Virgin Media and Durham Council Settle Fibre Rollout Legal Fight

Cable TV and broadband ISP Virgin Media UK has announced that they’ve settled their legal challenge against Durham County Council (England), which began after the operator objected to the “hefty” fees per metre that the authority wanted to charge for laying new fibre optic cable along grass verges.

The provider is currently deep into their £3bn Project Lightning expansion, which is working to extend their Hybrid Fibre Coax (HFC) and Fibre-to-the-Premises (FTTP) based EuroDOCSIS network to an additional 3-4 million premises by around the end of 2019 (possibly 2020).

As part of that Virgin Media had previously pledged to build their network out to an additional 16,000 premises in Durham by the end of 2019, but that effort ran into trouble this spring after the operator accused the county council of putting up a “broadband blockade” that is “holding [their] rollout to ransom” by charging “hefty” fees for land access (here).

The Durham Dilemma

Essentially the council wanted to charge to access grass verges that run alongside public pathways, which Virgin needed so that they could lay fibre optic cables while at the same time minimising disruption caused to residents. The operator also hinted that this issue extended beyond Durham and that “haggling over land access” was now slowing down their roll-out elsewhere too.

In response Virgin decided to sue Durham as a test case for the recently revised Electronic Communications Code (ECC). This was updated last year in order to make it easier and cheaper for mobile and broadband operators’ to deploy new infrastructure (masts, cables etc.) on public or private land (details).

One key principle behind the ECC is that no-one should be unreasonably denied access to an electronic communications network. The ECC envisages parties reaching an agreement for rights of access over land. However, in the absence of such agreement, there is a provision to allow for such rights to be imposed by the Upper Tribunal (Lands Chamber). Virgin Media sought for these rights to be imposed.

Meanwhile the council said they were “extremely disappointed” by the action and “were under the impression we had a good constructive dialogue and that we were awaiting further information.”

The Outcome

Fast forward several months and last night the two sides jointly announced that they had reached an “amicable agreement on land access terms,” which came ahead of the case being heard by the Upper Tribunal (Lands Chamber). The result is that Virgin Media will have to pay only £1 for land access to the areas which were under dispute.

Tom Mockridge, CEO of Virgin Media, said:

“This agreement with Durham sets a much needed precedent which will speed up broadband rollout and encourage investment. We hope that other local authorities and landowners now follow Durham’s example.

Most importantly, this is fantastic news for the residents and businesses of Durham as we can now continue the good work we started with Durham Country Council and bring a real broadband boost to local communities across the county.”

Stuart Timmiss, Durham CC’s Head of Planning, said:

“Following the reforms it was important that, as a local authority, we were able to test and understand the implications of the new code. Working closely with Virgin Media and our legal team we are happy to be able to move forward in ensuring our businesses and communities can benefit from superfast broadband.”

The agreement between the two parties resolves any future discussions regarding the laying of fibre-optic cable in grass verges that run alongside public pathways across the county. On top of that Virgin Media has also committed to expand the scope of its network rollout in Durham to include several new areas, such as Consett and Bishop Auckland.

Virgin clearly hope that the outcome will set a constructive precedent for other parts of the country where they may have been suffering from similar disagreements, although this could be hindered by the fact that the case never reached the tribunal stage (i.e. hasn’t been formally established in law).

The cost of civil engineering is a huge weight on such network deployments, but Virgin has shown that one obvious benefit from helping to cut those costs is the ability to then extend their coverage beyond what was originally planned. Carrot and Stick.