knowledge 9 August 2016 |

Broadband in the Limelight - New Broadband Cost Reduction Directive Regulations Passed

The 2016 Regulations will be relevant to public communications network operators (such as broadband network providers) (“communications operators”) and utilities networks operators (such as those operating in the gas, electricity, non-drinking water, rail, road, ports and airports sectors)(“utilities operators”). Amongst other matters, the new rules address infrastructure sharing, information sharing and co-ordination of civil works between communications operators and utilities operators with a view to facilitating the roll-out of high speed broadband networks in Ireland.

Summary New Rules

At a high level, in certain circumstances, the 2016 Regulations confer on communications operators the following new entitlements.

Substantive Entitlements:

• Network access to install electronic communications equipment: Communications operators have a right, on reasonable request and subject to exceptions, to access the passive infrastructure of other communications operators and utilities operators to install elements of high-speed public communications networks (eg high speed fibre broadband equipment) within a specified timeframe. This includes infrastructure such as pipes, masts, ducts, inspection chambers, manholes, cabinets, towers and poles (“passive infrastructure”). Exceptions must be based on objective, transparent and proportionate reasons and include a refusal for reasons of network security and integrity, public health or safety, technical unsuitability of the passive infrastructure, space limitations, risk of interference with the main services provided by the network and the availability of wholesale access alternatives (Regulation 6)
• Co-ordination of civil works: Communications operators have a right, on reasonable request and subject to exceptions, to co-ordinate civil works with other communications operators and utilities operators for the purposes of deploying elements of high-speed public communications networks within a specified timeframe. Exceptions include a refusal in circumstances where the civil works are not publicly funded or where the proposed co-ordination would impose additional costs or cause delays to the planned works (Regulation 8).

Facilitative Entitlements:

• Information access: Communications operators have a right, on request and subject to exceptions, to access certain minimum information of other communications operators and utilities operators within a specified timeframe regarding the following:
  • civil works co-ordination information such as the operator’s current and planned civil works (Regulation 7)
  • network location information such as the location, route, type and current use of passive infrastructure (Regulation 4); and

• Network Access for Surveys: Communications operators have a right of access, on reasonable request and subject to exceptions, to conduct on-site surveys of the passive infrastructure of other communications operators and utilities operators within a specified timeframe. Exceptions include a refusal for reasons of network security and integrity, national security, public health or safety and confidentiality or operating or business secrets (Regulation 5).

Other Measures

In certain cases, disputes under the 2016 Regulations may be referred to the Commission for Communications Regulation, which may make a decision on the matter (subject to appeal).

New provisions also apply with respect to the right of communications operators to roll-out their communications infrastructure to the communications access point and network termination point in buildings and to use existing access points and certain passive infrastructure (eg ducts connecting access points to network termination points in apartment and other multi-tenanted buildings) (Regulation 9).

The 2016 Regulations also amend existing procedures with respect to applications for laying of underground and overground public communications infrastructure. For example, Section 254 of the Planning and Development Act 2000 has been amended to require planning authorities to reach their decisions on applications within a four month time-limit, failing which a deemed licence is provided (save in exceptional circumstances). Analogous amendments have been made with respect to applications to road authorities under the Communications Regulation Act 2002.

Separate Regulations on Broadband- Ready Buildings Awaited

Separate regulations are awaited in the coming period which will implement the construction-related requirements of the Broadband Cost Reduction Directive ie that all new and renovated buildings for which applications for planning permission are submitted post 31 December 2016 must be broadband-ready. The 2016 Regulations do not transpose these provisions of the Broadband Cost Reduction Directive.