Recently, Virgin was fined £23.8m by Ofcom for failing its duties to vulnerable consumers in migrating to digital landlines. This is a topic relatively close to my heart, having been pointing out the risks to various personnel in the regulator for sometime. I am not alone in this either, Simon has rightfully been pointing out broader issues in this area recently too.
Ofcom has rightly intervened in the Virgin case, but Ofcom also needs to consider its own role in creating an environment where there are competing, irreconcilable tensions. The drive for faster switching, along with pressures to expedite the transition off copper, creates a conflict without due consideration of the needs those the regulator is meant to protect.
By way of example, the industry has received several letters from Ofcom, wanting it to achieve faster outcomes in switching. This is the same regulator which also wanted to remove tools at the industry’s disposal (such as “cancel other”) which have a role in preventing the high-risk scenarios we see in the Virgin case.
When I entered telecoms (rotary dial was just about still a thing), I never thought I would have to say the words “People are going to die this Christmas unless you do something” to a consumer protection agency. Without naming names, I am glad to say that particular warning did get through, but the very fact that it had to be said speaks volumes about the apparent priorities of our regulator.
Former Ofcomers, when free of the shackles of their obligations to the civil service, have referred to Ofcom’s attitude to switching as “ideological”. So much for evidence based regulation. If I were being particularly mischievous, I would consider a Freedom of Information Act request to see if the team at Riverside House have weighed the value of life, versus saving 50p a month on your broadband.
The risks are real. How many times have you seen an erroneous port because of something as simple as a transposed digit in a phone number? The system we have is not fool proof, and the circumstances that led to the issues experienced by Virgin’s customers can happen again.
Thankfully, some of the adult operators (even if they may be referred to in this blog by Simon as ‘knuckle-draggers’ and ‘dinosaurs’) get it, and are working hard to ensure that Ofcom and the OTA take the matter seriously so that history cannot repeat itself. When these matters come up in the plethora of talking shops, I would strongly recommend being on the right side of history and helping to ensure that the OTA and the industry take these initiatives seriously.
That said, blaming Ofcom’s drive for a simpler and faster switching regime does not excuse some of the failures that Virgin experienced; they admit they did not follow their own processes and procedures which were designed to prevent the very issues seen. If you get time to read the final determination by Ofcom, you’ll see that, in fairness to Virgin, some of these were well designed processes. And while the powers that be have determined that the two fatalities of those with failed telecare devices were not directly causally linked, the brand damage due to the media attention that resulted will take years to recover from.
Which brings me onto the relevance for our readership. Repeat after me.
Being a business-to-business provider does not exempt you from consumer protection rules.
Repeat it a few more times to be sure. I’ve talked about this in relation to 999 before but it is wider. Instruments like General Condition C5 use three definitions, of which two are relevant for those selling to businesses.
When you see the word Consumer (in the GCs – don’t get me started on how it’s conflated with “end user” in legislation), then we’re into the world of the residential user.
Where you see “Subscriber” we are talking about the counterparty to your contract. A limited company can’t be vulnerable (although one might make the argument to the contrary seeing the rating of BT’s bonds being near junk), but a sole-trader can be.
An End User would be any user of your service (vulnerable or otherwise), even if the Subscriber is a business.
In other words, as a business provider, you have certain obligations to the vulnerable users of your services, even if they are employed by your customer. And no, assuming that the accommodations a business has to make for the disabled under various employment legislation is an “out” won’t get you very far.
With that in mind, I would encourage everyone to take five minutes, and read through GC C5 again, and just go and double check everything in your back office. £23.8m and Google throwing up news articles about deceased pensioners when your name is searched is an awfully high price for not doing so.
