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Ofcom UK Shuns BT Demand for Virgin Media to Open its Broadband Cable Ducts

Posted: 01st Aug, 2011 By: MarkJ
ofcom fibre optic broadband uk cable duct sharingofcomThe communications regulator, Ofcom UK, has ruled out, at least for now, an oft-repeated BT request for Virgin Media to follow by its example and open up access to their cable ducts. Such a move would allow rivals to expand their superfast broadband coverage without first having to go through the costly and time consuming process of digging up roads to install new infrastructure.

BT is already required, through their Physical Infrastructure Access (PIA) product, to open access into its cable ducts and (telegraph) poles. The issue of price is still being hotly debated (here) and as a result BT's final product has yet to launch. Never the less BT has been extremely vocal about requiring any ISP that takes its PIA product, such as Virgin Media, to follow by opening access into their networks.

Steve Robertson, CEO of BT Openreach, said in January 2011:

"Although we don’t view duct and pole sharing as the silver bullet to get fibre to every premises in the UK, these new products represent a positive step, opening our infrastructure to supply industry with an even wider range of different mechanisms for delivering fibre broadband. We also think it’s really important that consumers and businesses continue to enjoy a choice of fibre services so we will be expecting others to be as open as we are."

Ofcom hinted earlier this year (here) that it could investigate the issue, but only after the new EU Communications Framework had been implemented. Crucially the rules, which recently came into force, give Ofcom fresh powers to force telecoms operators into sharing their ducts and poles; even if they do not have a position of Significant Market Power (SMP).

This could present some problems for smaller operators and put their tight economic models under pressure. But a far bigger question is whether or not Virgin Media, which is also seeking to use BT's PIA product (provided the price is right), would now be subjected to similar requirements by Ofcom.

An Ofcom spokesperson told ISPreview.co.uk:

"Where operators have a position of Significant Market Power (SMP), Ofcom can require them to share their networks. When we last assessed the market, we used these powers to require BT to share its ducts and poles on a wholesale basis with other providers. We did not find Virgin Media to have SMP.

Under the revised Communications Act which came into force earlier this year, we have new powers to require telecoms operators to share their ducts and poles even if they do not have SMP.

However we would only consider using these in specific cases where the parties involved have first tried and failed to reach a commercial access agreement. It would also have to be proportionate, non-discriminatory and in the interests of promoting efficient investment in infrastructure and innovation."

Ofcom thus has no plans to proactively investigate the issue of access to Virgin Media's cable ducts, although the door is still open for BT to test the waters.

A BT Spokeswoman told ISPreview.co.uk:

"BT offered to make its ducts and poles available to other CPs in 2009, ahead of any regulatory obligation, allowing others a wider range of options to invest in the future of the UKs telecoms infrastructure. We believe it is important, and only fair, that others are prepared to do the same and remove any remaining barriers to investment.

Ofcom's response sets out their current powers, and is factual and unsurprising. However, we believe action is needed on this issue and will continue to make this point strongly to Ofcom."

The news confirms that BT, at least for now, will not be allowed to force telecoms operators who take its PIA product to open up their own cable ducts. Meanwhile Ofcom's proportionality requirement could help to shield smaller ISPs from being forced into a similar position.

At the time of writing Virgin Media had not responded to our requests for comment.
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