Government’s National Broadband Plan could face legal challenge

The largest broadband intervention yet by the State could run into legal difficulty and face significant delays. The Government’s National Broadband Plan which intends to deliver high-speed broadband to 750,000 homes and businesses by 2020 is expected to cost up to €500m to implement.

The Government has allocated €275m for the project so far.

A tender process has been launched to begin the process of finding a successful bidder, or bidders, for the project which divides the country into two areas.

The Government has settled on just two areas — the Border, midlands and western region and the south-eastern region — rather than three, following feedback from bidders who felt it would offer greater scale and be less risky.

In an update, the Government pushed ahead with plans to provide broadband to the 750,000 addresses it originally identified as being in areas outside of those covered by commercial operators, despite plans by Eir to introduce services to 300,000 of those businesses and homes.

Eir’s proposal was not included in the plan as it didn’t meet certain criteria, according to the Department of Communications, Energy and Natural Resources.

A further five proposals from other operators also failed to meet the criteria which covers a range of technical, financial and deployment issues.

The intention of Eir and the National Broadband Plan to provide broadband services to 300,000 addresses could potentially put the two parties on a collision course as the Government is prohibited under EU state aid rules from providing services in an area where a commercial operator has plans.

Any potential legal action could see the European Commission ultimately prevent the Government from intervening in the areas identified by the telecommunications company.

A spokesperson for Eir said the company fully intends to follow through on its plans to offer services to those households and said there would be “no need” for legal action as the National Broadband Plan map can be updated to reflect its investments as they are made.

As the company’s initial investment plan hasn’t satisfied the criteria there is no guarantee that future proposals will either, however.

“We have a number of advisers and internal staff that look at technical, financial and deployment plans from the operators and we’ve carried out significant reviews of all those plans and when those plans are assessed to our satisfaction we then require each individual company that has provided a plan to us to sign a commitment agreement for the minister.

“To date, none of the six that we’ve assessed have satisfied us with all those criteria and therefore we weren’t in the position to include any of those investment plans on our map,” said Department of Communications programme director Fergal Mulligan.

The department said there is not necessarily any cutoff point after which the map detailing the areas covered by the National Broadband Plan cannot be changed.

Under the plan it is envisaged that 750,000 households, or 1.8m citizens, across 96% of the country’s land mass will have a minimum of 30Mbps download speed and upload speed of 6Mbps.

Six companies are vying for the contract including Eir; the ESB-Vodafone joint venture, Siro; eNet and Imagine.