Virgin Media and BT are challenging a decision of the European Commission to approve (from a state aid point of view) Birmingham’s plans to upgrade the City’s fibre optic systems, thus improving the chances of hyper-fast broadband in the near future. Contrast this with the situation in the countryside, where BT is subject to scrutiny by the European Commission in relation to the fact that it is the only bidder who seems to have made it through the BD UK inspired rural broadband bidding processes, which some say allows it to piggyback off of its universal system in the countryside to maintain a position of significant market power.
I have written before about the wasted opportunities in the countryside and the great changes there might have been for innovative radio schemes, which, if not an immediate answer, would have paved the way for a better – and essentially in the future – more exportable system.
However, it won’t just be Birmingham who is paying attention to this particular potential legal battle. Very probably local authorities in Greater Manchester and also Leeds may be looking at the same questions. That is because they are also looking at trying to use public money to pump prime exactly what they want into the local economy through a development of hyper-fast broadband. This won’t be the first time that the European Commission has looked at similar circumstances. It is some considerable time now since Colt looked at upsetting some regional broadband development by local authorities in France.
The “authorities” in Britain, however, should look upon this as an opportunity to get the European Courts to clarify the situation. The difficulty, however, for them may well be being considerably outdone in terms of resources to fund a difficult technically complex matter. Not only are you going to need first class lawyers, starting from leading counsel downwards, but you are also going to need a pretty good set of economists. Moreover, you are going to need a team that does not have a conflict problem with BT or Virgin Media but knows the area.
This is a time when local authorities like Birmingham, Manchester and Leeds should get together and put up a legal team at least as good as that that can be provided by BT and Virgin Media – in other words, they are going to have to find one of the best teams in the UK.
The court on the other hand is going to have difficulty because it is going to have to deal with an appeal relating to one of the most complex areas of European law, in a situation where naturally those with existing networks have a vested interest, but those authorities on the ground trying to encourage industrial technological development and just cannot wait for the investment decisions that come from incumbents. A recipe for a very interesting case!