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Funds for Liabilities
Peter Davies
Licensing Advisor
2
Funds for Liabilities
OFTEL updating its policy
Procedure needs to be put in place
Sufficient funds available to meet liabilities
Relevant event means:• Licence revoked, or• Licensee ceases to trade
3
Why is OFTEL involved?
Telecommunications Act 1984
Code powers granted over section 10
4
Telecommunications Act 1984
Licences to run a telecommunications system are granted by the Secretary of State
The Secretary of State may decide that certain licensees can have “Code Powers” (section 10)
Code Powers allow licensees to acquire rights over public and private land for the purpose of installing and maintaining telecommunications infrastructure (Schedule 2 T Act)
5
PTO licence
“…the Licensee shall make such arrangements as will satisfy the Director … that sufficient funds are available … to meet the liabilities described in paragraph 16.2 below …”
(Condition 16 Schedule 4)
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The Problem
Operators need access to highways
Highway authorities want reassurance that funds will be available to meet liabilities
Need to encourage investment in infrastructure. Now around 175 operator groups with Code Powers
EC Licensing Directive - all operators with code powers have Condition 16
7
Licensing Procedure
Scheme must be:
Proportionate
Transparent
Non-discriminatory
OFTEL prefers self regulation
Need to strike a balance
8
Position of the highway authorities
What is a relevant event
Damage from uncompleted streetworks
Apparatus safe and unobtrusive
Quality of the work and proper reinstatement
9
Types of equipment
Underground cabling in trenches and/or ducts
Overhead cable and telegraph poles Mobile phone masts and aerials Telephone boxes Managed service phones Telephone cabinets, and Microcells and other miscellaneous
equipment
10
Calculating the liability
% of the capital cost
If so, what %?
Specific values on each category of equipment
Using ratable values
How do we deal with historical cost
11
After a relevant event
If no other operator takes on the infrastructure
Should it be left in the ground
Should there be a period after which infrastructure passes to highway authorities
12
Length of the liability period
If left in the ground
Appropriate period of liability
Six years (simple contract)
Twelve years (contract made by deed)
Fifteen years (latent defect liability)
13
A scheme needs to be created which will provide highway authorities with the
assurances they require. How do consultees consider such a scheme should
be structured?
Simple to operate
Proportionate transparent and non-discriminatory
Fair and equitable for all of its operators
14
Are there any other ways apart from insurance and
bonds/guarantees which consultees consider could provide
such assurances?
15
Could the present ad hoc arrangements continue and if so how could Oftel meet it’s
obligations of transparency and non-discrimination under the Licensing Directive
while maintaining confidentiality in its dealings with individual operators
Present process unsatisfactory
Some changes inevitable even if continued
16
Would individual performance bonds/guarantees work to inhibit the ability
of some operators to obtain funding for development and would any scheme based
on bonds/guarantees by individual operators be discriminatory?
Bond will be a change on assets
Might inhibit investment
17
How could a global scheme of insurance covering the whole industry work in practice and is it likely to operate in a discriminatory
manner?
Structured in cells
Related to perceived risk
18
Should there be any additions or other changes to the list of types of telecommunications apparatus
listed in paragraph 10.2?
19
Which of the two methods of calculating liability as set out in this consultation
document do consultees consider to be more appropriate, or are there other methods of calculating such liability which they consider would be more
appropriate?
20
What action is most appropriate in the case of part completed works?
Only after a relevant event
Does not extend to workmanship during construction
21
What is the most appropriate period for contingent liabilities?