Ofcom consults on guidance for handling disputes over telecoms infrastructure access rights

The regulator has published new guidance (54-page / 562KB PDF) that explains how it will handle disputes that arise over rights of access to physical infrastructure set out in UK legislation that will shortly come into force.

The Communications (Access to Infrastructure) Regulations (16-page / 111KB PDF) take effect on 31 July. Among other things the regulations provide electronic communication network providers with qualified rights to access to others' physical infrastructure, so as to reduce their own costs in deploying rival high-speed electronic communications networks.

Infrastructure operators must generally, within two months, provide access to their sites on fair and reasonable terms, subject to some exceptions, such as where there is a national security risk. A right of refusal also exists if, based on "objective, transparent and proportionate grounds", infrastructure operators deem requests for access to be "unreasonable".

In its guidance Ofcom said that requests for access to physical infrastructure should include "a clear description of the infrastructure to which the request for access relates".

"Requests should be as specific as possible so as to minimise the burden on infrastructure operators and could for example, list infrastructure identifiers previously supplied by the infrastructure operator or alternatively street names, post codes and/or geographic coordinates of the physical infrastructure," Ofcom said.

The requests, which should be in writing, should also clearly describe "the network elements" the network operator "proposes to deploy and the timeframe required for deploying those elements", it said.

Ofcom confirmed that infrastructure operators can, providing they are fair and reasonable, impose conditions on "work scheduling, notification or permit processes; [and] qualifications, certification or training requirements for persons who access the physical infrastructure and who may undertake work".

Similarly the operators of infrastructure can impose "technical specifications and operational processes concerning the types of network elements that may be deployed and their installation and repair".

Infrastructure operators can charge rivals for access to their equipment, although Ofcom can be called on to resolve disputes over what price is fair and reasonable for such access.

Ofcom said it has an obligation, under the regulations, to "ensure that the infrastructure operator has a fair opportunity to recover its costs" and to "take into account the impact of the access on the infrastructure operator’s business plan, including investments made by the operator, in particular in the physical infrastructure used for the provision of high-speed electronic communications services".

Its guidance has explained in more detail how it might consider the accessing of infrastructure to impact on operator's business plans. It said there are "various ways" business plans could be affected, including through "greater downstream competition as a result of granting access". It said more competition could "reduce the profitability of the investment in the physical infrastructure in a way that undermines its viability".

It said it also "recognises that there may be circumstances where access to infrastructure which is not operated by a network provider could have an impact on the infrastructure operator’s business plan that may need to be compensated for in the access price".

"For example, in circumstances where the infrastructure operator could demonstrate plans to use the relevant infrastructure itself, while it would be entitled to refuse access, it may instead be willing to offer access if the price reflects the impact on its own plans to use the relevant infrastructure," Ofcom said.

Infrastructure operators will be required to provide evidence to support claims that providing access to their infrastructure to other network providers would impact their business plans, the regulator said.

It said: "For example, where the claim is that access will impact the economic viability of an investment, this evidence might include business plans underpinning the investment, as well as information on the potential scale of the impact and the likelihood that this will materialise. We are less likely to take into account impacts that are not sufficiently evidenced."

Ofcom's draft guidance is open to consultation until 4 October.