment in full fibre. Ofcom highlighted several disadvantages of using other utility infrastructure instead of telecoms specific infrastructure, mostly referencing the difficulty of access and difference in design to telecoms networks.

Indeed, respondents to the government’s November 2015 consultation on implementing the Broadband Cost Reduction Directive, which led to the ATI Regulations, suggested that large amounts of the sewer and gas network are unsuitable for building communications networks. Ofcom also investigated the possibility of deploying full fibre networks across combinations of different non-telecoms infrastructure. However, combining multiple infrastructure may require the duplication of engineering efforts and maintenance costs, and can create greater uncertainty for investors. As such, Ofcom considered that ubiquitous telecoms infrastructure was likely to be the preferred option for communications providers seeking to lay full fibre networks.^{[footnote 8]}

However, as ambitions for gigabit capable deployment increase, interest in access to non-BT physical infrastructure is growing. As network providers increasingly look to roll out to more remote areas of the UK, cutting costs through sharing infrastructure with other utilities or other telecoms networks may become more attractive. Even those providers with the most ubiquitous networks, such as Openreach, could stand to benefit from sharing infrastructure to deploy broadband in areas where their current passive infrastructure networks do not reach or are not in good condition.

Access to other telecoms infrastructure

Although Openreach has the largest telecoms network in the UK, it is not the only provider whose network is present across large sections of the country. Virgin Media’s existing network currently covers around half of UK premises, and it is deploying new full fibre connections to extend its network. While Virgin is not currently subject to SMP regulations, it is subject to the ATI Regulations, and other telecoms network builders can use the ATI Regulations to seek access to Virgin Media’s passive infrastructure.

The ATI Regulations can also help operators access ‘micro-monopolies’, where network builders focus on one area of the country, or on particular types of premises, for instance multi-dwelling units or new build developments. These kind of network providers may have a monopoly in certain cities, similar to KCOM’s network in Hull, or could be the only infrastructure to a block of flats or new housing estate. The ATI Regulations can be used to access these networks and to promote infrastructure investment and competition.

In particular, access to Virgin Media’s network or other networks could be important in areas where Openreach’s network does not reach or where its passive infrastructure is in too poor a condition to be used. In addition, much of this network has been built more recently than Openreach’s infrastructure, so deployment using this infrastructure could be easier. We encourage network providers and infrastructure owners to open-up access to their passive infrastructure. It remains open to telecoms operators, under the ATI Regulations, to make commercial arrangements to grant access to their passive infrastructure and publish reference offers, publicly available documents that would set out the terms under which access would be granted to their networks. The government strongly encourages all telecoms operators to do so. The government also wants to explore how the ATI Regulations could be amended to improve access to Virgin Media’s and other providers’ telecoms networks.

Access to utilities infrastructure

Although limited, there are some instances of infrastructure sharing in the UK to rollout fibre connections. Zayo, following its acquisition of Geo Networks Ltd in 2014, has an extensive fibre network in London sewers and, in 2017, TrueSpeed signed a pole sharing agreement with Western Power Distribution, allowing them to use WPD’s electricity network to deploy full fibre. More recently, SSE are undertaking a trial with Thames Water to lay fibre cables in sewers for mobile backhaul^{[footnote 9]}.

Evidence indicates that infrastructure sharing is more commonly practised in European Union countries than in the UK. For instance, in Ireland, SIRO - a joint venture between the electricity utility, Electricity Supply Board and Vodafone - provided full fibre connections to 175,000 premises by August 2018 out of a planned 500,000 premises, using medium and low voltage electricity infrastructure.

In Italy, Open Fibre provided full fibre coverage to 2.4 million premises by the end of 2017, using the electricity infrastructure of Enel. Open Fiber claims the re-use of utility infrastructure allowed it to save costs of up to 50% in the initial phase of deploying full fibre.^{[footnote 10]}

A key consideration for infrastructure sharing across telecoms and utilities would be how such arrangements are effectively regulated. Ofcom and other regulators are interested in how to encourage greater use of the ATI Regulations and sharing data on and use of infrastructure. For example, in September 2019 the UK Regulators Network (UKRN) published a report into the extent of infrastructure data sharing across the transport, water, energy and telecoms sectors, including the role of regulators in encouraging this.

The report identified a number of key barriers to sharing data on infrastructure, including concerns over the misuse of confidential data, liability and data quality, as well as the lack of common data standards and a user-friendly central portal. Differences in organisational cultures was also identified as a factor that could inhibit data sharing. As a result, the UKRN made the following recommendations to improve infrastructure data sharing:

• Regulators should provide guidance around what data can be shared.
• Regulators should produce best practice guidelines around sharing data.
• Industry should work collaboratively, with support from regulators, to agree common data standards, definitions and a shared framework.
• The government and/or regulators should explore the creation of a central data portal that holds the ‘what, where and who’ for each asset in each sector.

We would be interested in hearing views from respondents on the UKRN’s recommendations.

In addition, as with telecoms operators, the government would encourage all utilities operators to open up access to their passive infrastructure, including through publishing reference offers setting out the terms of access.

UKRN has also in the last year carried out some work, with input from its members and industry representatives, to explore the potential benefits of coordinating infrastructure investment and deployment across sectors, as well as barriers and potential remedies for these. This work has been shared with relevant government departments, including with DCMS.

4. The ATI Regulations

In this section

4.1 Provisions of the ATI Regulations

The ATI Regulations implemented in the UK certain of the requirements in the Broadband Cost Reduction Directive. The aim of the Directive is to reduce the cost of deploying high-speed electronic communications networks, defined as those capable of delivering access to broadband services at speeds of at least 30 Mbps.

The ATI Regulations enable sharing of information about access to physical infrastructure (e.g. ducts and poles) across utility, transport and communications sectors, including the exchange of information about existing infrastructure, and the right to access that infrastructure on fair and reasonable terms and conditions. Specifically, the provisions of the ATI Regulations apply to the following types of infrastructure:

• electronic communications
• gas
• electricity, including public lighting
• heating
• water, including disposal or treatment of waste water and sewage, and drain system^{[footnote 11]}
• transport including railways, roads, ports and airports.

Under the ATI Regulations, a network provider can request information about another operator’s physical infrastructure and can submit requests to undertake a survey of that infrastructure. Network operators are also required to give access to their physical infrastructure, including access to in-building physical infrastructure, on fair and reasonable terms and conditions. Further, the ATI Regulations require enhanced transparency of civil engineering works and reasonable coordination of works which use public funds.

There are a number of grounds upon which a network operator can refuse requests under the ATI Regulations. For instance, requests can be refused if:

• they are likely to be prejudicial to national security or to put the security or integrity of a network, or public safety or health at risk
• they are not reasonable or are technically unsuitable
• there is not sufficient space, also taking account of the host operator’s future needs
• granting them would breach confidentiality to a third party, or where a telecoms network would seriously interfere with the provision of other services.

Requests to coordinate civil works can also be refused if they have not been made early enough, and if they would impede the infrastructure operator’s control over its works or give rise to additional costs.

If disputes arise they can be referred to Ofcom. Ofcom’s powers include the ability to fix the terms of transactions and impose rights and obligations on the parties to a dispute. The regulations require Ofcom to make a decision about disputes relating to access to physical infrastructure within four months, and to issue a decision on any other dispute within two months. However this is purely a dispute resolution regime. Ofcom does not, for example, have any powers to impose financial penalties under the ATI Regulations. Ofcom’s decisions can be appealed to the Competition Appeals Tribunal. To date, Ofcom has not received any formal dispute cases under the ATI Regulations.

4.2 Background to the ATI Regulations - the Broadband Cost Reduction Directive

The UK transposed the minimum requirements of the Broadband Cost Reduction Directive^{[footnote 12]}, while other countries adopted different approaches. The table below shows examples of EU countries going beyond minimum requirements of the Directive.^{[footnote 13]}

4.3 Transposition of the Directive in other countries

Provision	Countries	UK Position
Reciprocal rights allowing non-telecommunication infrastructure to be installed on the electronic communications infrastructure.	Bulgaria, Cyprus, Denmark, Estonia, Germany, Finland, Luxembourg, Slovenia, Spain	In line with the government’s minimum harmonisation approach, the ATI Regulations only explicitly allow for communications providers to request access to other existing infrastructure and do not include reciprocal provisions for other utility providers to use telecoms infrastructure. Reciprocal sharing arrangements can still be made outside the ATI regulatory requirements.
Rules on apportioning the cost of coordinating civil works	Austria, Portugal, France	Most respondents to the government’s consultation agreed that the government should not set out rules. Instead, parties are free to negotiate terms on a fair and reasonable basis. However, this could lead to uncertainty around costs.
Introduction of a Single Information Point (SIP) to make available the minimum information required under the Directive on current or planned civil works[footnote 14], with an option to hold information on existing physical infrastructure and handle requests for information about accessing this infrastructure.	Austria, Bulgaria, Cyprus, Czech Republic, Greece, Finland, Lithuania, Poland, Portugal, Slovakia	The UK government considered that planning decision making bodies in the UK already carried out the required functions of a SIP with regard to planned civil works. The government also considered that establishing a SIP to hold information on existing physical infrastructure would go beyond the minimum requirements of the Directive.
Electronic submission of all permit applications via the SIP.	Bulgaria, Cyprus, Denmark, Estonia, Latvia, Lithuania, Luxembourg, Malta	The UK government chose not to implement a SIP, and considered that it would go beyond the minimum requirements of the Directive.
‘Broadband-ready’ labels for buildings equipped with accessible high-speed in-building physical infrastructure[footnote 15]	Portugal, Italy, France introduced ‘fibre zone’ labels, although these designated areas rather than specific buildings.	In line with the government’s minimum harmonisation approach, this was not implemented by the ATI Regulations.

5. Potential barriers to using the ATI Regulations

In this section

Our initial evidence gathering process has uncovered some key potential barriers to using the ATI Regulations to access other telecoms and utilities infrastructure.

We would be interested in hearing from respondents on whether they agree that these are the key barriers to using the ATI Regulations. We would also be interested in hearing about any more barriers that respondents have experienced or perceive with the current regulations. Along with identifying barriers to the use of the ATI Regulations, we are also interested in comments on how they could be better utilised, amended, reduced or removed.

The potential barriers we have identified are:

5.1 Perceived lack of clarity

In particular, there might be perceived to be a lack of clarity in the regulations relating to:

• level of information required for requests. The government opted for an approach which maximises compatibility with existing systems. However this leaves uncertainty as to what information should reasonably be provided where that information is not readily available to the infrastructure owner;
• timings for responding to requests. There are a number of scenarios where deadline extensions are allowed, particularly where information is not readily available to the infrastructure owner. The government expects Ofcom, in its role as dispute resolution body, to be reasonable in considering what an appropriate extension would be, but uncertainty remains for access seekers around how long they may need to wait for a response to a request;
• no standardised formats. The regulations do not specify what format requests for information or responses should be made in. This could increase the burden on the access seeker to synthesise information they receive before they can establish what infrastructure is available.
• possible exemptions. Due to the range of possible exemptions, there may be a lack of certainty around use of the regulations and therefore a reluctance to use them by communications providers. If much of the utility infrastructure is either exempt or unsuitable, this would be a major barrier to deployment under the regulations.

5.2 Lack of single information point

The ATI Regulations do not specify a central coordination or single information point to help increase transparency and streamline the process. This may have led to an uneven application of the regulations, resulting in different information formats. Establishing a central body to coordinate and hold information could also help to reduce the resource burden on the access seeker in requesting and processing information. Nevertheless, setting up a centralised body would involve administrative costs and a SIP, or any other solution to improve transparency, would also have to take account of security and competition concerns.

5.3 Possibility of confusion over the type of infrastructure in scope

There could be increased clarity about what downstream uses of networks deployed over shared infrastructure are permitted. For instance, there could be greater clarity as to whether fixed wireless or mobile backhaul networks are covered by the term ‘high speed electronic communications network’ alongside fixed broadband networks.

5.4 Land rights and access

A major barrier to the re-use of infrastructure are provisions within agreements reached between the utility and landowner regulating the access by the former onto the latter’s land, in order to install infrastructure. These agreements (sometimes known as wayleaves) are contracts, which as a general rule cannot be amended without the agreement of both parties. The original agreement between the utility and landowner may contain specific restrictions with regards to sharing, preventing necessary upgrades or alterations required to enable sharing, or limiting the use of installed apparatus for specific purposes. This makes it necessary for the digital infrastructure provider to enter into their own agreement with the landowner - even in scenarios where there is no visual impact or burden on the landowner, e.g. in circumstances where the works relate to an underground duct.

For the operator, the need to enter into an agreement is burdensome, time-consuming and expensive. Government has already taken action to address this, introducing automatic limited rights for operators to upgrade and share their apparatus. However, these rights only apply to agreements reached after December 2017, when the relevant legislative reforms came into effect.

For agreements reached prior to this period, the additional hurdle of having to obtain a new or revised agreement with a landowner - which may often include substantial additional payments - can deter operators from using existing infrastructure.

5.5 No standardised costs

There are no standard charging structures set out in the regulations either for access to the infrastructure or for information on the infrastructure. The regulations require that charges for providing access to information must be fair and reasonable, with Ofcom arbitrating in the case of a dispute. However, in both areas the charging structures are vague and possibly subject to exploitation, particularly due to a lack of guidance on what is a reasonable cost.

A particular barrier to accessing non-Openreach telecoms infrastructure is that the regulations allow the possibility that any price could include compensation for lost business, which would undermine competitors’ incentives to access existing networks. We would be interested in exploring whether an amendment to the ATI Regulations to improve clarity over how costs should be calculated, and what should and should not be taken into account in doing so, could make the regulations more effective at promoting competition and infrastructure sharing.

5.6 Dispute processes

Current dispute resolution processes set out in the ATI Regulations are lengthy, with the potential that disputes could take a number of months to resolve. There are also limits to Ofcom’s enforcement powers under the ATI Regulations. It cannot, for instance, impose financial penalties. In addition, there is uncertainty around the role of other regulators in dispute resolution. Ofcom is required to involve relevant sectoral regulators ‘where appropriate. However it is not clear from the regulations where this would be the case.

5.7 Reluctance of utilities to allow access due to safety concerns

There may be a lack of confidence in telecoms networks meeting the safety and security standards of utilities. In particular, telecoms engineers may not be qualified to work on water or energy infrastructure. There might also be a perceived lack of clarity around who would be liable for accidental damage to other networks. As a result, there might arguably be a lack of incentive for non-telecoms infrastructure operators to allow access to networks due to high risks and low profit incentives.

5.8 Lack of interest in using the ATI Regulations due to other alternatives

It may be that telecoms providers’ lack of interest in using the ATI Regulations is due to the availability of Openreach’s passive infrastructure on regulated terms. Openreach’s telecoms specific nationwide infrastructure will often be better suited practically and geographically to broadband deployment than utilities networks or telecoms networks with more limited reach. However, there may be some areas where Openreach’s infrastructure is full or in poor condition and where alternative infrastructure could offer a valuable solution to filling in gaps in the network.

1. Other examples of passive infrastructure include pipes, inspection chambers, manholes, cabinets, buildings or entries to buildings, antenna installations, and towers. ↩

2. ‘Access seekers’ are those seeking to gain access to infrastructure owned by others to deploy their own networks. ↩

3. ‘Access providers’ are infrastructure operators who allow or could allow others to access their infrastructure to deploy networks. ↩

4. See page 28 of the National Infrastructure Assessment. ↩

5. A Works Promoter is any organisation carrying out works in the highway, regardless of whether they are working directly for, or on behalf of, a highway authority or an undertaker. ↩

6. Excluding the Hull Area, where Ofcom imposes other specific SMP regulations on KCOM ↩

7. This remedy built on a previous duct and pole access remedy, which Ofcom required Openreach to offer as part of its Wholesale Local Access Review 2018. https://www.ofcom.org.uk/consultations-and-statements/category-1/wholesale-local-access-market-review. Openreach launched this product on 1 April 2019. ↩

8. Ofcom: Promoting competition and investment in fibre networks, paragraphs 3.166 to 3.169. ↩

9. Mobile backhaul refers to the link that connects the ‘core’ network to the ‘radio access network’ (RAN) of the mobile network which allows for mobile basestations to deliver wireless connectivity. ↩

10. see Full Study, page 21. ↩

11. Note that there are many exemptions relating to water pipes and sewers. This is mainly due to capacity pressures on the current sewerage pipes. ↩

12. The minimum harmonisation approach was based on the government’s policy not to ‘Gold Plate’ European directives, in line with the Guiding Principles for EU Legislation ↩

13. See European Commission, Report on the implementation of the Broadband Cost Reduction Directive, June 2018, for further information on the implementation of the Directive across Europe. ↩

14. Namely: the location and types of works; the network elements involved; the estimated date for starting works and their duration; and a point of contact. ↩

15. The development of ‘broadband-ready’ labels on a voluntary basis was suggested in the Broadband cost reduction directive, Article 8(3). ↩