Broadband Universal Service: weasel words or a rabbit out of a hat?

Telecoms.com periodically invites expert third parties to share their views on the industry’s most pressing issues. In this piece Rob Bratby of law firm Olswang looks at the recently announced UK broadband Universal Service Obligation and questions what it will achieve.

In November last year, David Cameron announced his government’s intention of implementing a new broadband Universal Service Obligation. In part driven by the lack of fast internet access afflicting certain rural communities, this initiative was designed to offer everyone in the UK the right to request “an affordable broadband connection, at a minimum speed, from a designated provider, up to a reasonable cost threshold.”

Fundamentally, this proposal purported to put access to a fast connection on par with the legal right to other essential services, such as electricity, water and the receiving of letters, no matter where you were. At the moment, telecoms universal service only covers the right to fixed telephony and data at a speed of 28 kbits/s – which may have been ‘functional internet access’ when you needed a car to transport your mobile telephone, but doesn’t get you anywhere today.

This certainly was not the first time that access to the internet has been touted as a legal right – a rather extreme U.N. report from 2011 went so far as to say that disconnecting people from the internet is a human rights violation and against international law.

Fast broadband as a legal right for everyone in Britain and a minimum 10Mbps service available to every address in the UK was and is an enticing prospect, and certainly one that will impact on the UK telecoms industry. At the time, it was unclear how the government were planning to achieve this from a logistical point of view, with word in the industry being that a Universal Service Obligation in force would compel providers, when and if a customer requested it, to deliver a connection to a 10Mbps service.

It’s an admirable ambition, but whether it’s got sufficient impetus and intent behind it to succeed in its original goal remains to be seen.  We already saw an adjustment earlier this month, with the government slightly stepping back somewhat from its previously portentous statements around ‘no-one being left behind‘ to suggest that maybe not everyone wants to be connected. So, given the high costs involved in providing broadband access into remote areas, in early May it was suggested in a consultation document that it is “right that this is done on request, rather than rolling it out and waiting to see if people in those areas want to be connected.”

With the Queen’s speech, opening the second session of parliament and introducing government plans to legislate on the digital economy – under which the proposed universal service obligation sits – the perception that a step backwards was being taken was perhaps further strengthened. A number of proposals were set out, chief among them ‘the right for every household to access high-speed broadband’.

So far, so good – clearly, the impetus towards better network infrastructure and total (or near total) connectivity is still something that is being focused on at the highest level – the Queen mentions within the first minute. Yet, the notes to the speech published following the speech provide more detail and indicate that the UK is moving towards something rather softer than a true Universal Service Obligation. Where the weasel words become apparent is on page 14 of the explanatory notes:

“…giving all citizens and businesses the legal right to have a fast broadband connection installed. This would work similarly to the landline telephone USO, and just like for landlines there would be a reasonable cost threshold above which the very remotest properties may be expected to contribute to the cost of the installation. The Government expects the minimum speed to be at least 10Mbps initially, and the Bill would also include a power to direct Ofcom to review the speed over time to make sure it is still sufficient for modern life.”

Two particularly pertinent terms that need to be clarified are what constitutes a ‘reasonable cost threshold‘ and ‘very remotest‘. It would be perfectly possible to set these two thresholds at a level where this proposal costs very little to implement and is consequently achieved quickly. Not to suggest there is a lack of ambition, but it is going to be worth paying careful attention to how these are set and whether this will make a material difference to what is already being delivered by a combination of market forces and existing initiatives.

What is clear is that this proposal is neither a legal right nor a universal service obligation, in the way that telecoms regulators across the world would understand those concepts.

And should it go through, is this enough? Last week, Lib Dem Treasury spokeswoman Baroness Susan Kramer suggested the Government ambition behind the Broadband Universal Service Obligation pledge was insufficient for the burgeoning UK tech scene.  We’re moving towards a world where connectivity is ubiquitous, and rightly so – a broadband connection of 10mbsps, even for rural areas that may not consider themselves exactly tech hubs, is insufficient for the UK’s needs. Perhaps it’s time that the government dispenses with weasel words and works with the UK’s telecoms providers to come up with a viable solution for a truly universal broadband service.

Rob Bratby is a Partner and Head of Telecoms at Olswang LLP, providing strategic counsel to companies and their boards.  Rob advises on multi-jurisdictional mergers, acquisitions, disposals, equity and debt investments and fund-raising and joint ventures with a particular focus on cross-border deals and projects requiring knowledge of the telecoms, technology and media industries. He also advises on telecoms, media, privacy and financial regulation.