U.K. incumbent no longer required to offer physical access to rivals following competition tribunal ruling.
Openreach on Tuesday scrapped plans to offer dark fibre access (DFA) from 1 October, after the Competition Appeal Tribunal (CAT) earlier ruled that regulator Ofcom made mistakes when it ordered the U.K. incumbent to make it available.
As part of its Business Connectivity Market Review (BCMR), Ofcom concluded that BT’s infrastructure arm should be required to offer DFA in areas of the country where it holds significant market power (SMP), which it said was everywhere except Central London and Hull.
BT and other network operators including Virgin Media, KCom and CityFibre opposed the plan, warning that DFA would discourage operators from building their own infrastructure, and that giving rivals physical access to unlit fibre risked causing a greater number of network outages.
BT appealed Ofcom’s plan at the CAT, which in late July quashed the watchdog’s decisions (PDF) on the grounds that they were based on inaccurate market definitions.
Specifically, the CAT ruled that Ofcom was wrong to define a single product market for contemporary interface symmetric broadband origination (CISBO) services – which covers leased line services using modern interfaces, including Ethernet and WDM – of all bandwidths.
Ofcom was also ruled to have erred when it concluded that the rest of the U.K. (RoUK) comprises a single geographic market. Ofcom was also wrong in its determination of the boundary between the competitive core segments and terminating segments of BT’s network.
"Given the [CAT] ruling and after discussions between Ofcom and various parties involved, Openreach won’t be launching a Dark Fibre Access product on 1 October 2017," said Openreach, in a statement emailed to Total Telecom.
"We’ve been working closely with our communications provider customers for over a year to develop this product, and we remain keen to discuss any service that could meet their needs," the company said.
CityFibre, which was opposed to Openreach offering DFA, welcomed the decision.
"As one of the U.K.’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," said Mark Collins, director of strategy and public affairs at CityFibre.
He urged Ofcom to go back to the drawing board and come up with new remedies that support increased investment in full fibre networks, "rather than continuing to drive increased dependency on Openreach."