Ofcom forces Openreach to open up again and reintroduces Dark Fibre

Ofcom has proposed new rules which will force Openreach to open up more of its network to other communications service providers.

Access to ducts and poles owned by Openreach has been a point of interest for Ofcom for some time, and now it appears the regulator is gathering momentum. As it stands, Openreach has to offer rivals access to its telegraph poles and underground ducts when providing services to consumers and SMEs, though the new rules will extend this ‘co-operation’ to enterprise scale and mobile backhaul connectivity services.

“The amount of internet data used by people in the UK is expanding by around half every year,” said Jonathan Oxley, Ofcom’s Competition Group Director. “So, we’ll need faster, more reliable connections for our homes, offices and mobile networks.

“Our measures are designed to support the UK’s digital future by providing investment certainty for continued competitive investment in fibre and 5G networks across the country.”

Although the likes of Virgin Media, TalkTalk and CityFibre are among the firms already using Openreach’s ducts and poles, to date the rules have been somewhat of a halfway measure. Improving access to Openreach infrastructure will improve the potential business case for all telecom services, offering greater prospects for competition.

The draft rules also bring the Dark Fibre discussion back into the fray.

In areas where BT faces no competition, Openreach would be required to give competitors physical access to its fibre-optic cables, at a price that reflects its costs. BT has always argued against the Dark Fibre suggestions from Ofcom, with the telco challenging rules brought forward by the regulator in the 2016 Business Connectivity Market Review.

BT’s legal challenge focused on the market definitions Ofcom used in the market review, with the Competition Appeal Tribunal (CAT) agreeing with the telco:

“The Competition Appeal Tribunal has found Ofcom to have erred in relation to various aspects of the decisions concerning market definition under appeal and required Ofcom to look again at some specific matters concerning market definition.”

This of course did not end the pursuit of Dark Fibre, but it did send Ofcom back to the drawing board. What is worth noting is that BT is not the only infrastructure owner to find issues with the obsession with lighting up Dark Fibre.

Following the decision from CAT, Ofcom promised to do better next time, much to the dismay of CityFibre.

“However, whilst the quashing of the BCMR is welcome, Ofcom’s response today appears to double down on its misguided approach to assessing the scope for competition whilst maintaining its flawed fixation with regulated dark fibre access,” said Mark Collins, Director Strategy & Policy at CityFibre.

“It’s pessimism about the prospects for real, infrastructure-based competition perversely restricts alternative providers’ ability to compete.”

The argument from the likes of CityFibre and BT is relatively simple. Dark Fibre removes the drive for infrastructure investment. Why would rivals want to spend money on fibre deployment when they could just force those who are making the plunge into working with them. It could potentially create a position where everyone is sitting, waiting on the starting line, waiting for a rival to twitch first.

That said, Vodafone does not feel the Dark Fibre rules go far enough.

“We support competition, but Ofcom’s proposals to grant access to dark fibre only on the fringes while loosening its price controls on BT Openreach will mean businesses and the public sector paying more to meet their connectivity needs,” said a Vodafone spokesperson.

“There is an alternative. Providing universal access to dark fibre now would give the UK the connectivity it needs, at a price everyone can afford. Sadly this is another opportunity Ofcom has missed to plug the full fibre hole in the UK.”

What is worth noting is that these rules are draft proposals for the moment. There is likely to be push-back from the likes of Openreach and CityFibre, and perhaps legal challenges in the mid-term. What rules are eventually introduced might look very different in a couple of months.

UPDATE: 24/05/19, 12.20pm: Openreach has released the following statement:

“Last year we delivered our best ever service performance, but we want to keep improving and we share Ofcom’s desire to improve service across the industry.

“Our ducts and poles have been open to other companies since 2011, and we recognise that unrestricted access is a natural next step, so we had volunteered to get on with that, ahead of Ofcom’s original schedule.

“We welcome the greater clarity around Dark Fibre and the timeframe needed to deliver a fully functional product to market.

“We’ll consider the range of proposals carefully, and we’ll continue to work with Ofcom on developing an environment that encourages greater investment.”