Equality of Access Board: Terms of Reference
The role of the Equality of Access Board ("EAB") is a general one of monitoring, reporting and advising BT on BT’s compliance with the Undertakings given to Ofcom by British Telecommunications plc pursuant to the Enterprise Act 2002 (the "Undertakings") and the Code of Practice to be published under section 9 of the Undertakings (the "Code of Practice"), with a specific focus on the provision of products on an Equivalence of Inputs basis and the operation of Openreach. It is not one of executive policy making for BT or any part thereof. (Undertaking 10.9)
The EAB shall report regularly to the BT Group plc Board on BT’s compliance with the Undertakings, with a particular focus on those sections of the Undertakings which concern the provision of products on an Equivalence of Inputs basis, the operation of Openreach and the adequacy of existing reporting controls, including the scope of proposed and actual KPIs. (10.18)
To deliver this role the EAB:
1. shall review the content of the Code of Practice; (10.11.1)
2. shall review BT’s performance against key performance indicators (KPIs) which relate to the Undertakings (10.11.2). BT shall report performance on KPIs relevant to these Undertakings. The EAB may review, from time to time, the matters which the KPIs shall cover and propose changes. BT shall provide information on such KPIs to the EAB in a timely manner unless it has a reasonable reason for not doing so. The EAB shall pay particular attention to proposed KPIs for migrations and for behavioural measures and may for these activities propose target performance levels. BT shall publish its performance against the KPIs on a quarterly basis. The first such publication shall be within three months of the establishment of the EAB. (10.19)
3. shall review reports of the Equality of Access Office ("EAO") on complaints and complaint handling concerning BT’s compliance with the Undertakings, including the conclusions of investigations into those complaints; (10.11.3)
4. shall review complaints regarding the Undertakings made by BT employees to BT’s confidential helpline and access routes established for general purposes in accordance with the UK Combined Code on Corporate Governance; (10.11.4)
5. shall have the right to review any reports produced by the EAO; (10.11.5)
6. may, of its own initiative, review any aspect of BT’s compliance with the Undertakings; (10.11.6)
7. may, of its own initiative, review, or request the EAO to investigate, any other issue concerning the Undertakings; (10.11.7)
8. shall be responsible for monitoring and reviewing the product roadmaps and volume forecasts as referred to in section 5.13.1 of the Undertakings, as well as the associated investment decisions as referred to in section 5.13.2, as they relate to Openreach and significant market power (SMP) products (as defined in the Undertakings); (10.12)
9. will be informed of the Service Level Agreements ("SLAs") set by Openreach including those referred to in section 5.13.3 of the Undertakings and may call for reports on performance against them. The EAB shall have oversight of compliance with these SLAs and may use the escalation route mechanisms to comment on the subject matter of SLAs, the levels at which SLAs are set or on performance delivered against them; (10.13)
10. will review Openreach’s supply of products to other parts of BT in accordance with the Undertakings; (10.14)
11. BT shall inform the EAB of any breaches of the Undertakings that it identifies and the EAB Secretary shall record such breaches in the minutes of the next meeting of the EAB. (10.16) The EAB shall inform Ofcom, within ten working days, when it comes to its attention that there has been a non-trivial breach of the Undertakings; (10.17)
12. shall have shared with it the Openreach annual operating plan and the commentary on previous year’s implementation and application of Undertakings as they apply to Openreach; (5.28)
13. will, in circumstances where demands for product enhancement from Openreach, BTWS or BTS (as defined in the Undertakings 6.1) create a situation which requires prioritisation by BT of its capital expenditure, provide its view to BT on the best means of BT avoiding unduly discriminating in its prioritisation; (6.12)
14. shall review with the CEO Openreach, once the Openreach Headquarter Management Team has been established, the adequacy of any planned moves to access controlled accommodation, and the CEO Openreach shall make appropriate changes agreed with the EAB; (5.34)
15. shall receive from the EAO reports on matters within the terms of reference of the EAB. (10.32)
In respect of any of the above activities described in 1 to 10 above the EAB:
may suggest to BT remedial action to ensure compliance with the Undertakings. BT shall take due account of any suggestions or comments the EAB may have; (10.15.1)
shall be informed of any action that BT has taken in respect of the above. BT shall explain its conclusions and approach to the EAB; (10.15.2)
may comment on any action BT has taken, comment on whether such action was appropriate in ensuring compliance and suggest further remedial action if necessary; (10.15.3) and
shall record its view in the minutes of the appropriate EAB meeting. The EAB’s annual report shall show summary details of such minutes, subject to commercial confidentiality. (10.15.4)
1. The minutes of each meeting of the EAB shall be sent to Ofcom within a reasonable time of each meeting. Such minutes shall be a fair, true and accurate summary of each EAB meeting. (10.10)
2. The EAB shall conduct an annual review of compliance with the Undertakings in their entirety in relation to BT’s financial year, commencing with the relevant months of the BT financial year 2005/2006. Upon completion of such a review the EAB shall send a report to Ofcom, which shall include a detailed, accurate and complete account of:
performance against KPIs;
instances where a material breach of the Undertakings has been identified, and any steps taken as a consequence of such material breach and including a summary of non-material breaches;
areas where it has a concern with regards to possible future breaches of the Undertakings, and the EAB considers that such concerns have not been adequately addressed by BT;
steps BT has taken or is taking to ensure compliance with the Undertakings;
the adequacy of the governance measures in place to ensure compliance with the Undertakings;
how the report was compiled;
a summary of any documents (excluding any internal audit reports, legal advice or legally privileged documents) prepared for the EAO for the purposes of preparing the report that substantiate significant conclusions of the report. Such documents shall be supplied to Ofcom if so requested; and
whether the EAB had adequate resources at its disposal to discharge its duties pursuant to the Undertakings. (10.27)
3. Once the above review of compliance with the Undertakings has been approved by the EAB, the EAB shall offer a briefing on the report’s findings to Ofcom. (10.28)
4. Once the briefing on the report has been made to Ofcom, EAB shall publish in June each year a summary report (the ‘EAB annual report’) on its activities as a distinct part of BT’s annual regulatory compliance report. It shall be made available on the BT website. (10.29) The EAB annual report shall be audited by independent external auditors as part of their audit of BT’s annual regulatory compliance report. The audit may include an opinion on the processes for non-financial metrics such as KPIs. (10.30)
The EAB also:
may review both the scope of Annex 2 to the Undertakings and the training offered under section 5.41.3 of the Undertakings; (5.41.3)
shall be notified within five working days of any variation made by the Board of BT Group plc to the delegated authority to the CEO Openreach to authorise capital expenditure within the Openreach annual operating plan (set at the date of the Undertakings at £75 million); (5.29)
shall have oversight of the operation of the Statement of Requirements Process in accordance with section 5.11 of the Undertakings; (5.11)
shall appoint external auditors of the EAB annual report and agree the external auditors’ fees;
may appoint external consultants and external legal help, in agreement with the Group General Counsel and the Company Secretary;
shall agree the appointment of the most senior person of the EAO and the EAB Secretary, save where the first such appointments are made before the establishment of the EAB and hence are made by BT; (10.33)
shall determine how best to engage with representatives of industry in order to understand their issues and concerns; (10.37)
shall receive from BT (a) a copy of any notification given to BT by Ofcom under section 15.1.1 of the Undertakings at the same time as that notification is received by BT, (b) a copy of BT’s representations to Ofcom in respect of each such notification at the same time as those representations are delivered to Ofcom, (c) a copy of any direction given by Ofcom under section 15.1.3 of the Undertakings at the same time as it is received by BT, and (d) a copy of the notice to be given by BT in response to the direction at the same time as that notice is given to Ofcom, together with, if appropriate, details of the actions BT intends taking to comply with the relevant direction;
be notified by BT immediately it is notified by Ofcom that it considers BT to be in breach, for whatever reason, of the Undertakings.
The EAB shall consist of five members, comprising (a) a BT Group plc non-executive director (who shall be the Chairman of the EAB), (b) one BT senior manager (who shall not be within Openreach, the Upstream Division(s) or the Downstream Divisions), and (c) three independent members. The independent members shall be appointed once BT, having consulted Ofcom, is satisfied there is no material conflict of interest, having taken into account whether such person is:
(i) an employee or former employee of BT;
(ii) a director or senior executive of any Communications Provider (as defined in the Undertakings);
(iii) a partner or senior executive of any firm, company or other organisation providing consultancy services to BT or any other Communications Provider;
(iv) an employee of Ofcom; or
(v) a material shareholder in BT Group plc or any other Communications Provider.
The BT Group plc Chairman shall appoint the BT Group plc non-executive director and the BT senior manager to the EAB.
Subject to receiving confirmation from BT that there is no material conflict of interest, the Chairman of the EAB shall appoint the three independent members following the agreement of the BT Group plc Chairman (on behalf of the BT Group plc Board) and after consultation with Ofcom.
BT shall consult Ofcom on any terms of reference for each EAB member and on the terms of appointment of each independent member.
The Chairman of the EAB, following agreement with the BT Group plc Chairman and after consultation with Ofcom, may remove the independent members of the EAB.
The BT Group plc Chairman, in consultation with Ofcom, may remove the Chairman of the EAB or the BT senior manager.
The EAB shall in its first 12 months of operation have between six and ten meetings. Thereafter the EAB shall meet as frequently as the EAB determines from time to time. (10.8)
The chairman shall be responsible for preparing the agenda of the EAB and for the conduct of its meetings.
The EAB shall be quorate with three members present, one of whom must be the Chairman of the EAB or his nominee. The BT senior manager shall also be entitled to nominate a replacement for him or her if he or she is unable to attend a meeting of the EAB. Such alternate shall not be someone who is within Openreach, the Upstream Division(s) or the Downstream Divisions. (10.35)
The EAB will aim to reach decisions on a unanimous basis. Where it is unable to do so decisions will be made on a majority basis with the Chairman of the EAB having a casting vote and any dissent in relation to such a decision by an EAB member shall be noted in the minutes. (10.34)
In the event that one or more of the members of the EAB has a serious concern, the EAB shall have an escalation route via the Chairman of the EAB, ultimately to the BT Group plc Board. The EAB’s annual report shall show summary details of any such escalations to the BT Group plc Board, subject to commercial confidentiality. (10.20)