I hear some very confused, even wrong advice from the telecoms industry regarding the state aid process and how it relates to existing network operators – again – but it can be critical to your business to know your Open Market Review from a Public Consultation.
From the beginning, when an organisation – any organisation – wants to use public money to roll-out broadband it needs to go through a state aid process.
Even small investments, so-called ‘de minimis aid‘, need to go through this process although they may not have to notify the European Commission as the final step – de minimis aid is still aid and needs to obey the same rules as any other aid, it’s just considered too small to have a significant distorting impact on the market so the Commission doesn’t need to specifically rule on it.
For large interventions it’s considered very good practice to carry out an Open Market Review (OMR) and BDUK will typically insist on it. This is not a mandatory or even binding stage, and is simply used by the aid recipient to better understand the landscape in which they plan to intervene. The advice to existent network operators is that it is very helpful to reply to any OMRs that affect your but it is not absolutely “live or die” essential.
As pragmatic advice, I’d recommend that wireless operators specifically do consider submitting to OMRs as it can take longer to agree the coverage, especially for superfast NGA wireless networks. Starting that discussion early maximises the opportunity to press your case.
However, all interventions must carry out a Public Consultation which provides the one and only opportunity for anyone affected by the plans to provide their feedback. The Consultation has to remain open for a month and will contain maps and data which expresses the organisations best understanding of where they feel they can intervene and where specifically they plan to intervene; this will often be informed by the OMR process but is not limited to it.
The Public Consultation is a mandatory step in the State Aid process and formalises the area which the aid recipient can spend public money. Once the consultation is closed and the feedback incorporated a line is drawn in the sand. If a network operator forgot to respond or didn’t see the point, then the subsidy can, in principle, be used to over build you.
It is at the aid recipients discretion how or if they incorporate any plans they receive after the closing deadline. Any decision on their part is likely to be taken on more malleable issues like value for money balanced against the risk and difficulty in changing the binding procurement contracts with suppliers being paid to over-build you. Changes to the intervention area after the consultation has closed are painful and can be expensive
Even if you made a submission to the non-binding, non-mandatory OMR send one to the binding and mandatory Public Consultation.
As friendly advice in plain language:If you don’t submit anything to a Public Consultation that effects your business, even if it was because of flawed advice, then please don’t complain if your business then suffers.
There is a lot of mythology and bad advice in the sector at the moment so before you decide on a course of action, especially if that involves not responding to a process, carefully check your position.
As a personal note, I’ve always been happy to help companies to understand what is an esoteric process and to help protect their business but I don’t enjoy digging operators out of a hole after the event.