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British Telecommunications Plc successfully challenges Ofcom’s dispute resolution decisions on its wholesale 0800 and 0845/0870 pricing


British Telecommunications v. Ofcom [2011] CAT 24

The Competition Appeal Tribunal has upheld British Telecommunications Plc's challenge to Ofcom's dispute resolution decisions on its 080, 0845 and 0870 wholesale pricing, and has stated that the mobile network operators who disputed the charges must make payments in accordance with the pricing terms that BT had sought to introduce. The Competition Appeal Tribunal also rejected the appeal of a number of mobile network operators against Ofcom's 0845/0870 decision (where they had argued that, although the right result had been achieved, Ofcom's reasoning was incorrect).

BT appealed under s.192 of the Communications Act 2003 against two lengthy determinations made by Ofcom in 2010 in which Ofcom had determined disputes raised by mobile network operators. Ofcom had found that BT was not entitled to vary the termination charges for terminating calls to 080 and 0845/0870 numbers on BT's network. The change that BT had introduced was a levy of wholesale charges in ladder steps which varied commensurately with the average retail price that the mobile network operators charged their retail customers for 080, 0845 or 0870 calls.

The Court of Appeal [2011] EWCA Civ. 245 had ruled in April 2011 in BT's favour on the evidence which BT was entitled to adduce before the Tribunal.

The Tribunal held unanimously that BT was entitled to introduce the call termination charges and that they were fair and reasonable. The judgment considers in detail the evidence about the effect of the charges; the scope of Ofcom's powers under the dispute resolution procedure; the role of the Tribunal in an appeal against a decision by Ofcom; and the appropriate approach to remedies where companies challenge a change to pricing and choose to withhold payment at the same time.

The judgment is here.

Sarah Lee and Richard Eschwege appeared for BT.

Robert O'Donoghue appeared for O2, an intervener in the proceedings.

Marie Demetriou acted for Opal Telecom Plc, who intervened in writing.