Posts Tagged ‘Ofcom’
The contract for ‘superfast broadband’ that the Welsh Assembly Government (WAG) has signed with BT will deliver less than politicians have promised in public statements, and appears to deal with BT and Openreach as a single entity in violation of a BT regulatory undertaking to “functionally separate” the two.
It also raises questions about the legitimacy of the money given to BT because of how it will be used.
These conclusions come from broadband consultant Richard Brown who has already asked the European Parliament whether the WAG can use SuperFast Cymru money to overbuild the FibreSpeed coverage area which has already received state aid.
Brown obtained a heavily redacted copy of the ‘Superfast-Cymru‘ contract after an eight month battle using the Freedom of Information Act (FOIA). He says the financial, coverage and timing details of the contract are missing, but what remans is still revealing.
He notes that while the contract is between BT Plc and the WAG, it is signed on behalf of BT by outgoing Openreach CEO Liv Garfield.
“There is a legal governance issue (imposed in theory by Ofcom) that each part of the BT group should have ‘Chinese walls’ between them to prevent unfair exposure to competitive information leaking from one wholly owned subsidiary to another,” Brown says.
“There is a fundamental concern that if Openreach is supposed to be a functionally separate organisation, and the CEO of Openreach is the signatory to the contract then information must (by definition) be being passed between Plc and Openreach, in a manner that has been expressly forbidden by the legal undertakings given to Ofcom.”
Brown says WAG ministers are guilty of overpromising in public what the contract will deliver in terms of speed.Ofcom has accepted the European Commission’s definition of “superfast” to mean download speeds of at least 30Mbps.
“The Welsh Government have not contracted BT to enable the delivery of superfast broadband to premises in Wales, simply that the core infrastructure (exchanges and cabinets) will enable a measurement of premises passed to reach a total of 95% for up to 24Mbps speeds,” he says.
This view is confirmed in Clause 21.4 of the contract: “The Grantee acknowledges that the Welsh Ministers will not pay any contribution or subsidy to the Grantee in respect of the Last Drop Connection” ie, the link between the street cabinet and the premises. This rules out WAG support for any fibre to the premises.
The contract commits BT to meet three targets by 30 June 2016 or at the latest by the ‘Drop Dead Date’, which has been redacted:
- 90% coverage of all premises in the ‘intervention area’ at >30Mbps PPiR and a minimum of 2Mbps CIR (committed information rate)
- 95% at >24Mbps with a minimum of 0.5Mbps CIR
- 40% coverage with >100Mbps with a minimum of 10Mbps CIR.
Brown says Target 2 is dismaying. “At no stage have the ministers ever claimed anything lower than 96% coverage for superfast broadband under this contract. It is clear that there is a degree of wishful thinking by the ministers that BT will choose to deliver more than they are contracted to do.”
Brown estimates 30,000 homes and businesses may be disappointed if BT fails to meet the 96% coverage target claimed by ministers. No-one knows who they might be because the post codes of the coverage area are secret.
Brown further believes there is a difference between what the WAG told the European Commission it wanted state aid permission for, and what it is buying from BT. The European Commission’s 2005 decision on state aid in the case of UK’s Rural Broadband Access Programme made it clear that only capital costs are eligible for state aid.
It said “Eligible capital costs such as investments in communications networks and equipment necessary to provide the requested broadband services have to be directly attributable to the project and incurred during the period of the Broadband Service Agreement. No operating costs will be financed.”
According to Brown, the works that are required under that contract appear to enforce requirements on BT that are explicitly not being paid for.
The Superfast Cymru contract requires BT to supply “Operational Works” that consist of maintenance and wholesale services and the sales and support of wholesale services.
Maintenance covers “updating, maintenance, fault management, performance optimisation (when required) and capacity augmentation.” Wholesale services covers “services to enable retail service providers to provide retail services over the network.”
“The inclusion of the clauses compelling BT to deliver such ‘value added’ services, as opposed to them being part of the funded delivery, lends weight to the likelihood that the ministers have assisted BT in being as tax efficient as possible,” Brown says.
Brown believes taxpayers will have to pay BT’s costs to sell them broadband. Clause 16.6 states “…The Welsh Ministers shall only pay Financial Contributions in respect of those marketing activities that the Welsh Ministers have approved in accordance with the Marketing Plan.”
This clause is wholly inappropriate, says Brown. He says Page 4 Section B makes it clear that the grant is a capital grant to BT on the grounds that infrastructure is being purchased.
“Such a commitment by the Welsh Government gives BT a disproportionate market advantage over other wholesale providers, and as such would be considered a significant influence into the market dynamics.”
Brown questions how much money BT will actually contribute to the Superfast Cymru project. The contract caps The WAG’s contribution at £195m. He notes BT has indicated its total investment in Welsh broadband, including its commercial rollout, is £220m. At Clause 21.5 the ministers “acknowledge and accept that the Grantee has made a contribution of a sum at least equal to the Maximum Grant.” That suggests BT’s extra contribution to Superfast Cymru is just £25m.
On the question of VAT, at Clause 21.11 WAG and BT agree between themselves the the contract does not cover payment in consideration of services to the ministers and that the deal is therefore exempt from VAT.
“BT are compelled to deliver wholesale services as a result of this contract (even to the extent that the Ministers have chosen to engage in price manipulation in the market space). Wholesale service provision as a requirement of the contract, does not allow for the contract to be considered as a ‘capital investment’ only contract,” says Brown.
Summing up Brown says the 96% coverage ministers claim will be delivered “does not represent a percentage of homes and businesses that will receive superfast broadband/fibre broadband. The measurement is solely on premises passed. Premises passed is a measurement of presumed capability that considers only the core infrastructure.
“This utterly ignores the capability of the line between the exchange/cabinet and the premise to deliver the faster services.”
Brown referred to the Aus$24bn Australian National Broadband Network, which also used premises passed, and which the head of BT’s NGA rollout Bill Murphy has branded a failure on Twitter.
Brown says “In August the industry press was awash with headlines … which suggest that there are approx. one third of all the (Australian) premises passed that are unable to gain access to the increased service speeds.
“Premises passed is simply not a measure of the amount of the population that will be able to gain access to improved services. It is simply a measure of the capability of the core network – something that will not change Wales’ future, but will certainly enhance BT’s.”
After analysing financial information BT must by law provide to the regulator Ofcom because it has “significant market power” i.e. an effective monopoly in certain markets, Frontier Economics (FE) found that returns on BT’s regulated services were consistently above the rate required to compensate investors, (the weighted average cost of capital as determined by Ofcom), and that wholesale prices could have been on average 10% lower over the period.
The report corroborates an earlier finding by Wik Consult in support of TalkTalk’s complaint to Ofcom that BT indulges in a “margin squeeze” by overcharging for wholesale products. Wik found that Openreach’s costs to build its FTTC network are £4.39 per line per month. BT Openreach charged resellers £7.40 or £9.95 depending on the bandwidth provided.
FE, a top 10 European economic consultancy, is chaired by former UK civil service boss Gus O’Donnell, who is widely known by his initials. On taking over as FE’s chairman in July he said he had come to respect FE “hugely”. “Not only is Frontier at the forefront of applying economics to tough public and private sector issues, it has an internal culture that is second to none.”
The FE report, The Profitability of BT’s Regulated Services, was commissioned by Vodafone. It shows that regulated wholesale prices would have been 10% lower on average, had they been set such that BT had earned a return at the benchmark level set by Ofcom. Because they weren’t, BT was able to earn on average an extra £600m/y for the period.
It found Ofcom is aware BT has been able to earn returns in excess of its cost of capital. It quotes Ofcom’s 2013 consultation on the fixed access market (now being assessed) saying, “BT’s reported profitability was significantly in excess of its cost of capital. We believed that this was prima facie evidence that wholesale charges for ISDN30 might be above the competitive level.”
FE also found that BT had to repay customers for overcharging. “For some markets where BT had cost orientation obligations, BT has been found later to have set prices above a cost oriented level and has been required to make repayments to the purchasing communication providers. The overcharges include £151m for certain Ethernet services and repayments of £42m for certain partial private circuit services.”
FE notes several potential reasons for BT being able to earn regulated returns above its weighted average cost of capital. These include
- differences between Ofcom’s and FE’s estimates of BT’s cost base
- some prices are based on costs that do not directly reflect BT’s actual costs
- BT may price services above its fully allocated costs
- Ofcom may have set RPI-X% charge controls too low, and
- some costs may have been allocated to the wrong service.
“Further analysis is required to understand which combination of these reasons may explain the results shown above,” FE said.
If tomorrow’s meeting to get a grip on the provision of next generation broadband access (NGA) in the “Final 10%” is not to produce a damp squib, the government needs to commit itself to true competition in telecoms market.
Culture minister Maria Miller called the meeting between her, communications minister Ed Vaizey, and representatives from BT, BDUK and six would-be alternative network operators (altnets) who are looking for money from the Rural Community Broadband Fund (RCBF) in the wake of the highly critical National Audit Office report into value for money from the rural broadband process overseen by BDUK.
Some of the six altnets have been waiting more than a year because the fund won’t release the money until it knows for sure that the areas the altnets plan to cover won’t be over-built by BT’s BDUK-funded roll-out.
BT claims commercial confidentiality in the terms and conditions of its contracts with local councils, especially the speed and coverage details of its roll-out, Besides, they are subject to change following a survey of its local assets, it claims.
BT may claim, but the claim does not stand up. In the appeal of Derry vs the Information Commissioner, the Information Tribunal “upheld the ICO view that a written agreement between two parties did not constitute information provided by one of them to the other, and that therefore, a concluded contract between a public authority and a third party does not fall within section 41(1)(a) of the (Freedom of Information) Act.”
S41 is the bit about commercial confidentiality.
The tribunal went on to say, “We are aware that the effect of our conclusion is that the whole of any contract with a public authority may be available to the public, no matter how confidential the content or how clearly expressed the confidentiality provisions incorporated in it, unless another exemption applies.” (Emphasis mine.)
It also noted that depending on the circumstances, some information obtained from a third party may count as confidential. This was information regarding a pre-contractual negotiating position, and “technical information” either contained within the body of a contract or provided as a separate schedule.
Regarding prior negotiating positions: as noted by reader Mike Phillips, the councils last year ran their open market consultations to identify the so-called ‘white areas’, i.e. locations that require subsidy as well as the ‘no-build’ areas that BT would not consider for three years.
It is not clear why BT should be granted the latitude of service delivery promises being “subject to survey” when it is not available to other suppliers, nor that end users should be denied a higher degree of certainty about where, when and what kind of service they might receive from BT.
BT and the local authorities with whom it has contracts might like to argue that the speed and coverage templates (SCTs) falls into the “technical information” category.
BT is not using secret technology to fulfill its BDUK contracts . It is hard to see why it should keep the SCT secret. However, it does stop altnets from identifying and working in the remaining white areas. This cannot in the public interest, and one could argue that for local authorities to think and act otherwise would be in dereliction of their fiduciary duties.
Having sought and received legal opinion on publishing the SCT details, it is inconceivable that BDUK is not aware of these issues. Moreover, in response to a Freedom of Information request, it has indicated that it expects the SCT details to come out in due course.
One need not wonder whether BT will defend its carefully-orchestrated position and resist the disclosure of SCTs. It has form. The FOI trail on Liverpool Direct (BT’s controversial joint venture with the Liverpool City Council) and here and here shows how hard it will fight (but lose) to keep its contracts secret.
Just who will fight BT’s corner has been subject to change. However, it was revealed on Friday that BT had dropped Sean Williams, its head of strategy, who spoke for the telco when the House of Lords was interested in broadband. BT will now be represented by Openreach CEO Liv Garfield and NGA roll-out boss Bill Murphy, who were the original choices.
Had Williams stayed on, Miller would be been within her rights to question his deal-making authority. This is because Ofcom has required BT to run Openreach “functionally separate” from its other operating companies, even though Williams admitted to the lords that Openreach contributes to and shares the same capital pool as the other BT operating companies.
Because of “functional separation” Williams would be have been hard-pressed to commit Openreach to anything. If he could, it would reveal functional separation as a myth and possibly expose Ofcom for improper application of its own regulation.
Whether this matters is moot. At the annual seminar of INCA, the Independent Networks Co-operative Association, last week, Frank Mather, the DG Connect official who looks after the UK broadband issues, said the European view was that Britain has forsaken competition for transparency as a way of regulating and achieving its broadband goals.
The NAO showed how successful that strategy has been with respect to the £1.2bn BDUK process. In fact, both MPs and civil service have done even worse trying to govern using transparency – the banking crisis, Libor, crime statistics, even MPs’ pay, to name some more serious incidents.
In a recent blog, the well-connected Philip Virgo paraphrases economist Michael Beesley’s insight that “it is impossible for officials or regulators to understand that cost bases of the industries they seek to plan or control. Therefore they should not try. They should instead focus on quality of service, price and barriers to competition (particularly those blocking innovative new entrants), leaving those regulated to work out how to exploit opportunities to make more money by using innovation to deliver better services at lower cost. “
Part of Beesley’s heritage is due his exposure to the privatisation of British Telecom in the 1980s. In an obituary, Christopher Foster wrote of Beesley, “Sir Keith Joseph asked him to look into the possibility of liberalising British Telecom. Though not all his recommendations were accepted, he argued for more competition than the government was ready for (it would have been better if he had been listened to). Nonetheless, his views were influential on the form of that privatisation – and all subsequent privatisations, and their regulation.”
Beesley’s ideas were later incorporated in the monopoly price governing formula “Retail Price Index-x%”, which Ofcom modified to “Consumer Price Index-x%” in its latest proposals governing Openreach’s monopoly over wholesale broadband and landline services.
So what can Miller get from tomorrow’s meeting? Clearly BT must give her a bone to throw to the Public Accounts Committee, which meets to discuss the NAO report, to save her face. The (leaked) Pennell report that BDUK “lacks commercial nous” suggests she now has the power to bend her civil servants to her will or to ignore them.
Malcolm Corbett, INCA’s executive director, who will be at the meeting, says altnets will be seeking the following:
- that the six projects in the room get their money and protection against BT overbuilding them for a period
- that BT publishes its actual costs, ie invoices and payslips, for state-aided NGA roll-outs
- that Miller re-opens negotiations on Open Access with respect to BT (and other networks) poles and ducts and even fibre
- that the government allows the introduction of alternative models to gap funding and sources for future roll-outs. (The INCA seminar revealed that the only public money in Stockholm’s highly successful Stokab dark fibre to the premises network was SEK50,000 spent on the feasibility study; the rest came from government and bank loans and re-invested profits.)
One more thing Miller might get. The INCA meeting heard that there is apparently a consultants’ report doing the rounds in BDUK that cross-matches business premises against postcodes and BT’s NGA roll-out. The relationship is inversely proportional, ie the more densely businesses cluster the less likely they are to be passed by BT fibre. This is because BT doesn’t want to swop relatively lucrative leased lines for cheaper broadband connections.
There is plenty of evidence:
- the legal challenge to BDUK’s original Superconnected Cities project
- Virgo’s reportage of BT’s preference to build fibre to the home in sparsely-populated rural Lancashire in competition to B4RN rather than crowded EC1
- former BDUK-community linkman Mike Kiely’s frustrated attempts to get fibre into a Shoreditch co-op that houses 89 mainly high tech start-ups
- a new proposal from BT to Lorne Mitchell’s Goudhurst NGA project, just as they are about to award a contracts, among others.
If true, it shows two things. One is that BT responds only to competition. Secondly, it appears BT is sabotaging Miller’s efforts to build Britain’s economic renaissance on the networked creative, innovative, entrepreneurial sector. Four hundred years ago the heads of those responsible would have decorated London Bridge.
The government’s rural broadband programme will transfer £1.2bn to BT, finish two years late, and rely on civil servants to establish whether it has received value for money.
“The rural broadband project is moving forward late and without the benefit of strong competition to protect public value. For this we will have to rely on the department’s (culture media & sport – DCMS) active use of the controls it has negotiated and strong supervision by Ofcom,” said Amyas Morse, head of the National Audit Office.
The NAO has been investigating whether Broadband Delivery UK, the quango set up in DCMS, will deliver value for money.
It was expected to be critical; the Cabinet Office National Project report recently judged the BDUK project amber/red, meaning it is in danger of missing its targets. Few will have guessed how bad things are.
In the very baldest terms, the NAO said there is £1.2bn available to provide high speed (>24Mbps download) to areas outside BT’s commercial roll-out to two-thirds of the country. All of it will go to BT.
Central government’s contribution is £530m; the balance comes from local authorities’ budgets which are funded by the taxpayer, and BT. BT’s contribution will be 23%, way down on the 36% estimated in 2011.
There are 44 projects that call for 4.6 million houses to have access to ‘next generation’ broadband; BT has already won 26, and it has no competitors.
The original completion date for 90% of homes was May 2015. Last week DCMS increased the coverage target to 95%, and extended the deadline to 2017.
BT said in response, “BT’s fibre programme has been one of the most efficient in the world with the company going further and faster than industry experts thought possible. BT has applied these cost efficiencies to its BDUK work and so the company is delivering excellent value for money.”
It argues there was strong competition when prices were set at the start of the process. “That ensured counties have benefited from the best possible terms.
“Deploying fibre broadband is an expensive long-term business and so it no surprise that others dropped out as the going got tough,” it said.
On the specific claim that BT is likely to contribute 23% of the total funding or some £356m, BT said, “We would like to highlight we have committed more than £500m to date. With more than a third of the contracts yet to be signed, including a very large one in Scotland. We believe we will contribute around 38% of the total funds by the end of the programme, which is well above the 23% claimed in the report.”
Asked why, when the state aid issue delayed things for six months, the deadline is now two years later, BT said, “The timescales for when individual contracts are signed are out of our hands as these are dictated by the individual councils. Our commercial fibre roll out is at least 18 months ahead of schedule so we have proved we can roll out fibre at great pace.”
Few Br0kenTeleph0n3 readers will be surprised by the NAO’s findings. But some might be taken aback by the NAO’s plain-spoken statements of fact. It is rare, given that ‘superfast broadband’ has been such an iconic target for this government, and the vested interest in BT’s on-going attempts to rubbish criticism of the project, that the circumstances have been set out so plainly.
Indeed, the NAO has merely scratched the surface. It could have explored and said much more about why the BDUK Framework process attracted just two bidders from nine invited. These were BT and Fujitsu, which pulled out in March.
It could have said much more about the reasons for the six month delay before the European Commission swallowed its reservations and passed the Framework as fit for purpose. The commission spent weeks waiting for information from BDUK.
However, these would have placed responsibility squarely with individuals, and the tradition here is to apportion responsibility collectively, except in the most egregious circumstances.
That said, some people will have a chance to explain what they have been doing for the past three years. They include Colette Bowe and Ed Richardson, chairman and CEO respectively of Ofcom, the regulatory watchdog that became BT’s lapdog. They will face MPs on the culture, media and sport committee on Tuesday 9 July.
Next up on Monday 15 July are believed to be BT Openreach CEO Liv Garfield and Bill Murphy, MD of BT’s NGA project. They have been invited by culture secretary Maria Miller to face representatives from six alt-nets, including B4RN CEO Barry Forde, who are trying to get the go-ahead to build in the ‘Final 10%’ that BT won’t cover. The trouble is, BT won’t say what it’ll cover and when, leaving the alt-net vulnerable to state-funded competition from BT.
If that meeting agrees that BT is not allowed to overbuild where the alt-nets run, the alt-nets might say it was worth the trip.
Finally the Public Accounts Committee, chaired by Labour leader Margaret Hodge, is likely to want to explore why the Conservatives scrapped Labour’s plan for a national 50Mbps broadband network by 2013, funded by a 50p ‘broadband tax’ on fixed phone lines. But who shall be the victims? Will it be communications minister Ed Vaizey, who has presided over BDUK for the duration. What about BDUK head Rob Sullivan, or Matt Agar, who has been the lynchpin in the BDUK works? Or BT CEO Ian Livingston, who in September is destined for the lords and a job as investment minister at the department of business, innovation and skills? Or his successor, the former Procter & Gamble soap and nappy salesman Gavin Patterson?
Entertaining as such spectacles might be, there is serious work to be done. Ofcom’s role may be crucial. But it may need a shake up. It refuses to accept its decision to allow BT to refuse the use of its physical poles and ducts for third party leased lines had any effect on the BDUK process. Yet this was the main reason why everyone except BT and Fujitsu dropped out of the BDUK framework bid. Geo CEO Chris Smedley was particularly forthright in his comments.
Ofcom suggests he should have gone through proper channels rather than ‘have a slanging match’ in the press. Asked why, if it was aware of the problem BT’s terms and conditions for access to its physical infrastructure (PIA) were causing, it did not consult further, an Ofcom spokesman said it believed its feedback process was clear and transparent and should have been used.
The spokesman felt there may be “a new role” for PIA in future. This might also involve Active Line Access, a standard way for fibre carriers to connect that was developed but not enforced by Ofcom.
(There is more to be said about PIA because it is addressed in detail in Ofcom’s Fixed Access Market Review consultation published the day before the NAO report. But that is for another time.)
Just ahead of the NAO report Ofcom set out a consultation that makes it easier and cheaper for firms that rent fibre from BT to switch.
In a more formal statement referring to the Office of Fair Trading investigation into competition in public sector procurements, which include rural broadband and the still-born £150m Superconnected Cities project, Ofcom said it doesn’t regulate public service procurement or contracts. “Rather, we regulate competition in the private telecoms sector. Likewise, the BDUK programmes are entirely matters for DCMS,” it said.
Whether it can persuade others that is the case remains to be seen.
Because Ofcom’s regulations do not reflect the underlying technology change from time division multiplexing (TDM) to statistically multiplexed packet switching, those who control access to network-based services can and do behave like “slum landlords”.
This observation is contained in a response to an Ofcom consultation on how its regulations need to change so as to not discourage shared works, shared facilities or revenue sharing and rather support mechanisms for this.
Consulting firm Predictable Network Solutions (PNS) told Ofcom “The market and regulatory structure that has emerged is one that requires the monopolist to charge ‘rent’, and where there is no other measure than the rent that is charged, the result is a race to the bottom where monopolists become ‘slum landlords’ and fitness for purpose is entirely lost.
“Money is charged for access to the resource, not for the resultant outcome, and this attitude persists along the value chain, so that all the accumulated risk (that outcomes will not be achieved) is dumped onto the final customer.”
PNS said its work revealed “an emerging pattern that points to structural flaws in the UK telecoms market. In our view, these flaws constitute a substantive risk that many of the potential benefits to the UK of robust, reliable, ubiquitous and cost-effective telecommunications will not be realised.”
It ascribed this to Ofcom’s traditional view that telecoms is about “deterministic and centrally controlled” circuits rather than packets. “The created retail services are, essentially ‘purpose-for-fitness’, in that ‘you get what you get’; there is no specification of what is delivered, and it is the end users’ problem to find a way of exploiting whatever it is. It is this divergence of expectation from delivery that is creating large scale (and costly) hazards,” it said.
PSN said the current market structure has led to a focus only on the rate of financial return on capital investment. This has been to the detriment of service outcomes.
“Where there is fitness for purpose in the current system (eg TDM), it is fitness for a historical purpose, with no flexibility that would encourage innovation. A further consequence of this ‘rental’ model is there is no market for concurrent services to the end user.”
PNS said customers can switch access providers, but they cannot switch service providers, for example one delivering reliable streaming video, one VoIP and one general web access.
To reduce the risk of owning a network but no “tenants” (think Digital Region), incumbents had to work at “large scale”, and rip off competitors with high prices (think of the fight between BT and Sky over TV content) for access to the network.
This also affects wholesale customers. PNS noted that mobile network operators need to backhaul LTE traffic from small cells. TDM circuits are too costly, so they need to use DSL. “However, the lack of any guarantee of the transport characteristics of such connections (ie mass market DSL) makes their use in a RAN [radio access network] problematic, as the protocols employed were developed to work over TDM.”
PNS called for “an underlying carrier that can offer services that are appropriately isolated from each other and differentiated and guaranteed performance characteristics. A competitive market can then develop in delivering concurrent services over this infrastructure (including, but not limited to, non-discriminatory internet access).”
PNS recommended a regime where service providers offer a set of services with well-defined, quantifiable and verifiable outcomes. These could be offered equally well by competing entities, and other players could built further layers of service on top of them.
Note: Other responders were Ofcom’s Advisory Committee for Wales, Arqiva, the Mobile Operators Association, Virgin Media, Vodafone, and the Wireless Infrastructure Group.
BT Openreach’s delivery and repair of Ethernet connections continues to deteriorate, the Office of the Telecommunications Adjudicator (OTA2) reports.
Br0kenTeleph0ne reported earlier that Openreach had suspended a new Ethernet ordering system, Ethernet Access Direct (EAD), on 15 September after communications providers (CPs) had found it didn’t work. EAD is meant to process orders for sub-1Gbps Ethernet connections.
The OTA2 described this as “a disappointing set-back for the Ethernet community”, adding “Given the strategic importance attached to this key development, and the need to ‘get it right’, the decision by Openreach to ‘suspend’ whilst a fundamental re-assessment is undertaken is a decision which is welcomed by the CP community.”
BT said CPs could still place orders through the legacy system that EAD is meant to replace.
In its April report just out, the OTA2 said, “We are still awaiting sight of the plan for restarting the (EAD) programme and CPs are expressing concern that the time taken to get to a clear set of strategic goals for the system and for Openreach to share their thoughts on how any new model will work.”
OTA2 went on to say, “The Ethernet products are experiencing a deteriorating performance – there are problems with the delays in planning and the CPs are reporting increasing frustration with the responsiveness of Openreach in any direct communication (job controller answer times have increased significantly) and the jeopardy and escalation processes don’t seem to be as efficient as needed.”
Problems with Ethernet ordering may also affect perceptions that Openreach ignores the needs of business customers. OTA2 said that during summer (2012) a number of CPs complained to Ofcom that “Openreach was not addressing the needs of business-focused CPs and their customers, leading to unacceptable levels of service for this group of CPs.”
CPs and Openreach started to review possible improvements for copper-based products (WLR, ISDN, MPF and SMPF). “Good progress has been made against the Q1 objectives and those for Q2 agreed,” OTA2 said. “A suite of Business KPIs has been developed, which have identified some key variances with industry as a whole, which are now being collaboratively analysed for root cause and to develop appropriate service improvements.”
In other news OTA2 reported that there were 9.02 million unbundled lines, 6.15 million WLR lines and 2.15 million numbers using CPS.
Credible evidence that BT is charging more than double what it should for wholesale superfast broadband products has probably prompted national regulator Ofcom to investigate a complaint that BT is conducting an illegal margin squeeze.
The evidence is contained in a confidential report commissioned by TalkTalk, currently the biggest user of BT’s local loop unbundling (LLU) products, which made the complaint.
Ofcom presently does not regulate BT infrastructure provider Openreach’s pricing for SFBB fibre products believing to do so would discourage BT’s claimed £2.5bn investment in fibre to the cabinet (FTTC). Openreach’s prices are generally meant to be very close to its costs, especially where it has ‘significant market power’, in this case, outside the Virgin Media Docsis footprint.
The 59 page report found that Openreach’s costs to build its FTTC network are £4.39 per line per month. BT Openreach charges resellers £7.40 or £9.95 depending on the bandwidth provided. Current prices for BT’s Infinity FTTC services start at £13/month and go up to £26/month. BT Retail offers discounted prices of £6.50 and £20 per month respectively for the first three months.
The report, by German telecommunications analysts Wik Consult, is a sequel to its 2012 report to ECTA, the association of European challenger carriers, that found incumbent operators price LLU access so high as to leave no money for LLU carriers to profit or invest in network upgrades or expansion. It showed that LLU had been a failure in Europe, allowing incumbent operators to retain almost 100% of the market.
“At the prices charged for copper, all the cash flows have gone to the incumbent, and entrants have been persistently cashflow negative,” Wik reported, adding the same might become true for access to fibre-based products unless regulators stopped it.
For its report to TalkTalk, Wik modelled Openreach’s costs based on publicly available information. It found the main factors that affect its costs are penetration (take-up of GEA on the FTTC platform), the weighted average cost of capital (WACC) including any risk premium applied to NGA, the extent to which existing ducts can be reused for the installation of fibre between the street cabinet and local exchange, the depreciation method and asset lifetimes.
It checked the results produced by its base model and sensitivity tests against BT’s own statements and evidence from more developed markets in Europe. The checks suggest Wik’s assumptions and conclusions are conservative.
In particular, it suggests that 65% of non-Virgin Media SFBB subscribers will take up an service provided using Openreach infrastructure. Active electronics had a life span of eight years, cabinets and fibre 20 years each, and ducts 40 years, it said.
Almost two years ago Kevin McNulty, Openreach’s general manager for next generation access commercial partners, told Br0kenTeleph0n3 BT’s NGA financial plan was based on a break-even period of 10 to 12 years and a 20% take-up.
For the record, Ofcom announced on 1 May that it would investigate a complaint from TalkTalk Group that alleged BT has been conducting an illegal “margin squeeze” on wholesale access to Generic Ethernet Access (GEA), BT’s FTTC product.
Ofcom said the complaint alleged abuse of “a dominant position in breach of (regulations) in relation to the supply of superfast broadband (‘SFBB’). Specifically, (TalkTalk) alleges that BT has failed to maintain a sufficient margin between its upstream costs and downstream prices, thereby operating an abusive margin squeeze.”
Ofcom said it could investigate such allegations if it had “reasonable grounds” for suspecting a breach.
TalkTalk said in a statement, “We have long maintained that there needs to be tighter regulation in superfast broadband to ensure a level playing field and therefore deliver real benefits for consumers and businesses. We are pleased that Ofcom is taking this matter seriously and have decided there is reasonable suspicion to investigate BT’s fibre pricing.”
BT said it was “disappointed” by Ofcom’s decision.
Ofcom expects to report its initial findings towards the end of the year. It will decide then whether or not to proceed.
The European Commission faces tough questions over its role and commitment to an open, transparent and competitive market for next generation broadband.
News that the Valuation Office Agency is assessing how it plans to tax wireless broadband infrastructure prompted one Br0kenTeleph0n3 reader to ask the European Commission what it thinks of the move.
Mike Phillips of West Chiltington, West Sussex, has been battling to get high speed broadband into his village for years. He wrote to Neelie Kroes, the commission’s Digital Agenda champion, to question the apparent growing bias against fixed wireless broadband. He also asked Ms Kroes what she thought of Fujitsu’s decision not to bid for BDUK contracts, leaving BT with uncontested access to BDUK’s treasure, when EU state aid rules require a competitive process.
The reply came from DG Connect. It noted that nine firms had expressed an interest in BDUK’s money, but “seven of them withdrew during the selection process due to e.g. financial difficulties, change in strategy or preference for different intervention model than investment gap funding”. Fujitsu’s withdrawal would be “unfortunate”.
DG Connect went on to say that local councils can step outside the BDUK framework but still have access to state aid, including BDUK money. “In such cases the local authorities shall comply with the conditions of openness, transparency and non-discrimination when conducting the tender procedure in line with the principles of the national and EU public procurement rules,” it said.
Phillips is not leaving the matter there. He has written back to DG Connect to ask, “Does the EU agree with the principal of state aid being given to an incumbent telco to provide, at best, an overall maximum of 24Mbps, and often less, whilst an established fixed wireless NGA network is available and can be expanded at far less cost?
“Why has the Commission given the fixed wireless industry in the UK a far greater challenge than that given to BT, namely to provide a minimum of 30Mbps and to revisit served premises to upgrade then to fibre when available? BT have publicly stated they will not undertake the latter and cannot provide the former under FTTC.”
There are other questions one should ask. DG Connect’s reply does not mention the main reason BT is the only recipient of BDUK largesse: the game was rigged. Geo’s Chris Smedley, Vtesse’s Aidan Paul and others have been explicit and public on this: the Ofcom-approved terms and conditions attached to third party access to BT’s poles and ducts in rural areas make it impossible to compete against BT. Why does DG Connect ignore this?
In practice BT has made its NGA proposals to local councils subject to non-disclosure agreements. This has hidden the terms and conditions under which BT could receive up to £1.3bn of taxpayers’ money. Is this what DG Connect means by open and transparent?
Virgin Media was responsible for more than half the rise in the UK’s average broadband speed, Ofcom told Br0kenTeleph0n3 today.
Ofcom senior telecommunications analyst Nick Collins said VM has been doubling the speeds of its customers, and this was mainly responsible for the national average broadband speed rising one-third from 9.oMbps to 12.0Mbps in the six months to December 2012.
Collins said the national average reflected a combination of headline speeds and market share. He said these data were confidential as they contained competitively sensitive information. He confirmed that Ofcom looks at these figures in assessing the national average, but does not publish them.
VM’s acceleration programme will end towards the middle of the year, Collins said. At that point growth in the national average is likely to depend mainly on the take-up rate of BT’s Infinity fibre to the cabinet product, which will dilute VM’s influence on the figure.
In February US cable TV firm Liberty Global agreed to buy VM for around $23.3bn. The deal will create a multinational broadband company that covers 45 million homes and serves 25 million customers. Around 80% of its estimated $17bn sales will come from the UK, Germany, Belgium, Switzerland and the Netherlands.
VM’s skills in mobile telephony and B2B networking were cited as key to the future growth of the group. VM CEO Neil Berkett, who will leave the company, said the combined company will be able to grow faster and more profitably by capitalising on the “exciting opportunities” that the digital revolution presents in the UK and across Europe.
Last week Ofcom proposed to make BT cut its prices by 11% a year for each of the next three years for very high speed wholesale services outside of London and Hull. It believes this will encourage leased line customers, mainly large enterprises and bandwidth resellers, switch to Ethernet as it will allow prices for services based on older technologies to rise modestly to allow BT recover its costs from a declining customer base.
Supporting this proposal was a report from CSMG on qualitative issues around the >1Gbps market. Its main findings about market conditions were unsurprising: BT has significant market power outside London and Hull; most cities on the UK’s ‘figure of 8′ fibre ring are relatively well provided for; the rest of country depends on Openreach, etc etc.
The respondents, 25 end users and five wholesale buyers of >1Gbps services, also volunteered comment off the ‘approved list’ of topics. Full marks to CSMG for including them in its report, and to Ofcom for publishing them even though they must have made uncomfortable reading.
The ‘unspoken’ issues include lead times to provision services, lack of physical route diversity, supply of dark fibre, business rates on lit fibre, and duct access. By and large, the comments suggest that Ofcom has failed to make best use of two of its primary policy tools, namely to encourage investment in network infrastructure and to ensure a competitive market at all levels.
“Numerous” end users told CSMG, “We have major problems with lead times – it can take three months to get a site survey, and a further three months to get installation. The whole process can sometimes take over a year, with major implications for business. There is insufficient competition outside the M25 to drive lead times down.”
Another said, “We find we have to rely on BT Openreach for laying fibre, whoever we are procuring the service from… the [network build-out] process is very slow, and it is hard to get firm dates and prices. It’s holding the business back.”
More than half (56%) were concerned about true physical route diversity, mainly to improve service resilience. CSMG noted this was because carriers are reluctant to share their route data, but one user reported having a clause in its contract that required its provider to reveal updates to its network annually. Another said BT charged a premium, “but at least they can confirm they are using a fully diverse route.”
Opinions on dark fibre were split. Some said it is relatively easily available, others that the market is “immature”. Two heavy users of dark fibre thought market consolidation will see less dark fibre on the market as the remaining carriers could choose to offer only higher margin lit services.
Six of the eight respondents who expressed concern about business rate taxes on lit fibre said they were having to take lit services rather than buy dark fibre, as they would prefer, because of the high rates of tax payable on lit fibre. Two were currently using much more dark fibre than lit, but said they may have to move back to lit services in future because of the high rates, CSMG said.
Two end users wanted more clarity regarding the use of self-managed dark fibre, especially who has to pay the rates on lit fibre. One believed he was exempt because he was using the fibre himself rather than reselling it. However, he was still having to pay an unexpected bill for three years’ rates.
One of the wholesale buyers was keen to build out more of his own fibre, but said the rates payable on lit fibre were damaging the business case.
Three interviewees believed that BT was advantaged by the fibre rates regime. This was unfair on smaller operators and end users who bought dark fibre, they said.
“The very high level of the fibre tax is a major reason why we have to limit the use of high bandwidth fibre services. We feel that the level of fibre tax which BT pays is unfair. We would like to see everyone paying the same rates as BT – or preferably, no tax at all.”
Another said, “The fibre tax is arbitrary and unfair – we do not see why smaller, more agile players should get taxed while more dominant players such as BT are given tax relief.”
A wholesale buyer said, “Costs are currently prohibitive for new entrants to the market, and for existing players looking to expand their network. In particular, the fibre tax is not helping the business case for network build-out, and gives larger players – particularly BT – an unfair tax advantage.”
Vtesse Neworks earlier took the fibre tax issue to the Appeal Court, which ruled two to one against the carrier. Responsibility for the fibre tax lies variously with the Treasury, the department of communities and local government, the Valuation Office Agency and local councils. The incoming coalition government promised to “review” the tax, but as these comments suggest, has failed to level the playing field. Ofcom may be entitled to redress any advantage that might accrue from the allegedly unfair treatment, but has not done so.
Where Ofcom has also done less than it could is in opening up duct access. It did persuade BT to introduce a new product, Physical Infrastructure Access, to allow third parties to use BT ducts and poles. However it also allowed BT to impose terms and conditions such that there has been no large-scale take-up of the product. In fact, these terms and conditions were largely responsible for seven of the nine carriers invited to bid dropping out of the BDUK next generation procurement framework .
CSMG reported, “Four interviewees, including two wholesale buyers, were disappointed at the lack of duct access available in the market, which was preventing them undertaking more widespread build-out.”
As these comments were not within Ofcom’s brief to CSMG, it is unlikely anything will come of them. This leaves us with the actual outcome – the proposed 11% price cut.
One could say it’s better than nothing. However, CSMG found that end users and systems integrators can negotiate discounts, especially where there is competition. Fifteen respondents, including all five wholesale buyers, reported being able to negotiate on price. Three won discounts of around 30% and one got a 50% cut on a dark fibre service, CSMG said.
That makes Ofcom’s proposal look like small beer indeed.