INCA Criticise Openreach for Approach to FTTP in UK Flats – Renters Rights Bill

The Independent Networks Co-operative Association, which represents alternative UK broadband operators, has today warned that they believe the “amendment proposed by Openreach” in the new Renters’ Rights Bill would be “ineffective” at solving the problem of how you get full fibre into large MDU buildings where deployment has been unreasonably refused or landlords cannot be contacted.

At present, large residential buildings (Multi-Dwelling Units) still require network operators to secure the permission of freeholders before they can deploy new Fibre-to-the-Premises (FTTP) broadband lines. This can become particularly tedious when landlords refuse access, fail to respond to a request, or where it’s unclear who the freeholder for a building actually is.

Openreach has previously estimated that there are approximately 1,040,000 premises in such buildings across the country for which this issue applies and over 780,000 of those are said to be “at risk of no coverage from us or any other provider“, although it’s difficult to verify these figures. Some 600,000 flats and apartments in London alone are believed to be impacted by this.

The new bill currently hands a lot of additional rights to tenants (gov summary), including the right to request a pet in the property (alongside a supporting requirement for pet insurance). But it does not allow them to request an upgrade to faster broadband connectivity, and this can sometimes leave whole buildings and related tenants trapped on older copper lines.

Openreach often already has an existing copper-based broadband (ADSL, FTTC etc.) network in such buildings, but the related wayleave agreement only allows them to enter the property in order to maintain or upgrade that specific service (i.e. they’d need to secure a new agreement if they wanted to deploy FTTP). Suffice to say that they’ve spent quite a long time arguing for a change to the rules (example).

However, altnets have long warned that they don’t want to see a situation where Openreach is granted special access, which they say could leave them at a competitive disadvantage.

New Amendment to the Renter Rights Bill (RRB)

The latest debate has sprung up after a new amendment was proposed to the Bill, which after Clause 13 would give tenants the “Right to request [a] Fibre to the Premises (FTTP) installation” (here). This is described in the proposal as being “similar to the right to request keeping a pet, by ensuring that landlord consent for FTTP installation cannot be unreasonably refused and that decisions are made within a specified timeframe.”

The new provision, which is written very generally and makes no mention of Openreach or its legacy copper infrastructure, is said to be “intended to reduce delays in broadband infrastructure improvements in rented properties“. But INCA sees it differently.

INCA Statement

“Altnets have invested millions of pounds in developing positive relationships with landlords and landowners, which is why more properties in London have access to an Altnet full fibre service than to an Openreach service. Thinkbroadband shows that 54% of London properties have access to an Altnet full fibre service whilst Openreach can only serve 44% of London properties.

Instead of legislation, there is a need for a collaborative and educational approach, as the Altnets have already demonstrated, to bring landlords and landowners on board with the need to deliver full fibre to MDUs and the benefits this will provide to tenants.

In addition, it’s key that consumers are made aware that there is real choice now in the market beyond the established players. This was evidenced in our recent report on the State of the Altnets and showed that last year alone, almost three-quarters of a million customers chose to switch to an Altnet.

As an industry we’re ready to work with government on a national awareness and education campaign to address the issue of Full Fibre connections in MDUs at pace, drawing on our experience of working closely with landlords and landowners.”

Firstly, the amendment itself was actually proposed by Baroness Janke (Barbara Lilian Janke), who is a current member of the House of Lords and one affiliated to the Liberal Democrats. Openreach did not itself formally propose the amendment to parliament and, as above, the language of the amendment appears to be quite generalised and not Openreach specific. But we’ll paste it at the bottom, so readers can judge for themselves.

The other issue with the more voluntary approach, as seemingly being proposed by INCA above, is that this has been tried and yet the problem remains. In fact, politicians and operators have spent the past few years trying to find solutions for this and, while there have been some improvements (e.g. measures to tackle rogue landlords), they haven’t been able to solve all the remaining challenges.

On the other hand, property owners also have concerns that must be balanced in all this (i.e. insurance, damage to property, security, safety [e.g. fire, asbestos] and other liabilities etc.), which is because upgrading copper lines to fibre in MDUs is often a bit more involved than it may seem (it’s not always minor work) and not everybody may want that.

Some landlords may also have exclusive agreements in place with rival network operators, which would be put at risk. Similarly, it’s also possible that some buildings may run into the same problem as we’ve seen in many UK streets over the past few years, with multiple operators trying to conduct work on the same site – causing a lot of disruption.

Suffice to say, network operators and the government are walking a bit of a tightrope in terms of the rights of freeholders and leaseholders, but it’s not yet clear whether any of the most recently proposed amendment will make it into law.

The Proposed Amendments

After Clause 13, insert the following new Clause—

Right to request Fibre to the Premises (FTTP) installation

(1) It is an implied term of every assured tenancy to which this section applies that—

(a) a tenant may request the installation of Fibre to the Premises (FTTP) at the dwelling-house if the tenant asks to do so in accordance with this section and the landlord consents;

(b) such consent is not to be unreasonably refused by the landlord;

(c) the landlord is to give or refuse consent in writing on or before the 28th day after the date of the request, except as provided by subsections (2) to (5).

(2) Where the landlord reasonably requests further information from the tenant about the proposed FTTP installation on or before the 28th day after the date of the tenant’s request the landlord may delay giving or refusing consent until the 7th day after the date on which the tenant provides any further information that the landlord requests where the following circumstances apply—

(a) the installation of FTTP at the dwelling-house would require the landlord to obtain the consent of a superior landlord under the terms of a superior tenancy, and

(b) the landlord seeks the consent of the superior landlord on or before the 28th day after the date of the tenant’s request.

(3) The landlord may delay giving or refusing consent until the 7th day after the date on which the landlord receives consent or refusal from the superior landlord.

(4) Where the landlord and the tenant agree that the landlord may delay giving or refusing consent, the landlord may delay until whatever date is agreed between the landlord and the tenant.

(5) Where more than one of subsections (2) to (4) apply, the landlord may delay until the latest date to which the landlord may delay giving or refusing consent under any of the subsections.

(6) This section applies to every assured tenancy other than a tenancy of social housing, within the meaning of Part 2 of the Housing and Regeneration Act 2008.

After Clause 13, insert the following new Clause—

Requests for consent to FTTP installation: further provision

(1) The provisions in section (Right to request Fibre to the Premises (FTTP) installation) do not limit the terms that may be agreed in relation to the installation of FTTP.
(2) The tenant’s request under section (Right to request Fibre to the Premises (FTTP) installation) must—

(a) be in writing;

(b) include a description of the proposed FTTP installation.

(3) The circumstances in which it is reasonable for a landlord to refuse consent include those in which—

(a) the installation of FTTP would cause the landlord to be in breach of an agreement with a superior landlord;

(b) an agreement between the landlord and a superior landlord prohibits the installation of FTTP at the dwelling-house without consent of the superior landlord, and the landlord has taken reasonable steps to obtain that consent but the superior landlord has not given it.

(4) In proceedings in which a tenant alleges that the landlord has breached the implied term created by section (Right to request Fibre to the Premises (FTTP) installation), the court may order specific performance of the obligation.