CityFibre (a UK wholesale fibre access network builder) has lost its appeal to the Competition Appeal Tribunal. The appeal related to Ofcom’s decision to approve Openreach’s Equinox wholesale broadband offer in September 2021, which, in summary, gave ISPs cheaper prices for Openreach fibre-to-the-premises (FTTP) products, so long as they met targets to connect the majority of new lines to Openreach’s FTTP where available (as opposed to legacy broadband products).

Alternative fibre access network builders such as CityFibre were unhappy with Ofcom’s decision, asserting that the offer hinders competition and works towards pricing out alternative options, which are predominantly in early stages of development.

In the tribunal’s decision, they unanimously rejected CityFibre’s appeal, stating that a court should be cautious about interfering with a consultation process carried out by an expert regulator. They held that while the consultation process may have had flaws, it was not “so flawed” as to be unlawful, with not prejudice being suffered by CityFibre regardless. CityFibre has stated that the decision is disappointing and has concerns about the precedent it sets which will likely lead to similar offers being made from Openreach.

However, CityFibre highlighted in its response that the Tribunal had been critical of Ofcom’s approach to its review, noting the comments made by the Tribunal on the consultation process and its failure to provide clear and consistent guidance to those making very significant investment commitments on the basis of Ofcom’s policy decisions. The decision will therefore likely be taken into account by Ofcom, with CityFibre stating it hopes that Ofcom will become proactive in scrutinising any future offers if it wants to maintain competition and protect investment.