Complaint from Cumbria Highways against Omne Telecommunications Limited about Funds for Liabilities

09 May 2005

Complaint from Cumbria Highways against Omne Telecommunications Limited about Funds for Liabilities

Complainant: Cumbria Highways
Complaint against: Omne Telecommunications Limited ("Omne")
Case opened: 28 January 2005
Case closed: 6 May 2005
Issue: Whether Omne has complied with its obligations to ensure that sufficient funds are available to meet specified liabilities, which may arise as a result of it exercising its rights under Schedule 2 to the Telecommunications Act 1984 as amended by Schedule 3 to the Communications Act 2003 (the "Electronic Communications Code")
Relevant instrument: Regulation 16 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 ("the Regulations").

Ofcom received a complaint from Cumbria Highways alleging that Omne had failed to comply with Regulation 16 of the Regulations, in that Omne had not provided a certificate to Ofcom stating, amongst other things, that Omne had put funds in place in compliance with the Regulations, or the amount of funds provided for.

Omne has now supplied a certificate to Ofcom signed by a relevant Director of its Board, stating that Omne has fulfilled its duty to put funds in place in compliance with the Regulations. Omne has also provided a copy of the instrument which will provide the funds, together with details of the methodology used to calculate the amount of funds for liabilities. Ofcom considers that the methodology used by Omne does not appear to be inconsistent with Ofcom's guidance set out on Ofcom's website http://www.ofcom.org.uk/telecoms/ioi/e_c_c/ffl/?a=87101

Given the provision of the certificate by Omne and Ofcom's view that the methodology used by Omne to assess its funds for liabilities does not appear to be inconsistent with the guidance set out on Ofcom's website, Ofcom has therefore closed this investigation.

Case Leader: Ruth Gibson (e-mail: ruth.gibson@ofcom.org.uk)
Case Reference: CW/00812/01/05

Text published when the case was opened

Complaint from Cumbria Highways against Omne Telecommunications Limited about Funds for Liabilities

Complainant: Cumbria Highways
Complaint against: Omne Telecommunications Limited
Case opened: 28 January 2005
Issue: Whether Omne has complied with its obligations to ensure that sufficient funds are available to meet specified liabilities, which may arise as a result of it exercising its rights under Schedule 2 to the Telecommunications Act 1984 as amended by Schedule 3 to the Communications Act 2003 (the "Electronic Communications Code").
Relevant instrument: Regulation 16 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (the "Regulations").

Cumbria Highways, a partnership between Cumbria County Council and Capita, has alleged that the company formerly known as Omne Communications Limited, now known as Wightcable North Limited, through its subsidiary company Omne Telecommunications Limited ("Omne"), has failed to comply with Regulation 16 of the Regulations. It is alleged that Omne has not provided a certificate to Ofcom which confirmed, amongst other things, the amount of funds which have been provided to meet various specified liabilities.

Under Regulation 16 of the Regulations, Code Operators (as defined in the Regulations) must ensure that sufficient funds are available to meet specified liabilities (as defined in the Regulations) which may arise from the exercise of rights by a Code Operator under paragraph 9 of the Electronic Communications Code.

Where Code Operators have previously exercised their rights under the Electronic Communications Code, they are required to provide a certificate to Ofcom on 1 April each year, from 1 April 2004. The certificate shall, in the case of a company state:

  1. that in the Code Operator's Board's reasonable opinion, the Code Operator has fulfilled its duty to put funds in place in compliance with the Regulations, and shall state the systems and processes which enabled the Board to form that opinion; and
  2. the amount of funds which have been provided for.
    The certificate should be accompanied by a copy of the relevant instrument which will provide the funds.

Where Code Operators have not previously exercised any rights conferred by the Electronic Communications Code, they are required to provide Ofcom with such a certificate two weeks before they exercise such rights.

Omne is a Code Operator under the Regulations [see list of Code Operators]. Ofcom has not received the relevant certificate from Omne. Currently, therefore, Omne has not filed the required certificate and Ofcom has no means to assess whether Omne has ensured that sufficient funds are in place to meet its liabilities under the Regulations.

Ofcom has therefore opened an investigation into whether Omne is complying with the relevant provisions of the Regulations.

Case Leader: Ruth Gibson (e-mail: Ruth.Gibson@ofcom.org.uk)
Case Reference: CW/00812/01/05