The Communications (Access to Infrastructure) Regulations 2016 (the 'Regulations’) are intended to encourage the sharing of existing infrastructure (such as road, rail and utilities) with the telecoms industry.

This is to help the government meet its target of rolling out Gigabit-capable broadband to 85% of premises across the UK by 2025. Although the Regulations had been in force for a few years, they weren't being widely used so in 2020 the government launched a review into the Regulations. We reported on the background to the Regulations and the government's motives for the 2020 call to evidence in our article.  

The government has now published the findings of that consultation and the responses enabled the government to make some high level conclusions: 

1. The Regulations could be clarified and improved; 

2. No new primary legislation is needed in order to increase uptake of the Regulations' mechanisms. 

This consultation will be revisited in five years' time, though note that this would take us to after the 2025 target date. 

Responses to the Call for Evidence 

The responses to the call to evidence raised some interesting views both within the telecoms sector and from other infrastructure owners.

Non-telecoms infrastructure owners who responded to the consultation were willing to share their infrastructure with telecoms providers. They felt that the best way to encourage this was through highlighting the reciprocal benefits to each sector. 

In contrast, the telecoms sector expressed a reluctance to look beyond utilising the existing Openreach network. This reluctance stems from a general preference for the telecoms infrastructure they are familiar with, that is already nationwide and is felt to be more stringently regulated by Ofcom than the alternatives. This danger that utilisation of alternative infrastructure could lead to regulatory gaps has been highlighted before.

Both non-telecoms and telecoms stakeholders expressed concern with reforming the Regulations, in particular any introduction of specific pricing rules. Telecoms stakeholders felt that reform could undermine the regulatory product on Openreach and investments, while non-telecoms stakeholders expressed concern that reform could be detrimental to their primary obligations within their own sectors and undermine the original purpose of the infrastructure.

The respondents did however highlight areas where they felt the Regulations could be improved by adding clarity. These areas included:

• whether the Regulations apply to publicly owned infrastructure;
• implications for in-building infrastructure; and 
• whether the Regulations could be used to deploy business connectivity services and mobile infrastructure via the same methods. 

Another area of concern by both types of respondents was the length of time that the Regulations gave for responding to requests for sharing of infrastructure and whether these were too long.

Respondents to the consultation highlighted that the government could do more to reduce the barriers to the telecoms industry accessing land to use existing infrastructure and obstacles around information sharing. It was noted in the government response that steps were being taken in these areas outside of the Regulations and so no new measures would be taken as part of this consultation.

Government Response

The government concluded that making any major changes to the Regulations would be disproportionate, but also addressed some of the areas that the respondents considered ambiguous, setting out plans to consult further on some. 

Clarification

The government clarified the position on the three main areas raised by the respondents as follows:

1. The Regulations should apply to all passive infrastructure operators and deployment to business only networks.   

They are proposing to take appropriate action to clarify the inclusion of both of these aspects in the Regulations.  

2. The Regulations apply to in-building infrastructure – and also referred to Part R of the Building Regulation 2010 which states that all new buildings, and any building undergoing major renovations, must have in-building physical infrastructure which are capable of (but not necessarily connected to) super-fast broadband (note this does not require the broadband connection itself).

3. The Regulations also apply to infrastructure for 4G and 5G networks – the roll-out of mobile infrastructure which deploys high-speed electronic communications networks which are ‘capable of delivering access to broadband services at speeds of at least 30 megabits per second’.  

Time periods

The government are keen to consult with industry on the practicalities of shortening the period of time in which infrastructure operators should respond to requests for information from two months to one month.  The respondents did note the difficulties that could arise in shortening time periods and the challenges it may bring to all parties involved and as such there will be further discussion before any amendments are made to the Regulations.

Ofcom enforcement powers

Finally, the government stated they would consult on the enforcement powers of Ofcom under the Regulations.  Currently Ofcom can resolve disputes and impose injunctions in relation to the sharing of infrastructure, but they are not able to find an operator in breach of the Regulations for failing to provide access or engage with a request. Amending Ofcom's enforcement powers could help improve engagement but the impact of increased powers needs to be considered.

Conclusion

The government response is that the 2025 objective of 85% of UK premises having a gigabit broadband connection can be met without a material change in approach by primary legislation. But the government still believes that the Regulations have not been used to their full potential and wants to establish a quicker and simpler process for amending them in future through secondary legislation.

If you operate infrastructure such as pipes, chambers, ducts, poles, manholes or cabinets that could be used for new broadband networks, or if you are a broadband installer interested in finding out how you could reduce your installation costs by up to 80%, then please get in touch with us. We act for a number of telecoms and non-telecoms infrastructure holders and could help you work together to get the most out of the Regulations.