EU telco network sharing plans must be extended to all multi-site telecoms infrastructure companies, says expert

Out-Law News | 28 Mar 2013 | 11:31 am | 4 min. read

The European Commission wants telecoms firms to be forced to allow rivals to offer high speed services over their networks as long as requests are "reasonable". But one expert said that the rules will not work in the UK unless extended to all providers of shared mast sites.

The Commission has published plans designed to lower the cost of building high speed networks. It is asking for views on a proposed Regulation that would oblige telecoms firms to offer other operators a right to access their infrastructure on "fair terms and conditions".

"When electronic communications networks providers request access in a specified area, network operators should make available an offer for the shared use of their facilities under fair terms and conditions, including price, unless access is refused based on objective reasons," according to a non-binding recital within the draft Regulation.

But Dev Desai, a telecoms and property expert at Pinsent Masons, the law firm behind, said that the rules will only have a limited effect in the UK unless their scope is widened.

He said that the UK market was one in which extensive sharing already happens. However, the sites in the best locations are often owned by multi-site infrastructure companies, or managed by them on behalf of utility and other companies. Combined with planning laws that discourage the establishment of new sites in the vicinity of existing ones, this gives operators little choice but to use them, he said.

"They have been forced to accept terms and conditions, and pay rents, which some operators regard as unfair and inconsistent with the rest of the market," he said.

The intention behind the proposed Regulation was that it should apply to owners of any infrastructure suitable for use as a host to telecoms equipment. However, Desai said, the actual scope of the Regulation, as drafted, is more restrictive.

"The draft provisions limit their application to telecommunications network providers and to any 'undertaking providing a physical infrastructure intended to provide a service of production, transport or distribution of gas, electricity, including public lighting, heating, water, including disposal or treatment of waste water and sewage; transport services, including railways, roads, ports and airports'. Therefore, sites which are owned by multi-site infrastructure companies that are themselves licensed telecoms operators, or sites which the companies manage on behalf of utilities and transport companies, will be subject to the regulations", he said.

"But if the proposed regulations are to properly liberate those parts of the UK telecoms infrastructure market which are currently dominated by multi-site infrastructure companies, they should apply to those companies even if they are not licensed operators or the physical infrastructure does not otherwise serve utilities or the transport industry. The companies should not be able to escape the Regulation by, for example, terminating their telecoms licence" said Desai. "The proposed reforms to the Electronic Communications Code in the UK, for which the Law Commission has recently made recommendations, would be a good opportunity for Parliament to fill this gap in the draft Regulation."

The draft Regulation sets out the circumstances in which the owners of telecoms networks can refuse requests from communication providers to use their infrastructure. Generally, those network owners would be barred from denying others access on fair terms where the request made is "reasonable" (28-page / 143KB PDF).

Owners of the existing infrastructure could claim that their system is not technically suited to accommodate communicate providers' requests, or that there is insufficient space to host the network "elements" those providers wish to deploy, according to the proposals. In addition, the infrastructure owners could also refuse access if there is a risk to the "integrity and security" of their own network or if there is a "risk of serious interferences" to the services already deployed over the infrastructure.

Under the proposed new regime, disputes over refusals could be referred to "competent national dispute settlement" bodies, which would rule on whether refusals are justified or whether any conditions imposed on access are reasonable.

The European Commission has also laid out draft plans that would oblige network operators to provide "minimum information" about their physical infrastructure in order for communication providers to be able to assess "the potential for using existing infrastructure in a specific area as well as to reduce damages to any existing physical infrastructures". Disclosures would be made in line with principles on privacy and "business secrets", according to the draft Regulation.

The Commission's proposals also contain plans aimed at ensuring there is less disruption to transport and the environment because of engineering works. Under the draft Regulation network operators would have the right to agree deals with communication providers to ensure that there is a better "coordination" over works undertaken to deploy new high-speed networks.

Publicly-funded engineers would be obliged to undertake work needed to deploy communication providers' networks where they are already undertaking work on the infrastructure on behalf of the owners under certain conditions, according to the proposals.

"Every undertaking performing civil works fully or partially financed by public means shall meet any reasonable request from undertakings authorised to provide electronic communications networks in view of deploying elements of high-speed electronic communications networks for civil works coordination agreement on transparent and non-discriminatory terms, provided that this does not entail any additional costs for the initially envisaged civil works and that the request to coordinate is filed as soon as possible and in any case at least one month before the submission of the final project to the competent authorities for permit granting," according to a binding provision in the draft legislation.

In addition, the communication providers would have rights to access information about how permits for engineering works are granted in particular EU countries and would themselves be able to make applications for work to be undertaken through a single point of contact which would be "entrusted with the responsibility of coordinating the different procedures and monitoring whether the decisions are adopted within the legal deadlines". The default deadlines imposed for decisions on applications to be taken would be six months.

The Commission's plans would also see every new building required to be fitted with "a high-speed-ready in-building physical infrastructure", subject to EU member states' limited ability to carve out exceptions to this requirement.

"We will ensure broadband-ready buildings," EU Commissioner Neelie Kroes said in a speech on Tuesday. "All new buildings and major renovations will have to be equipped for high-speed broadband. It's common sense: it's what citizens want, and it's a good property investment. After all, these days you wouldn't buy a new house or office that didn't have electricity or running water."

The European Commission said that its proposals were prompted by an "extensive study" that had shown that if measures to ease "inefficiencies" and "bottlenecks" in the system for deploying high-speed communications infrastructure were implemented, telecoms operators could stand to gain savings of up to 30% from their costs in investing in the technology. The total savings could reach €63 billion by 2020, it said.

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