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Openreach Takes UK ISP TalkTalk to Court Over Unpaid Fees

Wednesday, December 2nd, 2020 (7:58 am) - Score 13,608
internet law uk

Network access provider Openreach (BT) has confirmed that they’ve “reluctantly” begun a high court case against budget broadband ISP TalkTalk, which reportedly centres on a dispute over unpaid fees (said to be worth c.£16m) for wholesale access to its high-speed fibre optic based Ethernet products.

According to The Telegraph, TalkTalk’s arrears date back to the end of September, when the provider was due to make its monthly payment of about £70m. Apparently, some of this payment was withheld by the ISP because they claim that Openreach had failed to meet the service level guarantees set out in their contract. The money being withheld represents around 1% of what the ISP pays Openreach on an annual basis.

NOTE: TalkTalk is said to have first initiated this dispute some 12 months ago, before COVID-19.

It is usual to withhold payments when service levels are not met, so we are disappointed by Openreach’s actions,” said a spokesperson for TalkTalk. The core of this issue appears to centre around Openreach’s use of the “deemed consent” clause to allow for installation delays, which can avoid the need for a compensation payment (i.e. if the delay is justified).

The deemed consent mechanism exists to cover a variety of factors that could cause delays, such as when dealing with infrastructure damage, the clearance of blocked cable ducts, tackling asbestos, gaining specific approvals for street works or a variety of other issues.

In short, if Openreach encounters problems that require more time to resolve (i.e. extend the provision window), then in certain circumstances it can assume that a customer has agreed to an extension. Clearly TalkTalk believes that the operator has not been playing fair on this front, which Openreach denies. Back in 2017 Openreach was hit by Ofcom with a fine of £42m for a similar issue (here) and told to repay ISPs.

A Spokesperson for Openreach said:

“TalkTalk is one of our biggest, most valued customers, so we’re reluctantly pursuing this through the courts. Our priority is to continue to support TalkTalk and their millions of customers throughout the UK, in a period when connectivity’s never been more important.”

Openreach’s minimum service levels have improved a fair amount over the past few years, which is partly due to regulatory pressure from Ofcom, although TalkTalk clearly feels as if it has examples where things have not gone quite as smoothly. The court will ultimately decide which side is right and which is wrong, although such cases often take a while to reach a conclusion.

The move comes shortly after TalkTalk announced that it was considering taking legal action against Ofcom over a key change in the regulator’s Wholesale Fixed Telecoms Market Review 2021-26 (FTMR), which could result in Openreach charging higher wholesale prices (here). Tis the season to be jolly for litigation.

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Mark Jackson
By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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19 Responses
  1. Avatar MikeC says:

    Does it seem quick for them to head to court given the age of the debt, or am I missing something?

    1. Avatar Michelle says:

      Hi if you’ve ever had dealing with talktalk and know of thier reputation then no certainty not! They are being persuaded and treated with the same manor that they treat thier own customers.

  2. Avatar - says:

    A little early perhaps yes. Then again if TT are continuing to withhold the full amount then clearly OR will want to nip it in the bud.

  3. Avatar brooks says:

    Is openreach struggling. Sounds like they are in serious trouble.

    1. Avatar Alex says:

      How does it sound like that? I was assuming TalkTalk are the ones in trouble, given they’re not paying their bills…

    2. Avatar MikeC says:

      Judging by their last full accounts filing, I’d say they’re not.

    3. Avatar Buggerlugz says:

      I’d say BT and its subsidiaries are in dire straights looking at all the ways they’re scrabbling to increase cashflow currently. First the hammering of employee contracts, then inventing extra costings for Altnets and now this. Not turning out to be a good week for them is it.

      Something worries me things are afoot within the BT bubble and its not good. Guess you can only use creative book-keeping for so long before “things” start to rise to the surface……

    4. Avatar Fastman says:

      buggerlugz

      no idea what your on aboput 2 and 2 does not make 28

      disinformation of the highest order

      I’d say BT and its subsidiaries are in dire straights looking at all the ways they’re scrabbling to increase cashflow currently. First the hammering of employee contracts, then inventing extra costings for Altnets and now this. Not turning out to be a good week for them is it.

      Something worries me things are afoot within the BT bubble and its not good. Guess you can only use creative book-keeping for so long before “things” start to rise to the surface……

      the contract thing has been on the cards for the last 2 years

    5. Avatar Simon says:

      Openreach in trouble you surely ain’t being serious

  4. Avatar Can't pay, we'll take it away... says:

    So Talk talk can withold payment if inferior service, but customers must pay their bill or else if Talk Talk has service issues to them?

  5. Avatar N.Lambson says:

    Talk Talk are the worst company I’ve ever dealt with in my life any punishment coming their way is overdue as far as I’m concerned, dealings with them led me to a nervous breakdown and nearly ended, firstly my marriage and secondly my life.

    1. Avatar Ryan Griffiths says:

      I would have to agree given a member of the Talk Talk loyalty team in Manchester decided it would be a good idea to phone me after work and tell me to go F*** myself.

  6. Avatar derek durbridge says:

    Average speed 38 Mbps ,what a joke talk talk faster fibre 41 quid a month max 15 Mbps,they talk the talk and all shit

    1. Avatar Leex says:

      If your line can only do 14mb then doesn’t matter who you go with as they all Get 14mb (unless your on virgin as they own there own network not limited by distance)

  7. Avatar Amanda says:

    Open reach are a complete nightmare. They’ve left me 2 months and still counting without internet. They took me off a fibre port and gave it to someone else and I’ve been fighting with them for over 2 months to put me back on. And all they keep saying is theres a broken fibre port and no1 will fix it, I have to wait for someone to leave and then they will put me on that 1. I’m supposed to be priority1. So now I’ve opened a complaint against open reach with ofcom who are fighting my case.

    1. Avatar Meadmodj says:

      Surely your contract is with your ISP not OR. They should be resolving any issue with their provider, OR. Some ISPs provide alternatives if it is down. It sounds like the FTTC cabinet is now at full capacity and awaiting an Openreach upgrade.

    2. Avatar Fastman says:

      that port is with your Provider – if you leave and FTTC that port will give given to the next provider in the waiting list or registered. not sure what you- you must have raised a cease order with your provider – openreach will not disconnect you without an order from your provider – so whats your provider telling you

  8. Avatar James Lane says:

    Why is this not an issue of “what does the SLA say?”.

    Citing “It is usual to withhold payments when service levels are not met” isn’t a strong position if there is no provision in the SLA for penalties against service (which surprises me that there isn’t).

  9. Avatar AN Other says:

    They are called Opensewer for a good reason.

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