BDUK’s New UK Code for Use of Existing Broadband Infrastructure

The Government’s Broadband Delivery UK project has proposed a revised Code of Conduct for tackling ‘Use of Existing Infrastructure‘, which clarifies that any ISP who bids for a contract must provide information for all their relevant infrastructure (irrespective of whether it’s actually used) in the target area.

At present BDUK is working predominantly with BT (Openreach) and a few smaller alternative network providers in order to ensure that 95% of premises in the United Kingdom can access a fixed superfast broadband (24Mbps+) service by the end of 2017, although unofficially the project could potentially deliver up to 97% coverage by absolute completion in 2019.

Unfortunately a number of contracts are being forced to wait for the Government to reach a new EU State Aid agreement, which is because the original umbrella deal expired at the end of June 2015 (details here and here). Never the less a final agreement on the new approach could be reached in June, at least that’s what our sources and all the planned meetings seem to indicate.

As part of those negotiations it’s known that the EU has been pushing for all suppliers to provide “full open access” (i.e. share cable ducts, masts, local loops) and that approval must also favour “smaller suppliers” (i.e. encouraging smaller alternative network operators to bid). Mind you this may prove to be tricky because a lot of the smaller altnets prefer closed networks, which helps to protect the investment.

In keeping with this and the new Civil Infrastructure Directive, BDUK has drafted a fresh Code of Conduct for the Use of Existing Infrastructure, which among other things requires that ALL suppliers (those who are bidding) agree to provide “relevant information on the use of existing infrastructure to other bidders upfront and in readiness for any issue of a tender” (i.e. not only the winner).

The code also confirms that any physical infrastructure must be made available at ‘fair and reasonable’ terms and conditions, consistent with the Civil Infrastructure Directive, which includes
provisions for reasonable access. The code is open for feedback until 3rd June 2016 (email stateaidforbroadband@culture.gov.uk).

The level of detail of information that should be provided

9. By agreeing to the terms of this document, bidders undertake to list the types of infrastructure they own or control in the intervention area (to include masts, poles and ducts). Where access products relating to the infrastructure exist, the Terms of Reference for those access products must also be made available.

10. When a bidder submits a request for information to another bidder, the recipient of this request must make available: (1) geographic data that includes point locations for masts and poles and route data for ducts; (2) the capacity available where accurately known ; and (3) the rental costs. The level of detail must 1 be equivalent to the “existing plant utility location” prints that utilities apply for when undertaking road construction.

11. For that detailed information, infrastructure operators can charge a fee towards the genuine resource cost of compiling that information for the intervention area. Where an infrastructure operator charges such a fee, it must be capped at [£500] per Intervention Area per bidder.

The code notes that some operators (e.g. BT) sometimes demand a Non-Disclosure Agreement (NDA) from local authorities and this has caused a few issues in the past with regards of limitations on information sharing. But BDUK now appears to be proposing a partial solution via their own NDA template (included in the document) and anybody who doesn’t use it will have to get their NDA provision verified by the National Competence Centre (NCC) in order to ensure that it is “non-prejudicial and compliant.”

ISPreview.co.uk notes that BDUK will be holding a couple of supplier briefing sessions on the 8th and 9th June 2016, which will discuss the issue of state aid and the new procurement pipeline. Separately the Government also plans to hold a conference on the UK broadband market, which is set for 14th June 2016 and will involve key participants from BT, Virgin Media, BDUK, Hyperoptic, Cityfibre, BSG, NYnet, TalkTalk and Analysys Mason among others.