Investigation into BT’s use of the Deemed Consent Mechanism in relation to the provision of Ethernet Services

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Complainant: Ofcom own-initiative investigation.
Investigation against: British Telecommunications plc (BT)
Case opened: 6 November 2015
Issue: Whether BT’s use of the “Deemed Consent” (as defined in clause 2.3 of the Connectivity Services Agreements (CSAs)) over the period from 1 September 2012 to 31 December 2014 in relation to the provision of certain Ethernet Services was in accordance with the relevant regulatory obligations.
Relevant Instrument: Chapter 1 of Part 2 of the Communications Act 2003.

CW/01170/11/15

Ofcom has opened an investigation into BT’s use of “Deemed Consent” in relation to the provision of Ethernet Services during the period from 1 September 2012 to 31 December 2014. Deemed Consent is a mechanism set out in BT’s CSA, allowing BT to deem, under certain circumstances, that a Communications Provider has consented to an extension of the delivery timeframes for its Ethernet services beyond certain deadlines.

BT is subject to a number of Significant Market Power (SMP) conditions in relation to the provision of Ethernet services, imposed on it in Ofcom’s 8 December 2008 and 28 March 2013 Business Connectivity Market Review (BCMR) statements. These conditions included an obligation on BT to provide its services as soon as reasonably practicable and on fair and reasonable terms. Ofcom has also issued Directions in relation to BT’s compliance with this obligation, imposing certain requirements concerning the timeframes for the provision of BT’s Ethernet services and the making of compensatory payments for late provision of these services.

Ofcom's investigation will examine whether there are reasonable grounds for believing that BT has failed to comply with these obligations.

Ofcom has today also issued its Provisional Conclusions in a dispute between Vodafone and BT concerning BT’s use of Deemed Consent in relation to the provision of Ethernet services during the period from 1 September 2012 to 31 January 2014, available here. The investigation that we have opened today is separate from this dispute.

Case Leader: Samuel Hinkley (samuel.hinkley@ofcom.org.uk)
Case Reference: CW/01170/11/15