Telecommunications Infrastructure (Leasehold Property) Bill

Written evidence submitted by the BT Group (TIB03)

The Telecommunications Infrastructure (Leasehold) Bill
Public Bill Committee Written Evidence

Overview

1 BT Group welcomes this Bill. It will help to address a key barrier to the rapid roll out of full fibre and gigabit capable networks across the UK . Network builders currently face significant challenges in connecting people living in flats and apartment blocks if they cannot identify or do not receive a response to requests for access from the building owner. According to Openreach, 76% of these multi-dwelling units (MDUs) miss out on initial efforts to deploy fibre because of challenges in gaining access.

2 The Bill should go further to provide greater flexibility for network operators: it should allow operators, not just tenants, to trigger the provisions; the 18-month time limit within which the new rights would apply should be removed; and the deployment of new 5G networks as well as fixed fibre should also be a focus. It should support efficient deployment of all technologies that can deliver ultra-fast broadband connectivity. This includes 5G. BT is currently directly deploying 5G to 70 towns and cities around the UK as the owner of the market leading operator, EE.

3 In addition, the Bill should ensure that any landlord enters meaningful negotiations with an operator (as opposed to simply "acknowledging" them) in order to avoid being subject to its provisions. Finally, clear timeframes between a court accepting that grounds for an order being made under the Bill being met, and the court making that order, should be included.

4 In our view, a wider package of legislative and regulatory reform is needed to support the industry to deliver full fibre at scale across the UK – most notably a business rates exemption . The industry will only have the opportunity to meet the Government’s 2025 target if public policy and regulatory decisions are made quickly to support rapid investment and roll-out. BT Group has an ambition to fund Openreach to deliver full fibre to 15 million premises across the UK by 2025, and potentially beyond – if the conditions are right. We have seen some progress in recent months – including a £5bn commitment to funding the uncommercial and hardest-to-reach 10-20% of the country and some progress announced by Ofcom last month in how it intends to regulate the sector.

Delivering full fibre across the UK

5 BT Group is committed to delivering full fibre across the UK. We are funding Openreach to deliver fibre to four million homes by the end of the next financial year. Openreach is passing 26,000 new premises with full fibre each week. Full fibre networks have now passed 11% of UK homes and businesses.

6 We want to go further. With the right fiscal, regulatory and legislative enablers in place we are prepared to commit funding to Openreach to connect 15 million premises (c.50% of the total) across the UK to full fibre by 2025. This Bill is therefore a welcome step on the road.

7 However, a vital additional step would be a business rates exemption on upgrading the copper network to fibre – and we hope that this will be part of the forthcoming Budget. The current arrangements mean that BT’s overall business rates B ill increases every time and as soon as we replace an existing "superfast" copper broadband line with a full fibre one .

8 We are also encouraging further measures to be taken to support full fibre investment and deployment:
a) reforming ‘wayleave’ rules to make it easier to lay new fibre all around the UK.
b) legislating for all newly-built homes to have open access fibre connectivity.

c) a harmonised UK-wide regime for permitting street works to lay fibre.

d) the ability for fibre builders to make use of other utilities’ (gas, water & electricity) infrastructure in order to deliver a new fibre network at realistic prices and on sensible terms.
e) an immigration regime that is supportive of bringing in the required workforce.

f) a regulatory regime that aligns with the Government’s Statement of Strategic Priorities (SSP) for Ofcom.

Improving the Bill
Maximising the potential of the new ‘fast track’ access to building process

9 Clause 1 (Para. 27B) explicitly restricts the ability to trigger the Bill’s provisions to the tenants of a building, who must request a service. This dramatically reduces the likely benefit it will deliver, as deployment cannot take place proactively when engineering teams are in place and ready. Part of the reason for needing the Bill in the first place is to ensure that MDUs are passed with fibre at the same time as other premises in the area. This legislation takes some of the barriers to doing so away but keeps others in place.

10 This provision also restricts the Bill’s scope to support the deployment of new or upgraded 5G mobile infrastructure. Although it is possible that they may be able to receive 5G, it is unlikely that a tenant is going to make such a request in the context of a new mobile site placed on the top of their building. as it would be unclear as to whether they would receive coverage. The area around that building would however benefit . Ideally, the scope of the Bi ll should be broadened to ensure that an operator or a tenant can make such a request , and that there is maximum scope for the B ill to support network builders to deliver ‘gigabit capable’ connectivity to all by 2025.

11 If the Government felt unable to amend the B ill in this way , we would appreciate a clarification from Ministers that a tenant can, if they wish, use its provisions to secure the benefits of all electronic communications services including fixed line fibre services and equipment necessary to deliver 5G mobile. While this is less than optima l , such a clarification would help to ensure that the existing provisions offer at least some technology neutral benefits in terms of supporting ‘gigabit capable’ connectivity growth across the UK.

12 In our view, ensuring that this B ill is indeed applicable in a mobile context would have very real benefits not least in reducing the amount of resource already required to cover legal fees for cases bought under the Electronic Communication Code (ECC) that could otherwise be spent on new infrastructure deployment. During 2 nd Reading, the Government stated that the B ill could save operators £14,000 per application to the court for access in the event of an unresponsive landlord. Ministers also stated that the existing legal process that exists can take six to seven months. BT has attempted to use this process on a number of occasions for new mobile sites. In our experience, costs can be double this amount on a per application basis.

Removing the time limit within which the new rights can apply

13 Clause 1 (Para. 27G) provides temporary access rights for an 18-month period, after which the landlord must consent to the infrastructure being there, or an operator must use an alternative and more cumbersome legal process to keep its infrastructure in place and maintain it.

14 This provision also considerably restricts the potential benefits the Bill could have for accelerating 5G and fixed infrastructure deployment in urban areas, as operators will need to decide whether to take a clear risk in install ing equipment. In particular, a n operator may have to deliver 5G coverage to an area and then remove it again, creating considerable disruption for consumers and businesses. Mobile operators also need ongoing access to infrastructure for maintenance to a greater degree than fixed operators do.

15 We do not believe that it is necessary to "incentivise" operators to continue to try to contact a landlord in order to reach a consensual agreement to install communications equipment. Our preference as a network builder will always be to reach a mutually acceptable arrangement, as opposed to o ne imposed by a court. The practicality of delivering a new mobile site depends on there being scope to vary the arrangements for access and maintenance of that site on a case-by-case basis. A court-imposed agreement prevents this.

16 We are also concerned that the B ill imposes a period of 18 months within which its provisions can apply with no explanation of why this period has been chosen . The proposal was included in the B ill without any consultation of industry. We suggest that if there must be a ‘time limit’, its length should be subject to further consultation and set out in secondary legislation, rather than on the face of the B ill . The B ill should be amended accordingly .

Ensuring landl o rds subject to this B ill engage positively with network builders.

17 Clause 1 (Para 27D) effectively allows requires only that a landlord "otherwise acknowledges the request notice in writing" to avoid that landlord being subject to the process the B ill introduces . There is no requirement for the landlord to enter negotiations with a network builder over terms of access . The ‘bar’ is, in this way, set far too low. There is no requirement that would require a landlord to negotiate the terms of access to their property in good faith. In practical terms, an ‘acknowledgement ’ could simply say "tha nk you for your letter" and the process this B ill is seeking to introduce c ould technically end there .

18 The Government, in responding to its consultation on this issue, stated that a "substantive response" from a landlord would be enough to take them out of the scope of this B ill. The B ill as drafted does not require the landlord to make a substantive response. It should be amended accordingly.

Streamlining & r esourcing the t ribunal process

19 We are concerned that Clause 1 (Para 27E) creates so many conditions for the application of the ‘fast track process ’ it is seeking to introduce that its application may be far more limited than is needed. There are also no timescales set out for the courts to make the order giving a network builder access to a property if satisfied that all grounds for doing so are met . We suggest a timeframe of 45 days is reasonable. As matters stand, the process for an operator to gain a court order for interim access rights to a property to install communications equipment under the ECC is about four to six weeks [1] . We do not see why the process set out by this B ill should run for any long er .

February 2020