UK: Where To From Here: The Future Of Broadband Regulation In The UK

Last Updated: 19 October 2018
Article by Annemaree McDonoguh

With access to broadband increasingly seen as a necessity for not only economic growth but also participation and cohesion in society,  the focus on the slow pace of rollout of full fibre to the home in the United Kingdom remains as intense as ever.  This article reviews the latest statement by the Government on the future of broadband regulation in the UK and considers who are the likely winners and lose

Solving the Dilemma of Full Fibre

While 95% of UK premises are connected to superfast broadband provided over fibre to the cabinet or cable, only 4% of premises have the benefit of full fibre or fibre to the premise (FTTP).   The question is, how does the UK move from 4% coverage to the Government's more ambitious targets of 15 million premises connected by 2025 and coverage across the UK as a whole by 2033, given the expense of rolling out full fibre networks.

Do you rely on market forces and competition alone?   Do you take a hybrid approach and rely on competition in those areas where full fibre is commercially viable and provide Government support for those areas where rolling out a full fibre network is unlikely to be commercial?   Or do you, if you cease to be a member of the European Union take a more bold stand that that previously allowed within the  European Commission state aid rules as suggested by Michael Gove earlier this year in comments to the national farming federation1  or alternatively by legislating to prevent overbuild of networks as they are being built out.

We now at least seem to have an answer. The answer as laid out in the Government's Future Telecoms Infrastructure Review  (the Review) 2   is to stick with competition with government intervention only where necessary.   The Government is clear in the Review that its priority is promoting investment as opposed to interventions to reduce retail prices.

It is this priority and a set of accompanying outcomes that will form the basis of the Government's statement to Ofcom under the Digital Economy Act 2017. Once this statement is made, Ofcom will be required to have regard to this strategic statement when carrying out its regulatory functions.

In order to prioritise investment, the Government outlines the following outcomes it wishes to see occur:

  • The provision of greater regulatory stability and clarity through longer market review periods of 5 years and also greater clarity from Ofcom on its application of the "fair bet" principle to operators who are making large and risky investments.
  • Ofcom to consider forbearance of regulation where appropriate in order to incentivise the rollout of full fibre networks.
  • Flexibility for operators to use approaches such as agreed migration from copper to fibre or co-investment to reduce the risk of building full fibre networks.
  • Ofcom to consider regulating based on different geographical markets as opposed to a national geographic market. The Government indicated that it considered it likely that there would be three different geographical areas in terms of a broadband model of regulation:
    •  Areas that can support commercial rollout of two or more gigabit capable networks;
    •  Areas that can support commercial rollout of single fibre networks
    • Areas that are unable to support commercial rollout.

On the fair bet point, the Review encourages Ofcom to publish clear guidance that clearly sets  out the approach that would be taken by Ofcom and information that Ofcom would use in calculating a "fair bet" return so that investors can factor this into their decision making ahead of making major investments.

Outside In

The review also makes clear that while commercial build is happening its intention is not to abandon citizens in those areas who are unlikely to be targeted by commercial operators. And indeed rather than looking for government funded networks to creep out from the edges of commercial networks as often been the case the Government has committed to build "outside in" beginning with the most remote and difficult to reach premises.    Exactly where the Government will find the £3 to £5 billion to ensure this roll out however is not made clear in this paper and the question of funding this arrangement is left to the Autumn spending review.

Addressing Barriers to deploying networks

On a more practical level, the Review also indicates that the Government plans to introduce new legislation to assist in addressing ongoing barriers to deploying networks.   These proposed interventions include:

  • Treating telecoms equivalently to gas, water and energy by providing a "right to entry" to allow an operator to build a connection. A landlord would be given notification of an operator's intention to access a property with a magistrate providing the warrant to entry.
  • New legislation to ensure as a backstop that all new build developments are connected with full fibre which offer s choice at the retail level for homeowners. The backstop obligation would apply to both operators and developers and the legislation would provide both a floor and a ceiling of cost per premises.

Both of these new interventions will be consulted on in the Autumn but it is easy to see that these suggested interventions are unlikely to be quick wins.  A system for obtaining a warrant to entry from a magistrate is unlikely to be quick or easy for operators to utilise and there are likely to be extensive arguments between developers and operators around the proposal to place liability on them.  In addition, given that Autumn is likely to coincide with the peak Brexit negotiation period, it is unclear how much bandwidth either civil servants or politicians will have to deal with these issues and it seems probably that we will see further work on these proposals being delayed.

Are there winner and losers from this statement?

The clearest loser from this  Review in our view is undoubtedly Ofcom.  The Government's  statement of its strategic priority as investment rather than retail price reductions seems to indicate that the Government views Ofcom's previous decision as much more geared towards the reduction of prices which of course makes for headline friendly press releases.    The Government's strategic priority statement will clearly guide Ofcom towards decision making that by its nature in terms of stimulating new network build may be less headline friendly in the short term.

In terms of telecoms operators the Review is mixed news.  Whilst many of the measures might be seen to be favourable to BT, there is a potential sting in the tale for BT in the form of a warning by the Government about further separation of Openreach.  However at the same time, other operators who are building their own networks and who had lobbied the Government to regulate Openreach in its overbuilding of those networks have had those requests rejected.  The Review states that the "Government is not persuaded that "overbuild" should be discouraged  although it also is t is encouraging Openreach and Ofcom to consider how greater transparency about build can be shared to give alternative operators either the choice to compete with Openreach or to prioritise build elsewhere.

In terms of the Government's threat to Openreach on separation however, the Review makes clear that the Government expects to see Openreach prioritise future investment in full fibre and that the Government considers that it is too early to consider whether the current legal separation of Openreach is sufficient to deliver the changes on full fibre investment that it expects to see.

It goes on to say that if BT Group fails to deliver on its commitments or Openreac h remains unresponsive to the needs of its downstream customers in terms of its investment than the Government will consider all additional measures.   This not even veiled threat also of course holds greater sway given the UK's  exit from the EU and the possibility that if there is no deal, the Government would be free from compliance with the EU rules on market reviews as early as April 2019 and therefore could act on full separation without any heed to the EU rules.

Indeed not long after the Review Openeach issued a statement saying that it was accelerating its full fibre plans and reducing its G fast plans. However this still represents 7.5 million premises being connected to G Fast and only 3 million premises being connected to full fibre over the next two years which would result in a total of 5.5 milliion premises being connected to full fibre by 2020.   Whether this will be sufficient for the Government remains a wait and see question.  Of course  it may be that investors will achieve the offloading of Openreach ahead of that, given their push to have BT consider spinning off Openeach in order to boost the low share price.3





The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions