Saturday, 29 March 2014

BT want to charge us for someone else's mistake

It seems that someone damaged a BT overhead cable whilst doing some work nearby.

This is not a huge surprise to us or anyone. I am sure it is easily done, and I am sure contractors have insurance for such things (probably comes under their public liability insurance if nothing else).

Obviously if you accidentally damage someone else's property you have a liability to pay for that damage. That is simple enough.

But no, it seems BT plc have some very strange ideas about this.

Let's be clear, the damage resulted in BT plc failing to meet its obligation to provide a working service to its customer, us. This was, of course, not their fault, it was because of damage caused by someone. Arguably BT plc should compensate us for their failure, and include that in their losses that they claim from the party that caused the damage. The damage wasn't our fault, or BT plc's, and so in the long run neither of us should be out of pocket.

Fortunately for BT plc this instance was not one of vandalism, it is a case where they can clearly identify exactly who caused the damage - so recovering costs for the damage should be simple. Had it been vandalism then they would lose out as they would have to fix the network at their cost. I am sure they have insurance for that.

So, with me so far? A contractor accidentally broke a cable, BT fixed it.

But hang on! We get a bill from BT for fixing the cable!!!

Obviously we dispute it, but BT say that because the contractor was working for the end user who is our customer, we have to pay for the repair.

Basically, no way - we are refusing to pay on principle, and threatening to sue BT if they don't refund us.

I mean, imagine if the contractors second cousin twice removed had crashed his car in to the phone exchange and caused £100,000 worth of damage - would we be expected to pay for that?

If *we* cause damage, then of course we have to pay for it.

If our customer causes damage, then our customer has to pay for it, but we are not bailiffs or debt collectors for BT plc, and we would not pay BT and then collect for our customer. That is mad.

If someone that works for one of our customers causes damage then this is even more removed and nonsensical that we should be involved in any way.

One wonders what would have happened if the contractors were not working for our customer, but for their neighbour or some such. Would we get a bill from BT still? Or would the neighbours telco get a bill from BT?

We'll see what they say - or we'll have a fun day in court.

Actually, look at it another way. This is a contractor accidentally damaging equipment and the bill going to their customer's phone provider. Now, if ever we had damage done to any equipment by a contractor working for someone, and the person they worked for happened to be a BT customer (i.e. had a BT line), that presumably means, by BT's logic, we could send the bill for repair to BT plc. Wow, what a wonderful scheme.

Update: BT quote a "policy":

Damage to Openreach network up to and including the NTE where it has been caused by the EU or agent working on behalf of the EU is chargeable via TRCs. This is also the case with any damage caused by the CPs or their agent. Openreach engineers will replace the standard faceplate to the NTE where it has become faulty as a result of an unknown cause and not damage, without a charge.  If however, a non-standard faceplate has been fitted, which is found to be faulty, Openreach will raise the relevant TRCs for its replacement with a standard Openreach faceplate.  Openreach shall also replace the NTE face plate where damaged by lightning, fire and flood beyond the CP/EU’s reasonable control (as set out in the preceding sections) with a standard Openreach face plate without a charge.  

For example this applies when an EU cuts down the dropwire or lead in whilst trimming creeper growing on wall, or when a builder cuts a wire whilst carrying out building alterations or when a tree surgeon damages a wire or needs a wire lowering whilst felling a tree within the EU’s curtilage.

We have asked where this fits in terms of actual contract terms. We have also pointed out that whilst tis says that damage repair is chargeable, it does not say that the CP is the one charged. The idea of charging the EU or their agent TRCs for repair for the damage caused is fine, and would be the default in case of tort or criminal damage. We're waiting for answers on that and the definition of "End User".


  1. No, wait, think about it... if you see what they're planning for the future, it makes perfect sense.

    Bear with me:

    I think we're all in agreement about Kelly Communications. I imagine that they could be costing BT more money than BT are saving by contracting out the work.

    But... BT pay Kelly to do some work for a third party. Kelly steal some pairs from your customer causing BT to have to go out and do some repair work.

    Assuming they get this "billing vaguely related parties" system in place and accepted, then BT could send you a bill for repairing the damage Kelly did to your customer.

    See - it's all part of a long term plan!

  2. Adrian, as much as I usually agree with you on the crazy things BT does (god knows we've seen our fair share), in this instance I disagree. Let me give you another scenario:

    We've just had a situation where a customer's PBX was hacked and they racked up a bill of over £2000 before we detected it and suspended the service. As it turns out, the customer's PBX had been installed/maintained by their IT Support company, and they had in turn had sub-contracted the work to another firm.

    When we told the IT company what had happened, they said to us "this is between you and the contractor". We had to contest; we didn't know anything about the contractor and we certainly didn't have a contract with them. As far as we were concerned, we had a contract with the customer, they had contracted a supplier to install and maintain a system. That system was misconfigured by them (actually in this case their sub-contractor in-turn) and led to a large cost being incurred to their client.

    So by your logic in this post, it's not necessarily appropriate to bill my customer for the costs they incurred, but to invoice their contractor (or possibly even the sub-contractor). The way I see it is; we don't have contracts with these 3rd parties who are to blame, so by rights they are not obliged to pay my invoice. This would suggest that in these kinds of situations, rather than follow the supply chain, the default behaviour should be to take the ultimately responsible party to court (assuming you can find out who they are).

    To take it one step further, I am in a way just a middle man here, I have upstream suppliers. Who's to say I shouldn't refuse to pay my carriers for the call costs and tell them they need to invoice the sub-contractor of my client's IT company who ultimately forgot to put the firewall on their PBX?

    Now in your case it's slightly different because BT are a public utility provider, but it's not as simple as 'it's not my fault, you should bill these guys instead'.

    1. I do not think that is related. The hacker is ultimately the person that caused the cost (much like vandalism) and the party contracted to configure the system may have been negligent in what they did and have a liability to the party they contracted with. Your customer contracted someone to configure a system (and implicit was to use due care to avoid attacks).

      In case I describe it is not a contract breach going on here. It is someone causing damage. If they had damaged a road sign then the council would not charge us would they? BT can expect damages from the party causing the damage not from some basically unrelated party. The work being done by the contractor was not something we had subcontracted to our customer who had subcontracted to their contractor. This was nothing to do with the phone service we are providing.

      You have a contract with providers that says you pay the call costs. Your customer has a contract with you that says they pay you call costs. Your customer contracted someone to set up the phone system (well enough not to get hacked), etc. All contracts, all relevant to what happened. The call costs were not "damage caused to your upstream providers equipment" they were use of the service provided and that usage is covered by the contract they have with you.

      Liability in tort for damages is very different than liability in contract for agreed and provided services. Very different.

  3. I see your point. I suppose seeing as it's damage to an external element of a public network there maybe is some scope to expect them to pay directly.

    But how would it differ if a joiner or carpet fitter doing work in someone's house cut their phone line by mistake (as has happened to me a number of times). If they cut the line before the NTE5 socket, that would technically be BT's responsibility, so would you argue that BT should bill the tradesman for the repair?

    1. Yes, definitely,IMHO. How is that different to him driving in to the street cabinet whilst driving off to get a new chisel for the job? The NTE is the demarcation for a reason. But consider, what if carpenter is not working for the phone line customer/user, but someone else in the building? What if the carpenter was working for a neighbour. Remember, BT's customer here is *us*, not the end user.

  4. You're right. In theory that's how it should work, however in reality it's just not practical to try to chase down every carpenter who snagged a cable (or contractor who took out an overhead cable). The mechanism BT have invented might not be absolutely right, but I'd say it's a reasonable compromise. As with all BT's processes, it could probably be vastly improved.

    It's great that there are guys like you Adrian who don't accept compromises. Most people are like me when it comes to matters of monolithic telcos - utterly defeatist!

    1. I see your point there, but if we accept this, what is to stop there being a bill for £50,000 because the contractor demolishes a street DSLAM with his digger? We are not indemnifying BT for that so why would we for 1p.

    2. The practicality of chasing down the person who did the damage (especially where the identity of that person is already known) is basically a cost:benefit analysis. If the benefit of tracking them down and billing them exceeds the cost of doing so then it is therefore "practical" to do so and BT should be doing that. The cost of tracking down the person who caused the damage can probably even be recovered as part of the bill. If the costs outweigh the benefit then BT are well within their rights to just swallow the repair bill - this is probably most likely where the identity of person who caused the damage isn't clear, so the cost of tracking them down could be high and the benefit may have an element of risk (you could spend a lot of money trying to find them, but in the end fail to do so). Either way, BT *don't* get to decide that billing the right person is hard and bill someone else at random instead.

      If BT wanted to go down this avenue of expecting their customers to indemnify them for damage caused by third parties, they are free to do so as long as they include a "you will indemnify us against damage caused by third parties" clause in their contracts, clearly outlining how it works, including limitations to exclude the "someone crashed into the exchange" situation - I'm assuming there is no such clause in the contract A&A have with BT.

    3. Not that I am aware of. We will be checking again but not something I would have ignored.

  5. > Remember, BT's customer here is *us*, not the end user.
    Which, in practice, is why they have sent you the bill. It's much easier on their part to try to charge someone for whom they have contact details and with whom they have a billing arrangement than whoever did the damage. You probably even had the temerity to report the fault :)

    Lazy and inappropriate but definitely easier.

  6. I suppose from BTs point of view they have repaired a fault caused by damage on the customers site, that the end customer may have e.g. said to the engineer "oh yes OUR builders did that" or similar, and in some way accepted liability - while arguably BT should bill the end customer directly, that's not how eg SFI2 charges are done when the fault is in the customers wiring so I suppose they seeing the same way?

    1. All down to which side of NTE. BTs side they won't even let the end user fix it themselves.

  7. So how would BT handle a line supporting two providers, one voice and the other broadband? Would they bill each 50%?

    1. and what if the line was provided by BT Retail but the ADSL via A&A

    2. BT's dividing line seems to be that only broadband-specific issues are associated with the broadband service; anything that affects voice service is a voice fault, whether it also affects broadband or not.

      Given the need to split faults between voice and data, I suppose this approach makes sense - and it's better for ISPs, of course, since they only need to deal with broadband-specific issues.

    3. In that case I would suggest that A&A only offer ADSL. But that defeats the "one stop shop" situation. I wonder if A&A has two companies. One providing the line and one providing the ADSL...

    4. I don't think that would help: in this case, it would probably be a "voice fault", hence charged to "A&A voice" if there were such an entity, rather than being charged to plain old A&A. No real benefit in that.