David Davis MP Pressures KCOM to Help Resolve FTTP Poles Dispute

The MP for Haltemprice and Howden, David Davis, has called on ISP KCOM, MS3, Connexin and other alternative broadband network operators in East Yorkshire (England) to help resolve the “unsightly mess of unnecessary street furniture” (a reference to recent protests against poles) by fairly sharing access to existing ducts and poles.

Poles are a common sight across much of the UK (Openreach alone has 4 million of them), which is in no small part because they’re cost-effective to build, can be deployed in areas where there may be no space or access agreement to safely put new underground cables, are less disruptive (avoiding the noise, access restrictions and damage to pavements of major street works), can be built under Permitted Development (PD) rights with only minimal prior notice and are faster to deploy than digging trenches. The lower cost impact can often mean the difference between building gigabit broadband into an area or skipping it entirely.

However, not everybody is a fan of poles, as aptly demonstrated by the recent protests against their deployment by residents of Hedon, South Preston and several other locations (here and here) – as well as more widely across the United Kingdom (here).

Over the past week, locals in Hedon have even taken to parking over the top of pole deployment sites and blocking streets to prevent more poles being deployed. Complaints often focus on their negative visual appearance, concerns about the risk of damage from major storms (example) and a lack of effective prior consultation.

Disputes like this are naturally much more likely to occur in areas that haven’t previously had poles, which is where most of the gripes tend to surface. In such situations, network operators often face a stark choice – continue to build against the wishes of local residents (often resulting in protests and negative headlines) or scrap that part of the build to focus on other areas. But in the case of Hedon, MS3 is currently trying to push forward.

At this stage it’s unclear precisely why MS3 are moving ahead, despite facing significant opposition and negative headlines, although it’s worth considering that the operator also has to consider those who may have registered to sign-up to their network in the area (they aren’t all NIMBYs). Similarly, sometimes operators need to link together different sections of a network, which can make it difficult to miss out certain critical areas without causing wider problems.

Infrastructure Sharing

One particularly complex aspect that often gets raised is the question of why the new entrants (MS3, Connexin etc.) can’t simply run their new fibre via KCOM’s existing ducts, most of which are underground (KCOM is deemed to have significant market power over quite a big area around Hull by Ofcom). The first thing to note here is that this might not be workable in every area, so some poles may still be required, although it is a fair argument to make.

According to the BBC News, David Davis MP has now waded in to the dispute and highlighted how the law allows operators like KCOM to share existing infrastructure, but new entrants to the area’s broadband market had told him they faced “obstacle after obstacle” in doing so. AltNets are said to have told Davis about KCOM adopting “prohibitive pricing mechanisms” for the use of existing infrastructure and of “procrastination and delay” in the matter.

“I have also asked [KCOM] to publish a clear and transparent pricing structure for access to the infrastructure it owns,” added Mr Davis. But a spokesperson for KCOM itself said they “absolutely refute any suggestion that we are putting any barriers in the way of other providers accessing our network … No provider has disputed any network access issues with us and we are not aware of any formal disputes lodged with Ofcom.”

Ofcom doesn’t strictly require KCOM to offer a regulated cable duct and pole access solution that is exactly like the one that Openreach offers via Physical Infrastructure Access (PIA). The regulator instead took an approach to remedies which focuses more on requiring access to KCOM’s fibre access network (wholesale), rather than access to its physical / passive infrastructure (here). The rules also soften a bit once you get outside the core Hull area.

However, the law does still require KCOM to fairly share access to its infrastructure, but operators expecting the same level of access and affordability as PIA from KCOM will probably run into a problem with the operator’s commercial terms. The CEO of MS3, Guy Miller, recently offered some insight into this from the AltNets perspective.

Guy Miller, CEO of MS3, told ISPreview last month:

“KCOM are subject to much of the same rules and regulations as Openreach but due to vast scale differences between the two organisations and their respective footprints this clearly creates nuances. In simple terms if you are both required to offer PIA based on a Cost Plus model and your base costs, due to scale, are three times as much, then you would reasonably expect the final price to other operators to be more expensive. This may or may not make it commercially acceptable to the other operator.

MS3 have utilised Openreach infrastructure in other locations such as Grimsby and Scunthorpe to great effect with >95% of our homes passed in these areas requiring no additional dig or poling. It is more cost effective and creates less disruption. Quite simply it is our preferred deployment method. Whilst I am unable to talk about confidential commercial terms with KCOM, readers can make their own minds up about our decisions (and that of our neighbouring altnets) in KCOM licensed areas.

As Mark has pointed out, when it comes to deploying new infrastructure in more surburban areas with homes further apart, economics plays a factor and without the option to install telegraph poles then the rollout would simply not happen. MS3 has already dug over 400,000 metres of trenches to lay ducting and cables where it has been economically feasible to do so in Hull.”

The regulator, Ofcom, has reiterated that KCOM are required to share access to their infrastructure with rivals and operators should complain to the provider first, before raising the issue with the regulator. A few operators already did this during the regulator’s last market review, but that was before many of the most recent projects had been announced or even started.

Ofcom has confirmed that at least one operator has already engaged with KCOM in this way and have indicated that they will raise a dispute if a suitable access agreement cannot be provided. But such things, if formally disputed, tend to take a long time to resolve, and thus won’t be of much help with today’s challenges.

MS3 have since confirmed that they’re considering raising a dispute against KCOM, while Connexin said the company had “applied to KCOM for clarity on pricing and access to their infrastructure“.

Hugh Davies, from Connexin, said:

“Where there is no underground ducting available at all, or where we have not been able to access KCOM’s infrastructure, we have the choice between digging new ducts or using poles. Digging is not easy as there are already many utilities embedded in our streets. Often it is safer, more environmentally sustainable and less disruptive to use poles. A lot of KCOM’s network also uses poles.”

Overall, poles remain one of the least loved pieces of modern broadband and phone infrastructure (not unlike mobile masts), but with so many network operators now using them to deploy new gigabit broadband services then it’s hardly surprising that the volume of gripes has also increased.

Naturally, we’d all prefer it if broadband, power and mobile infrastructure was totally invisible, but that’s not always economically feasible. The government have allowed the current level of flexibility in order to support their plans for achieving nationwide (c.99%) coverage of gigabit-capable broadband by the end of 2030.

Similarly, it’s worth noting that many people seem happy to accept such poles if it means getting full fibre, but that’s definitely not a universal sentiment. Naturally there’s a general election on the horizon and, as this issue seems to be slowly becoming more of a political one, then we’re starting to see different sides of the political divide play into that.

Meanwhile the anti-pole protestors in Hedon recently launched a national petition to request a change in Government legislation, which called for “telecommunication installations in the public realm to go through the local planning process” (that was extremely broad – covering more than just poles) and hoped to gather 10,000 signatures to attract an official response from the government. But that petition closed after having gathered 7,864 responses (they might have had more success by focusing specifically on poles and notification requirements).

The hope is that a better solution can be found than one that might involve the reintroduction of greater restrictions (red tape). The risk there is that such a change could damage existing rollout plans and investment, which might have wider consequences for future fibre and 5G deployments, as well as government coverage targets. The government are thus highly unlikely to impose or re-impose any serious new restrictions on build.

Finally, we think it’s worth quoting Ofcom’s regulatory position – extracted from their most recent market review – on shared access to passive infrastructure in the KCOM market area.

Ofcom’s Position

In Section 1 we have explained why, having considered stakeholder responses including Connexin’s call for regulated access to KCOM’s physical infrastructure, we have taken an approach to remedies which focuses on requiring access to KCOM’s fibre network rather than access to its physical infrastructure.

Nevertheless, we recognise that operators like MS3 and a concentration of WISPs including Connexin do have some network presence and broadband customers in the Hull Area. Over the course of this review period they, or other entrants, may seek space in KCOM’s network of underground ducts and chambers and, aerially, space on its poles to deploy a fixed access network in the Hull Area to compete with KCOM in the market for WLA.

We consider that such requests to KCOM for a form of physical infrastructure access are consistent with our approach to ex ante SMP regulation in this review of wholesale fixed telecoms markets in the Hull Area. We consider that such a request could be reasonable under the WLA general network access condition we are imposing, in which case KCOM would effectively be required to provide the relevant form of physical infrastructure access as soon as reasonably practicable and on fair and reasonable terms, conditions and charges.

Access to physical infrastructure supplied under the WLA general network access condition would be restricted to the deployment of fixed network technologies (most likely fibre) to fixed locations in the Hull Area to provide services to homes and businesses such as broadband. Wireless services and leased lines are not in the WLA market.

We note that KCOM is already required to provide access to its physical infrastructure under the ATI Regulations. This is a separate regime which the DCMS is reviewing. However, we do not consider the ATI Regulations to be a substitute for network access obligations. The ATI Regulations are conceived as a means of facilitating commercial agreements for access on fair and reasonable terms, with Ofcom providing dispute resolution in the event no agreement can be reached. A general network access obligation provides greater certainty in that it forms a basis for the specification of the nature and terms of access to KCOM’s physical infrastructure up front where such a request is reasonable. Given the competition concerns with respect to KCOM’s position in the market in the Hull Area we consider such certainty is, in this case, necessary to ensure a network access remedy is effective and is not provided by the ATI Regulations.