Complainant: Ofcom own-initiative investigation
Investigation against: British Telecommunications plc (“BT”)
Case opened: 15 November 2013
Case closed: 17 March 2014
Issue: Compliance with the requirement to provide information to Ofcom in accordance with section 135 of the Communications Act 2003 (“the Act”)
Relevant instrument: Section 135 of the Act and a notice dated 13 May 2013 to BT issued under section 135 of the Act.
On 13 May 2013, Ofcom issued a notice to BT under section 135 of the Act (the “13 May Information Request”)(-1-) for the purpose of investigating certain matters pertaining to fault rates that had been remitted to Ofcom by the Competition Appeal Tribunal (“CAT”) and Competition Commission (“CC”) following an appeal of the statement Charge control review for LLU and WLR services (“the 2012 Statement”)(-2-) setting charge controls for BT’s Local Loop Unbundling (“LLU”) and Wholesale Line Rental (“WLR”) services. Ofcom was directed by the CAT, in an Order dated 29 April 2013, to correct the error identified by the CC in relation to fault rates and to amend the charge controls accordingly as soon as reasonably practicable.(-3-)
The 13 May Information Request required, among other things, the provision by BT of the total quantity of faults, impairments or imperfections on the Openreach local access network reported by Communications Providers for the period 1 April 2008 to 1 February 2013.
On 31 May 2013 and 3 June 2013, BT provided information conforming to that required for the period 26 March 2011 to 15 March 2013. In respect of the period pre-March 2011, BT’s response stated that data prior to 26 March 2011 was not available in line with BT’s Information Retention Policy.
It subsequently became apparent in further proceedings before the CAT that BT held data on fault rates in relation to the period pre-March 2011, which should have been, but was not, provided by way of response to the 13 May Information Request. Following a further request from Ofcom, that information was provided to Ofcom on 15 November 2013.
Ofcom made a correction to the charge controls on 19 December 2013 (taking effect the following day), in accordance with the CAT’s Order of 29 April 2013.(-4-) This correction resulted in a reduction in the charge for MPF rental of £0.34.(-5-) BT’s failure to respond properly to the 13 May Information Request, delayed this correction.
Ofcom has investigated BT’s conduct in relation to the provision of information required under the 13 May Information Request. In particular, Ofcom requested an explanation from BT as to why the pre-March 2011 fault rates data was not provided by BT in response to the 13 May Information Request.
In response, BT has accepted that the information provided to Ofcom on 15 November 2013 should have been provided in response to the 13 May Information Request. BT has explained that its team responding to the 13 May Information Request made a mistake in its approach to responding to Ofcom’s request and that this mistake was not identified at the appropriate time because an independent review of BT’s response did not take place. BT has apologised for this error and for the resulting delay to the correction to the charge controls.
As a result of this error, BT has agreed to repay to each of its MPF consumers the difference between what they have paid and the amount that they would have paid but for BT’s error. This amounts to a repayment to BT’s MPF customers of over £1,200,000 (in aggregate).
BT has also provided Ofcom with a number of assurances as to its future conduct in relation to information requests, including appropriate oversight from senior management. As a result of BT’s acceptance of its error and the repayments made to MPF customers, Ofcom has closed its investigation into BT’s conduct.
Ofcom would remind all stakeholders of the mandatory nature of requests for information issued under section 135 and 136 of the Act. In cases of non-compliance with those provisions, Ofcom will take enforcement action as appropriate pursuant to its powers under section 138 to 144 of the Act.(-6-)
1.- Ofcom has statutory information gathering powers under sections 135 and 136 of the Act that enable it to obtain information as it considers necessary for the purposes of carrying out its functions under Chapter 1 of the Act.
3.- At copy of the CAT’s Order is available at: http://www.catribunal.org.uk/files/1192-93_BSkyB;BT_Ruling_290413.pdf
6.- Sections 138 to 144 of the Act specify the enforcement powers that Ofcom has in relation to contravention of information requirements and the offences that may be committed in connection with the information requirements. Section 138 and 139 provide for financial penalties of up to £2,000,000 for non-compliance with the requirements of section 135 and 136 of the Act. Section 144 of the Act provides that it is a criminal offence to fail to provide information requested by Ofcom under section 135 and 136 of the Act.