On 4 September 2012, Ofcom published the consultation document and notification entitled 'Waiver of BT's price notification requirements to extend FTTC simultaneous provide offer - Notification of a proposal to give consent to a shorter price notification period in a specific case' (the 'September 2012 Waiver Consultation'). In that document we proposed to give consent to a waiver of the price notification requirements in relation to a two month extension of the Generic Ethernet Access - Fibre To The Cabinet (GEA - FTTC) Simultaneous Provide wholesale offer, which would allow BT (i.e. Openreach) to extend the existing offer in advance of the normal 90 days' written notice period. We invited comments on BT's request and our proposal by 11 September 2012. This document sets out our decision to agree to BT's request and contains the formal Consent to do so set out at Annex 1.
Significant Market Power (SMP) services condition FAA6 - Requirement to notify charges and terms and conditions ('Condition FAA6") was imposed on BT by Ofcom's 2010 statement Review of the Wholesale Local Access Market - Statement published in October 2010. In particular, Condition FAA6.2 requires BT to give not less than 90 days' notice of any amendment to the charges, terms and conditions for existing Network Access, before any such amendment comes into effect. The GEA-FTTC service which is the subject of BT's request is subject to that SMP Condition.
In the remainder of this document we refer to Openreach instead of BT, as this is the operating division within BT responsible for supplying FTTC wholesale products.
On 22 August 2012, Openreach requested that Ofcom consent to a waiver of the notification period referred to above to enable it to give effect to a price change earlier than 90 days. On the same date Openreach published the document titled "NGA023/12 Proposed extension of GEA-FTTC simultaneous provide special offer" which sets out details of the offer and Access Charge Change Notice ( 'ACCN OR264 Revised').
The document "NGA023/12 Proposed extension of GEA-FTTC simultaneous provide special offer" sets out the details of Openreach's offer to its wholesale customers. The scheme consists of a £50 discount to the FTTC connection price (£80) where FTTC is ordered together with either a) a new provide for Wholesale Line Rental (WLR) or MPF (Metallic Path Facility) or b) a request to start a line previously stopped for more than 90 days. The FTTC Simultaneous Provide offer is currently available to Communication Providers (CPs) from Openreach on a national basis and will end on 30 September 2012. The current offer also applies to FTTP connections at Brownfield sites but Openreach has not requested to extend the FTTP element of the offer beyond 30 September 2012 as it has attracted very low volumes.
Openreach intends to extend the FTTC Simultaneous Provide offer for two additional months (from 1 October to 30 November 2012) but limit it to specific geographic areas, i.e. large areas of London and North West England excluding Cumbria (the proposed list of Local Exchanges entitled to the offer is at Annex 3). As Openreach has not provided 90 days notice of its intention to extend the offer, the two month extension would require Ofcom to agree to waive the 90 day notice period contained in SMP condition FAA6.
Openreach had advised us that the proposal to extend the price reductions earlier had already been presented to relevant industry stakeholders. Openreach also advised that it had received no objections to its proposed offer but rather support from those Communication Providers (CPs) who were currently considering increasing their consumption of FTTC wholesale lines, e.g. Sky.
Openreach considers that the terms of the price change require 90 days' written notice in accordance with SMP services condition FAA6.2. However, Openreach wished to bring forward the date on which the price reduction applies to 1 October 2012. Under SMP condition FAA6.1, Ofcom may consent in writing to Openreach publishing charges, terms and conditions in a manner different to that provided for in condition FAA6.2 where it considers it appropriate to do so. This would include a waiver of the requirement to provide 90 days' written notice.