Judges sitting on CAT unanimously found that Ofcom had 'dropped the ball' on its dark fibre rules, meaning that Openreach is no longer obligated to allow other operators access to its unlit fibre lines.
Prior to this point Ofcom had ordered BT to introduce a “dark fibre” product allowing rivals to access unlit fibre lines used for ultrafast business broadband products and Ethernet cables to connect phone masts. Ofcom's aim was to stimulate competition, investment and overall improve broadband coverage.
Access to dark fibre would allow operators such as Vodafone, Three and others, to install their own equipment, rather than paying to use Openreach kit.
The Competition Appeals Tribunal said that Ofcom made an error in it definitions of the UK business market and Ofcom will have to launch a re-assessment of the business market in order to implement its proposals.
Following the news Openreach instantly axed its plans. In a note sent to other communications service providers, Openreach said it does not “intend launch DFA on 1 October 2017 or notify launch pricing at the end of August/early September 2017. We’ll issue formal communications to CPs over the coming days.”
“We’ve been working closely with our Communications Provider customers for over a year to develop this product, and we remain keen to discuss alternatives that could meet their needs. “We wanted to communicate this as soon as possible to allow them to make suitable plans.”
CityFibre said the decision from Openreach was not surprising, given the lack of legal basis behind it following the CAT’s ruling.
Mark Collins, director of strategy and public affairs at CityFibre, said: “As one of the UK’s largest suppliers of dark fibre infrastructure, CityFibre’s growth and proven ability to attract investment, demonstrates that the competitive market for business connectivity, including commercial supply of dark fibre, is alive and well and not in need of disproportionate and unnecessary regulatory interference. “Rather than continuing to drive increased dependency on Openreach, we suggest that Ofcom goes back to the drawing board to focus on delivering more appropriate and proportionate remedies that help meet its own strategic objectives to support increased competitive investment in full fibre for the UK.”
Ofcom said it still supports dark fibre, with a spokesperson saying “Once we have the Tribunal’s reasoning, we will know how best to proceed in order to protect competition and consumers. We continue to believe that dark fibre can bring significant benefits for businesses and consumers.”