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Summary report - Workshop on Institutional aspects of network deployment

This report summarises the informal views expressed by participants on institutional aspects linked to network deployment. Their views were gathered during the online participatory workshop of 22 February 2021 organised as part of the consultation activities foreseen for the review of the Broadband Cost Reduction Directive (BCRD).

The comments thus gathered from institutional stakeholders during the workshop, as well as the feedback received through the public consultation and other consultation activities will feed into the Commission’s evaluation, impact assessment and new legislative proposal. This report does not represent the Commission’s position as regards the subject matter nor does it preclude the final outcome of the process of reviewing the BCRD.

More than a 100 representatives of competent public authorities at different levels (national, regional, local), including those entrusted with the tasks established in the BCRD, from 23 Member States, Norway, Albania and Serbia participated in the online workshop.

The workshop was opened by a key-note speech from Mr. Roberto Viola, Director General of DG CONNECT, who stressed that the COVID-19 pandemic has revealed once more that advanced broadband connectivity is a fundamental service, and called upon all levels of administrations to work together for ensuring the timely deployment of connectivity infrastructure for all European citizens and businesses. Mr. Viola recognized the important role that public administrations have as regards electronic communications network deployment and invited all competent authorities in particular to lighten administrative procedures, ensure coordination between different administrative levels, speed-up the resolution of disputes and facilitate access to public assets.

Mr. Viola underlined that Connectivity is a flagship initiative for the EU’s recovery and resilience. He recalled that Member States are currently developing Recovery and Resilience Plans and stressed that the European Commission and Member States must work together to put these plans into practice and deliver swiftly. In this context, Mr. Viola invited Member States to continue working together to identify best practices that support efficient network deployment and to agree the Connectivity Toolbox by end of March.

Mr. Viola highlighted that the review of the BCRD is part of common EU efforts to improve digital connectivity, as the new legislative instrument is needed to facilitate and incentivise the roll-out of advanced and sustainable electronic communications networks by lowering the costs of deployment through a set of harmonised measures. Finally, he invited all participants to actively contribute to the workshop discussions, an overall to the BCRD review, as well as to work together to ensure that the new instrument will bring simplification and burden reduction and will be effectively implemented on the ground.

Summary of the main views gathered from the participants

1. The COVID-19 pandemic crisis has revealed the increased dependency of our society on advanced electronic communication networks, which are called to play a central role for all citizens and businesses.

2. The local authorities play a very important role in speeding up the roll-out of electronic communication networks and they should enhance coordination among them, as well as with other competent public authorities. The local and regional authorities would benefit from enhanced support (e.g.  IT tools, training and information material, knowledge on disputes settlement, etc.).

3. A revised BCRD is critical for electronic communications network deployment. The participants consider that some of the rules that the Directive has put forward are useful but have not been used to their full potential, partly due to the voluntary nature of many provisions. As regards more sustainable electronic communications networks, network sharing and joint deployment could contribute to reaching this objective.

4. The role of the Single Information Points (SIPs), needs to be enhanced (e.g. through geo-referenced and other relevant operational information, improved coordination and transparency, guidelines on access and cost principles, governance, use of digital procedures). Moreover, developing standards and guidelines for in-building infrastructure would help prepare in-building network deployment and facilitate access to in-building infrastructure.

5. The BCRD review might consider facilitating access to publicly owned or publicly funded  assets for installing network elements beyond small-cells, as well as some consistent approaches on deployment techniques used, such as micro-trenching.

6. There is a clear need to improve transparency and issue guidelines in regard to dispute settlement, including by publishing decisions and guidelines for both procedural and technical aspects. The dispute resolution bodies should also take into account the competencies that various public authorities have as regards access to existing physical infrastructure. Dispute resolution could be enhanced thanks to mediation practices.

Participants’ views on Transparency – Single Information Point (SIP) improvements, coordination aspects and access to public infrastructures

As regards the key information and functionalities that SIP should offer, the participants highlighted the importance of including georeferenced information, which should be regularly updated, among the information provided by the SIP. They also indicated that equipping SIPs with tools for automatic conversion of key information as well as using digital format would be an efficient and valuable solution. While some participants called that SIPs provide information beyond the current requirements of BCRD, such as information on spare capacity, some participants pointed out that the status of spare capacity is highly dynamic and, therefore, difficult to provide with accuracy. Participants also observed that some provisions of the BCRD regarding transparency are not mandatory and thus were limiting the effectiveness of the directive and called for more harmonized procedures and better coordination between competent public authorities.

As regards potential centralisation of SIP’s functions within a single body and how to ensure administrative coordination, the participants emphasized the importance of exchanging information in a centralized system, but stressed the need to have broadband offices performing SIP functions at local level, where the needed knowledge and administrative capacity should be built. The participants also recognized the critical role that national broadband plans play in roll-out of electronic communication networks. Some NRAs indicated that, where they ensure SIP transparency related functions, they observed synergies with their regulatory functions. However, some participants favoured allowing users accessing different competent authorities through a single digital platform rather than entrusting a single body with all related tasks. Some regional authorities also suggested the idea of federating regional SIPs, while a national authority would ensure coordination through guidelines, standards, procedures and technical aspects. Some participants also indicated confidentiality as a concern that operators would have as regards information shared through SIP.

As regards the potential future SIP’s role in relation to permit granting, the participants pointed out that competencies for permit granting are mainly distributed at local level while the SIP had been mostly implemented at national level. While some participants explained their positive experience of using SIP as a single entry point for both transparency and permit granting processing related tasks, others argued that this model might not easily work in all Member States. Some participants also shared their positive results of granting several permits for small works in the same area of interest through an aggregated permit granted. Furthermore, the participants agreed that having harmonized permit procedures and using electronic means for permit handling would decrease the administrative burden for both electronic communication networks operators and the concerned public authorities. Moreover, some participants pointed towards the challenge of integrating various information technology systems currently used or under development by various competent authorities concerned.

As regards the access to certain types of infrastructure controlled by public sector bodies (by extending the logic behind Art.57 of EECC), the participants agreed that the review of BCRD should consider this matter and some participants stated that this has been already implemented in some regions. Some participants called for EU guidelines to foster investment in similar conditions beyond small cells, while other participants called for respect of the proportionality principle and well defined criteria in order to avoid overlaps and ensure legal certainty. Some participants also called for further clarifying provisions as regards access to the buildings’ rooftops, as being the most interesting for some operators. Some participants also called for dully consideration of reusing publicly funded/owned facilities (e.g. masts used for emergency systems) suitable for electronic communications network deployment. The participants also agreed that access to public infrastructure should be granted under non-discriminatory terms. Some participants also made the point that the entities in charge of planned public civil works could proactively promote or require the construction of spare physical infrastructure suitable for electronic communication networks, as this would facilitate further availability and access of interested operators to such infrastructure.

Participants’ views on More efficient and transparent dispute resolution and better enforcement

As regards ways of simplifying and making dispute resolution procedures more effective and efficient, the participants indicated the need for clearer, simpler and more transparent procedures, adjustable to national circumstances. Some participants pointed out that publishing the application form for permits would make the request more focused and it would help avoid some disputes. More so, a short mediation process would be useful and sharing the concluded agreements by operators with Dispute Settlement Bodies (DSB) and publishing the final decisions of the DSB would help achieve a wide picture of the market’s situation. Some participants called for a clearer burden of proof on the parties to the dispute resolution that would help to improve the procedure’s effectiveness. Finally, the participants also recognised the need for municipalities to receive adequate training, to gain technical expertise and knowledge of disputes that are relevant to them.

As regards guidelines on dispute settlements (e.g. on procedural aspects, on pricing, etc.), some participants agreed on their added value, in particular for enhancing transparency in aspects like pricing and deployment coordination, and called for developing them at national level. Some participants informed that some Member States had already published such guidelines, while some others had established expert groups to produce such guidelines, for example on infrastructure sharing. While all participants agreed that guidelines would help operators better understand and defend their rights, some participants took the view that as regards pricing, the publication of previous decisions could be sufficient, pointing to the fact that dispute settlement bodies somehow provide guidance through their individual decisions. While some participants explained that some Member States had published some principles concerning infrastructure sharing, and fairness and reasonability of construction costs, opinions varied from mandatory approaches to voluntary ones.

As regards potential benefits brought by setting rules on terms, conditions and prices on access to in-building infrastructure, the participants considered that building owners should have the same obligations as the network operators and agreed on the benefits of having a transparent pricing methodology. Moreover, the participants considered that standardisation of procedures and of technical aspects would be important for ensuring the effectiveness of such provisions. Some participants also called for enhancing the level of commitments for future in-building infrastructure and of transparency, while taking into consideration the autonomy that municipalities enjoy. Furthermore, some participants pointed out the price difference for gaining access to in-building infrastructure in the new buildings compared with the old ones. Finally, some participants considered that the obligation to ensure open and non-discriminatory access to the in-building infrastructure should already be well known in the Member States, but called for clarification on the conditions for gaining access to the buildings’ rooftops, in particular for installing masts and antennae.

As regards eventual enhanced enforcement procedures, while some participants explained the current enforcement systems in their countries, the participants took the view that penalties should be considered as the last resort. However, some participants expressed determination in applying penalties, in particular in case of non-respect of transparency related obligations. A few participants clarified that some enforcement procedures in their respective countries had been conducted on the basis of Significant Market Power (SMP) regulation rather than on BCRD provisions. Some participants also pointed out that interaction between public authorities would be important, as getting access (including as regards the price) to public infrastructure could relate to public relevant tax/fees legislation or local authorities’ prerogatives.