Complaint from BT against Talk Talk about an unfair contract term

17 June 2005

Complainant: British Telecommunications plc ("BT")
Complaint against: TalkTalk Telecom Limited ("Talk Talk")
Case opened: 17 February 2005
Case closed: 16 June 2005
Issue: The use of a negative opt-out term in consumer contracts to migrate customers from Carrier Pre Selection ("CPS") services to Wholesale Line Rental ("WLR") services.
Relevant instrument: Unfair Terms in Consumer Contracts Regulations 1999 (the "Regulations")

Ofcom received a complaint from BT about a term in Talk Talk's consumer contracts, which purported to allow Talk Talk to migrate CPS customers to WLR without their express consent. The clause in its original form stated:

"2.7 In the event that future changes to the way in which we purchase telecommunications services from BT and other network access operators permit us to take over responsibility for your telephone connection, including the billing of your line rental charge, we will write to you notifying you of such a change. You will have an opportunity to register your objection to such a change with us prior to our takeover of such responsibility. If we do not receive written notification that you do not want us to take over responsibility for your telephone connection in this way we will notify you of the date on which such takeover will take effect."

Ofcom considered that the above clause may be potentially unfair under the Regulations and opened an investigation. During the course of the investigation, Carphone Warehouse, which is the parent company of Talk Talk, provided Ofcom with an undertaking to amend its consumer contract. The proposed revisions to TalkTalk's consumer contracts have met Ofcom's concerns, and on this basis, Ofcom has concluded its investigation.

It should be noted that Ofcom does not have the power to "clear" terms under the Regulations. Only a court has the power to determine whether a term is unfair under the Regulations. Ofcom is therefore able to consider any further complaints regarding this or any other contractual terms and conditions.

Case Leader: Marvin Luttrell ( e-mail: marvin.luttrell@ofcom.org.uk)
Case Reference: CW/00816/02/05

Text published when the case was opened

Complaint from BT against Talk Talk about an unfair contract term

Complainant: British Telecommunications plc ("BT")
Complaint against: TalkTalk Telecom Limited ("Talk Talk")
Case opened: 17 February 2005
Issue: The use of a negative opt-out term in consumer contracts to migrate customers from Carrier Pre Selection ("CPS") services to Wholesale Line Rental ("WLR") services.
Relevant instrument: Unfair Terms in Consumer Contracts Regulations 1999.

Ofcom has received a complaint from BT alleging that Talk Talk have included a negative opt-out term in their consumer contracts, which allow that company to migrate customers from CPS to WLR without the express consent of the consumer. BT's allegation is that such a term is unfair for the purposes of the Unfair Terms in Consumer Contract Regulations 1999.

Ofcom has opened an investigation to determine whether the term in question in Talk Talk's contracts may be unfair.

Case Leader: Marvin Luttrell ( e-mail: marvin.luttrell@ofcom.org.uk)
Case Reference: CW/00816/02/05