Proposed New Dispute Resolution Procedures for Fixed Telecommunications

1. Consumer protection is one of Oftel’s key objectives. This document is about proposals for two new sets of dispute resolution procedures which the Director General of Telecommunications is responsible for setting up for consumers, both residential and business, of fixed telephony services. The document sets out the Director General's proposals and invites comments on them.

2. The document notes that the Government, as part of the wider review of the utilities, has announced its intention to introduce primary legislation under which Consumer Councils for the utilities, including telecommunications, will be set up. These Councils will be charged with handling consumer complaints against utility companies where these have not been resolved by the companies concerned. The Government also anticipates the Councils working constructively with the utility companies to reduce the causes of complaints.

3. There may well be some overlap between the remit of the proposed Telecommunications Consumer Council and the procedures consulted on in this document. Oftel will therefore need to review the role of the procedures introduced following this consultation, once the new Telecommunications Consumer Council has been set up.

4. The proposals for these procedures are set out at Chapters 2 and 3. They will allow any party with an unresolved dispute with their provider of fixed voice telephony services to bring, if they wish, their case before independent, professional arbitrators. The procedures will apply not only to providers who require a Telecommunications Act licence to provide systems and services, but also to those who provide services but who do not require a licence.

5. The procedures will apply to disputes about telephone bills and the terms and conditions under which telephone services are offered and a number of other matters such as itemised billing and directory services.

6. The procedures are intended to be fair, transparent, speedy and inexpensive. The Director General proposes that the procedures would operate in the following way. The parties should first attempt to resolve the dispute themselves. Where, despite reasonable attempts, it has not been possible for the parties to resolve the dispute, then the party may request their provider to refer the dispute to the arbitrators or that party may do so themselves.

7. The parties would not have to appear in person. Instead the arbitrators would normally receive written evidence (which can be in an informal format) and then decide on the merits of the case argued. The arbitrators would have powers to award compensation where they considered that appropriate. The arbitrators' decision would be legally binding on both parties.

8. The party in dispute with their provider would normally meet their own costs of preparing the case and would pay a small fixed sum in the region of £15-£20. The fixed sum would be returned where the arbitrators find in favour of that party. This sum should provide a reasonable balance between discouraging frivolous claims, whilst not being a disincentive to seeking arbitration. The provider would pay the balance of the cost of the each dispute, which is likely to vary according to the length and complexity of the case.

9. The Director General proposes to appoint the arbitration body by means of a competitive tendering exercise to take place once the outcomes of this consultation exercise are announced. The likely key criteria for this tender are set out in this document.

10. The proposals for these procedures are set out in Chapter 4. These procedures are intended to address disputes where public operators with Significant Market Power (currently BT and, in Hull, Kingston Communications) take measures such as the interruption, termination or significant variation or reduction in the availability of services provided to organisations running telecommunication systems or providing telecommunication services.

11. In view of Oftel’s responsibility for and experience in dealing with complaints on related issues such as undue discrimination, anti-competitive behaviour and interconnection matters, Oftel considers that it is appropriate for it, rather than a third party, to be responsible for administering the procedures and for the Director General to make decisions on these matters.

12. The complaints would be dealt with in the same way that Oftel deals with complaints on other matters. There would be a Preliminary Enquiry Phase when initial consideration is given to decide whether there is a case to answer and whether to proceed to a full investigation. This would be followed by an Investigation Phase involving the gathering, analysis and assessment of more detailed information to allow the Director General to reach a decision and consider whether any enforcement action is needed under, for example, the Regulations implementing the RVTD, the Telecommunications Act 1984, the Competition Act 1998 or in order to enforce specific licence conditions.

13. The document also considers whether the procedures should be extended to address situations where operators who have not been determined as having Significant Market Power change the availability of the services they are offering. It concludes that this is not necessary, but comments are invited on this approach. In addition it asks whether the procedures should be available to all those to whom the services are provided, not just to organisations who themselves provide telecommunications systems or services. Again this document concludes that this is not necessary, but invites comments on this approach.

14. These proposed new procedures are in addition to Oftel’s existing powers and functions. It will therefore remain open to parties to refer to Oftel’s Consumer Representation Section or Compliance Directorate complaints about fixed telephony in the same way as they currently do.

15. This document seeks comments on the procedures which the Director General is proposing. There are a number of different ways that you can submit your comments to Oftel. These are set out towards the end of this document (before the annexes). The consultation period runs until 16 December, after which there will be a further two week period for comments to be made on the submissions received during the initial period.

16. This document is being sent in hard copy to consumer groups, the Advisory Committees on Telecommunications (ACTs), the Telecommunications Advisory Committees (TACs), fixed operators and service providers and groups representing them, organisations offering arbitration and mediation services, and other who have expressed an interest in this issue.

1.1 Consumer protection is one of Oftel’s key objectives. Under the Regulations implementing the Revised Voice Telephony Directive the Director General has been charged with setting up procedures to allow consumers, or any other party, with a dispute with certain fixed telecommunications operators or service providers to bring their case before Oftel or another independent body if they wish. The procedures must be fair, transparent, easily accessible, inexpensive and not involve unnecessary delay. The procedures are intended for unresolved disputes and Oftel would therefore expect to see parties continuing to take up their concerns with the relevant operator or provider in the first instance with a view to an mutually acceptable settlement before using these procedures. The Director General may, if he chooses, appoint a third party to assist in the resolution of, or to resolve, the disputes. Chapters 2 and 3 of this document set out and invite comments on the Director General’s proposals for these procedures.

1.2 The same Regulations also require the Director General to set up procedures to address situations where fixed public operators or systemless service providers, or at least those public operators or systemless service providers which have been determined as having Significant Market Power (currently BT and, in Hull, Kingston Communications) take measures such as the interruption, termination or significant variation or reduction in the availability of services provided, at least, to organisations running telecommunication systems or providing telecommunication services. The Director General’s proposals for these procedures are set out in Chapter 4. Comments are invited on these proposals.

1.3 The Director General’s obligations in respect of setting up these two dispute resolution procedures are set out in Regulations 21 and 37 of the Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998 (SI 1998 No. 1580) which implement the Revised Voice Telephony Directive (98/10/EC). Relevant extracts from the Regulations are set out at Annex 1 for ease of reference.

1.4 The Regulations provide that the dispute resolution procedures outlined in 1.1 and 1.2 above apply only to fixed telephony and not to public mobile telephone services and networks. Those with complaints about these matters should, as now, take these up with the mobile operator or service provider in question. Complaints may also be referred to the Consumer Representation Section at Oftel.

1.5 These proposed new procedures are in addition to Oftel’s existing powers and functions. It will therefore remain open to parties to refer to Oftel’s Consumer Representation Section or Compliance Directorate complaints about fixed telephony in the same way as they currently do.

1.6 It may be that in some cases the interests of a consumer or user would require a contract term to be altered. The Regulations have given the Director General new powers in such matters which would allow him to direct that contracts are altered in order to protect the rights of subscribers and users. Oftel will be issuing a separate consultation document on the use of these new powers.

1.7 This document seeks comments on the procedures which the Director General is proposing. There are a number of different ways that you can submit your comments to Oftel. These are set out towards the end of this document (before the annexes). The consultation period runs until 16 December, after which there will be a further two week period for comments to be made on the submissions received during the initial period.

1.8 As well as being posted on the Oftel website, this document is being sent in hard copy to consumer groups, the Advisory Committees on Telecommunications (ACTs), the Telecommunications Advisory Committees (TACs), fixed operators and service providers and groups representing them, organisations offering arbitration and mediation services, and others who have expressed an interest in this issue.

2.1 The Regulations provide that the procedures should be available to any party with a dispute (as outlined below in 2.3) with a public operator or systemless service provider. Thus residential consumers, business users and organisations providing telecommunications systems or services are all included.

2.2 The procedures are for disputes with fixed telecommunications ‘public operators’ and ‘systemless service providers’, that is those licensed to run a public telephone system and to provide publicly available telephone services and those who do not have a licence to run a system but do provide publicly available telephone services.

2.3 The Director General is required to put in place procedures to address disputes about matters within the scope of the (Open Network Provision) (Voice Telephony) Regulations 1998. In particular these procedures are intended for disputes about telephone bills or the terms and conditions under which telephone services are provided. The Regulations also include provisions in relation to entry in publicly available directories and directory information services and the availability of those directories and services, rights to contracts and the minimum contents of such contracts, number portability, itemised billing and a number of other areas.

2.4 The Director General is required to set up procedures which are fair, transparent, easily accessible, inexpensive, and do not involve unnecessary delay.

2.5 The Director General may, if he chooses, appoint a third party to assist in the resolution of, or to resolve, the disputes.

2.6 Oftel has looked at the two main approaches to resolving disputes other than by the parties taking legal action in the courts. These are arbitration and alternative dispute resolution (ADR).

2.7 Arbitration is designed to be a straightforward, quick, low-cost alternative to legal action. The parties do not have to appear in person, but instead evidence is generally submitted in writing (which can be in an informal format). The arbitrator or arbitrators then decide on the merits of the case put forward. The arbitrator’s decision is usually legally binding on both parties, in other words it is not open to appeal (except where the unsuccessful party considers that the arbitrator has misunderstood or misapplied the law, or is guilty of misconduct, when leave may be sought from the High Court) and can be enforced in court. It should also be noted that once a party has agreed to arbitration, that party cannot then go to court, except to enforce any decision made by the arbitrators.

2.8 The most common forms of ADR are mediation and conciliation. Negotiation is facilitated by a neutral third party whose purpose is to assist the parties to arrive at a settlement. The process is flexible and negotiable by the parties. A settlement is only usually binding if both parties are willing to sign a settlement agreement.

2.9 Oftel believes that arbitration would meet the criteria in paragraph 2.4 above and would be preferable to conciliation/mediation as it offers more finality. Conciliation/mediation could be a longer process and might not lead to an agreement in all cases. It may also be the case that the public operator or systemless service provider has already used a form of mediation or conciliation to attempt to resolve the dispute. In any event, arbitration bodies may investigate whether mediation/conciliation is a satisfactory approach as an initial possibility once a case has been referred to them.

2.10 Oftel proposes that the arbitrators should have the widest discretion permitted by law to resolve the dispute, including awarding compensation and instructing a party to take a particular course of action.

2.11 As mentioned above, the Director General may choose to appoint a third party to assist in the resolution of, or to resolve, disputes. Arbitrators and conciliators/mediators require special skills. Oftel believes that it would be most sensible to contract this work out, through a competitive tendering process, to one of a number of independent organisations with the necessary expertise. Annex 2 sets out some of the key criteria against which bids might be judged and includes such matters as costs of the procedures being as low as possible without any consequent loss of quality, relevant expertise in the field of telecommunications and in dealing with a wide range of complainants, and strong proposals for publicising the procedures.

2.12 To enable the Director General to monitor the number and types of disputes received and to identify disputes which might have wider implications and require Oftel to take action, such as licence enforcement action, the Director General will require the organisation appointed to provide him with regular reports.

2.13 Oftel would expect to see parties, as now, in the first instance taking up their complaints or disputes with the relevant public operator or systemless service provider with a view to a mutually acceptable settlement.

2.14 Where reasonable attempts to resolve the dispute have been unsuccessful, Oftel proposes that, where requested to do so by the other party to the dispute, the public operator or systemless service provider complained about must refer the dispute to the arbitration organisation appointed by the Director General. If the other party to the dispute is not satisfied, it would also be possible for that party to refer the dispute to the arbitration service and the public operator or systemless service provider with whom they are in dispute would be expected to comply with this.

2.15 Oftel proposes that the arbitrators should have the power to dismiss the case if, after considering the documents or other representations submitted by the parties, the arbitrator believes the dispute is outside the remit of the procedures or is frivolous or vexatious.

2.16 It is worth emphasising the point that there is no obligation on the party in dispute with its public operator or systemless service provider to refer the dispute to the arbitrators. If that party has contractual or other civil law rights they could instead chose to pursue these through the civil courts rather than use these proposed dispute resolution procedures (subject to the proviso, however, as mentioned above, that once a party has agreed to arbitration, that party cannot then go to court). Oftel considers that the dispute resolution procedures will prove attractive in many cases by offering a less expensive, more straightforward alternative to court action, but there may be cases where court action would be more appropriate, for example where an urgent injunction is needed to avoid serious and irreversible damage being caused to the party.

2.17 It will be important that public operators and systemless service providers are clear about the way the procedures will work, about the rights of the other party to the dispute to ask for the dispute to be referred to the arbitrators, and about their own obligations to refer the dispute to the arbitrators and obligations to submit to the procedures. To ensure that the procedures are as clear as possible Oftel will publish in hard copy and on the Oftel website the procedures determined as a result of this consultation. This should also assist public operators and systemless service providers providing access to a fixed public telephone system to meet the requirements placed on them by the Regulations to give a summary of these dispute resolution procedures in their contracts with subscribers. Oftel would expect the operators and providers to make the necessary changes to their contracts and communicate them to their customers before the procedures come into effect.

2.18 Oftel considers that publicity will help to ensure that the procedures are as effective and as accessible as possible. As mentioned above, Oftel would expect the independent arbitrators to develop a coherent promotion and publicity strategy for the procedures to ensure that all potential complainants and organisations about which a complaint could be made are aware of the procedures.

2.19 Oftel also proposes to publicise the procedures on the consumer page of its website, through its Consumer Representation Section and through other appropriate means to ensure the procedures are well publicised.

2.20 Comments are invited from public operators and systemless service providers on any arbitration or ADR procedures they have in place currently for disputes and of the future of these procedures in the light of the proposed new dispute resolution procedures. The latter will, of course, apply to all public operators and systemless service providers irrespective of whether they chose to retain current schemes.

2.21 The Regulations provide that in the case of a dispute about an alleged infringement of the rights or obligations created by or under the Regulations involving organisations in more than one Member State, a user or organisation may invoke, by written notification to the Director General and the European Commission, the conciliation procedure set out in Article 26 of the Revised Voice Telephony Directive. The Director General or the Commission may, where they find that there is a case for further examination, refer the matter to the Chairman of the ONP Committee who will then initiate the conciliation procedure if he is satisfied that all reasonable steps have been taken at national level. The Director General may also, where he finds that there is a case for further examination, on his own initiative, refer an alleged infringement involving organisations in two or more Member States to the Chairman of the ONP Committee following written notification to the Commission.

3.1 Where the Director General appoints a third party to resolve the disputes, he must when he appoints them make provisions for the payment of that third party’s reasonable costs and expenses. As mentioned above, Oftel will seek to keep the overall costs of the scheme at a reasonable level by making it one of the key criteria in the competition for the contract to provide the arbitration services that the costs are kept as low as possible without any consequent loss of quality.

3.2 Oftel considers that the procedures should be self-financing, that is the costs of setting them up and running them should be met by those using the procedures, in other words the parties to the disputes.

3.3 Oftel considers that the costs of setting up and running the procedures should be structured so that they are met through the fees for each individual dispute referred to the arbitrators (which would be met by the parties to the disputes). Oftel favours such a scheme over a system of fixed sum contributions at, say, the beginning of each year, because it would more fairly reflect the actual number of disputes between users and particular public operators and systemless service providers.

3.4 The Director General is required by the Regulations to ensure that the procedures allowing parties to have their disputes with public operators or systemless service providers heard are ‘easily accessible’ and ‘inexpensive’. In light of this and Oftel’s view that the Revised Voice Telephony Directive, with its stated aim of ensuring the availability of good quality fixed public telephone services and access by all to certain services at an affordable price, can be seen as a consumer protection Directive, Oftel considers that public operators and systemless service providers with whom the party has a dispute should meet the majority of the costs of the procedures.

3.5 Oftel considers that the party with a dispute with the public operator or systemless service provider should meet their own costs of preparing the case, such as photocopying and postage. It is intended that the procedures will allow the parties to present their cases without the need for legal representation. Where the party does chose to be legally represented then that party would also need to bear the costs of that legal representation. Oftel proposes, however, that the arbitrators should have the power, in exceptional circumstances to make the operator or sytemless service provider with whom the party is in dispute refund that party’s costs where the operator or systemless service provider has conducted the proceedings in such a way that he has caused the other party avoidable expense.

3.6 In addition the party would pay a small, and in certain cases returnable, fixed charge. The fixed charge would be returned to the party in dispute with the public operator or systemless service provider where the arbitrators find in favour of that party. This fixed charge to initiate the procedures should discourage frivolous claims and would mean that a contribution to towards the costs of the procedures would be made in some cases.

3.7 Oftel envisages a fixed charge in the region of £15-£20 is likely to be significantly below the average cost for handling a dispute but would provide a reasonable balance between discouraging frivolous claims whilst not being a disincentive to seeking arbitration. Oftel is concerned that anything other than a minimal sum such as this for the party in dispute with public operator or systemless service provider is likely to be a major disincentive to them making use of these procedures.

3.8 The public operator or systemless service provider with whom the party is in dispute would pay the remainder of the fee charged by the arbitrators. This fee may vary from dispute to dispute depending on the length and complexity of the case. The public operator or systemless service provider would also return the fixed charge paid by the other party to the dispute where the arbitrators find in favour of that party.

4.1 The Director General is required to ensure that procedures are put in place to address situations where fixed public operators or systemless service providers, or at least those public operators or systemless service providers which have been determined as having Significant Market Power (currently BT and, in Hull, Kingston Communications) take measures such as the interruption, termination or significant variation or reduction in the availability of services provided, at least, to organisations running telecommunication systems or providing telecommunication services.

4.2 The Regulations provide that the procedures must be transparent and must give the parties an opportunity to state their case. A reasoned decision must be given for the decision reached.

4.3 The Regulations provide that as a minimum the procedures must address situations where fixed public operators or systemless service providers which have been determined as having Significant Market Power terminate, interrupt, or significantly vary or reduce the availability of services provided by them.

4.4 Oftel has considered whether the procedures should extend beyond the minimum requirement by bringing within the ambit of the procedures all fixed public operators or systemless services who make changes to the availability of the services they are offering. Oftel considers that the requirements should not be extended in this way. This is because markets where operators do not have SMP are likely to be sufficiently competitive. If such a case were to occur the user of the service should be able to change to an alternative source of supply. This reflects Oftel’s stated view that it should draw back from detailed prescriptive regulation wherever practical and instead allow market forces to operate. Where there is a strong demand for a particular service then it is likely that providers will want to offer that service.

4.5 The Regulations provide that as a minimum the procedures must apply to services made available to providers of fixed public telephone systems or services. Oftel has considered whether the procedures should be extended to other users of services provided by those with Significant Market Power. Oftel considers that the procedures do not need to be extended in this way. Users are already entitled and will continue to be entitled to make a complaint to Oftel where they consider that an SMP operator is breaching its licence by not providing the basic services which their licence requires it to provide. It is also open to users to take the matter up with the SMP operator directly, by using the general dispute resolution procedures or to use the courts, depending on the precise subject matter if the dispute.

4.6 In view of Oftel’s responsibility for and experience in dealing with complaints on related issues such as undue discrimination, anti-competitive behaviour and interconnection matters, Oftel considers that it is appropriate for it, rather than a third party, to be responsible for administering the procedures and for the Director General to make decisions on these matters. Oftel anticipates that it should be able to do so within existing resources.

4.7 As mentioned above, the Regulations provide that the procedures must be transparent and must give the parties an opportunity to state their case. A reasoned decision must be given for the decision reached. Oftel proposes to deal with complaints about availability of services in the same way as it deals with complaints on other matters. There would be a Preliminary Enquiry Phase when initial consideration is given to decide whether there is a case to answer and whether to proceed to a full investigation. Oftel would aim to inform the complainant of the outcome of this phase within 30 working days, normally 6 weeks. This would then be followed by an Investigation Phase involving the gathering, analysis and assessment of more detailed information to allow the Director General to reach a decision and consider whether any enforcement action is needed under, for example, the Regulations implementing the RVTD, the Telecommunications Act 1984, the Competition Act 1998 or in order to enforce specific licence conditions. Investigations vary in length. Some complaints will be complex to resolve but a successful and speedy resolution is more likely when a complainant provides Oftel with all relevant information at the start of the process. Oftel aims to complete the investigation phase for all complaints within 6 months. Upon completion of an investigation both the complainant and the organisation complained about would be advised of Oftel’s findings and the reasons for its decisions.

4.8 The organisation complained about and other interested parties as appropriate will be fully consulted throughout the process. In some cases it will not be possible to disclose all information for reasons of commercial confidentiality, but Oftel would always expect to be able to provide reasons sufficient to give the parties a reasonable understanding of any proposed decision. Oftel would propose to publish its decisions and the reasons for them.

4.9 Oftel will ensure that the details of the procedures are publicised and that potential users of the scheme are aware of how the procedures will operate. Oftel proposes to follow the proposals in Chapter 2 for the general dispute resolution procedures to ensure that any party to a dispute to be referred to Oftel is clear about the way the procedures will work and their obligations to submit to the procedures. Oftel will ensure that the details of the procedures are available in hard copy and published on the Oftel website and that users of the scheme are aware of how the procedures will operate and Oftel’s decisions will be published and publicised.

5.1 Oftel will wish to review the effectiveness of the chosen dispute resolution procedures in due course to ensure that they have met their aims. Oftel considers that a review will also be necessary in the light of the Government's wider review of the utilities and its intention to set up a Consumer Council for each of the utilities, including telecommunications.

5.2 The Government’s proposals for the Consumer Councils are set out in the Department of Trade and Industry document, A Fair Deal for Consumers: Modernising the Framework for Utility Regulation: Consumer Councils, the Response to Consultation, April 1999. This announced that the Government intends to give the Consumer Councils the task of handling consumer complaints against utility companies where these have not been resolved by the companies concerned. The Councils would be expected to try to mediate a satisfactory outcome between the company and the complainant. Where further action such as enforcement action may be required the Councils would also pass the complaint on to the appropriate regulatory authority. The Government also anticipates the Councils working constructively with the utility companies to reduce the causes of complaints.

5.3 Clearly there could be some overlap between the work of the Telecommunications Consumer Council in seeking to mediate unresolved consumer complaints and the dispute resolution procedures consulted on under in this document. Oftel therefore intends to review in due course the procedures for dispute resolution set up following this consultation to ensure that the regime for resolving consumer disputes is clear and straightforward and in line with the proposals for the Consumer Councils.

5.4 Primary legislation is required to set up the Consumer Councils. The Government intends to introduce a Parliamentary Bill as soon as Parliamentary time permits. In light of the fact that a Bill has not yet been introduced, it is unlikely that any change to the procedures decided upon as a result of this document will be needed for some time.

The initial consultation will run until 16 December followed by a further period up to 30 December during which comments are invited on any submissions made to Oftel during the initial period. Comments are invited in particular on questions highlighted in the text of the document.

Written comments should be submitted to:

Dilbinder Dhillon
Oftel
50 Ludgate Hill
London
EC4M 7JJ

Fax: 0171 634 8847
E-mail

Written comments may be made publicly available in Oftel’s Research and Intelligence Unit and on Oftel’s website except where respondents indicate that their response or parts of it are confidential. Respondents are therefore asked to separate out any confidential material into a confidential annex which is clearly marked as such. In the interests of transparency, respondents are requested to avoid confidentiality markings wherever possible. Confidential responses should not be sent via the Internet.

Oftel is willing to set up a link between this document on Oftel’s pages and any responses placed on respondents’ own Internet pages. Please contact Lauren Ryner at Oftel on 0171 634 8753 or e-mail should you wish to arrange this.

Oftel documents are also available in alternative formats. Copies on disk in various formats and in large print are available. We also offer braille and tape copes of the summary on request.

Please contact the Oftel Research & Intelligence Unit on 0171 634 8617, or e-mail, or call Textphone 0171 634 8769 for more information.

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21. – (1) The Director shall ensure that procedures are in place to address situations where:

1. public operators or systemless service providers; or
2. at least public operators or systemless service providers providing voice telephony services and which are operators having significant market power;

take measures such as the interruption, termination, significant variation or reduction in the availability of services provided at least to organisations running telecommunication systems or providing telecommunications services or both.

(2) The parties shall abide by a decision, taken in accordance with such procedures, without prejudice to their right to apply to a court, save insofar as the parties concerned have entered into an agreement which provides otherwise for the resolution of disputes between them.

(3) The procedures referred to in paragraph (1) above shall:

1. be transparent, and shall give both parties to a dispute an opportunity to state their case;
2. provide for a reasoned decision to be notified to the parties by the Director within one week of its adoption.

37. – (1) The Director shall ensure that procedures are in place to address disputes between any party, including users, service providers, consumers or organisations providing telecommunication systems or services, and a public operator or systemless service provider concerning an alleged infringement of any right or obligation created by or under these Regulations. These procedures shall, in particular, apply in cases where users are in dispute with a public operator or systemless service provider over their telephone bills or over the terms and condition under which telephone services are provided.

(2) The procedures referred to in paragraph (1) shall be fair, transparent, easily accessible and inexpensive and shall not involve unnecessary delay. If the Director makes a direction appointing a third party to assist in the resolution of, or to resolve, the dispute, the direction shall include provisions as to the payment of such a person’s reasonable costs and expenses and the procedures to be adopted by that person.

(3) Where a dispute is brought before the Director concerning an alleged infringement of the rights or obligations created by or under these Regulations involving organisations in more than one Member State, and a user or organisation by means of a written notification to the Director and Commission invokes a conciliation procedure, the Director may, where he finds that there is a case for further examination, refer the matter to the Chairman of the ONP Committee.

(4) The Director may refer an alleged infringement of this Directive involving both organisations in more than one Member State to the Chairman of the ONP Committee on his own initiative, following written notification to the Commission.

(5) The party invoking the procedure in paragraph (3) above shall bear its own costs of participating in that procedure. That procedure shall be without prejudice to the rights of any person to apply to a court, save insofar as the parties concerned have entered into an agreement which provides otherwise for the resolution of disputes between them.

(6) The provisions of this regulation shall be without prejudice to the power of the Director to direct that the conditions of contract or of compensation of refund schemes or both shall be altered in accordance with regulation 15(4) or 16(2).

A2.1 Oftel proposes to issue an invitation to tender. That invitation would specify the requirements of the contract and criteria against which the applications would be judged.

A2.2 A key objective will be to ensure that the costs of using the procedures are kept as low as possible without any consequent loss of quality.

A2.3 Oftel would also be looking for organisations and their arbitrators to have relevant expertise in the field of telecommunications and also in dealing with a wide range of complainants ranging from residential consumers to business consumers and organisations providing telecommunications systems and services.

A2.4 The successful contractor will be required to provide the Director General with regular reports to enable Oftel to take any licence enforcement action which arises or to investigate any competition matters or other issues which fall within its remit.

A2.5 Oftel would expect the independent arbitrators to develop a coherent promotion and publicity strategy for the procedures to ensure that all potential complainants and organisations about which a complaint could be made are aware of the procedures.

A2.6 Oftel will publish the invitation to tender document on the Oftel website and will send a hard copy of the tender document to all those who express an interest in the tender and for information to all those who respond to the consultation.

The Commission – The Commission of the European Communities.

Consumer – For the purposes of the Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998, any natural person who uses a publicly available telecommunications service for purposes which are outside his trade, business or profession.

Director General – The Director General of Telecommunications appointed under section 1 of the Telecommunications Act 1984.

Fixed publicly available telephone services – means the provision to end-users at fixed locations of a service for the originating and receiving of national and international calls, including voice telephony services and may include, in addition, access to emergency ‘112’ services, the provision of operator assistance, directory services, provision of public pay telephones, provision of service under special terms or provision of special facilities for customers with disabilities or with special social needs but does not include value added services provided over the public telephone system.

Interconnection – the physical and logical linking of telecommunications networks used by the same or a different organisation in order to allow the user of one organisation to communicate with users of the same or another organisation or to access services provided by another organisation. Services may be provided by the parties involved or other parties who have access to the network.

ONP Framework Directive – Council Directive 90/387/EEC on the establishment of the internal market for telecommunications services through the implementation of open network provision as amended by European Parliament and Council Directive 97/51/EC[7] for the purpose of adaptation to a competitive environment in telecommunications.

ONP Committee – The Committee created by Article 9(1) of the ONP Framework Directive.

Operator having significant market power – a public operator which the Director General has determined to be an operator having significant market power in accordance with regulation 6 (1) of the Regulations; or a systemless service provider which the Director has determined to be an operator having significant market power in accordance with regulation 6(2) of the Regulations.

Public operator – A person to whom a licence has been granted under section 7 of the Telecommunications Act 1984 authorising the running of a public telephone system and the provision of publicly available telephone services.

Public telephone system – Telecommunication system forming part of the fixed public telephone network (or a mobile pubic telephone network).

The Regulations – The Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998.

The Revised Voice Telephony Directive – means Directive 98/10/EC of the European Parliament and of the Council on the application of open network provision to voice telephony and on universal service for telecommunications in a competitive environment.

Subscriber – A person who is party to a contract with the provider of publicly available telecommunications services for the supply of such services.

Systemless service provider – A person who provides publicly available telephone services but who does not run a telecommunication system within the meaning of section 4 of the Telecommunications Act 1984 by means of which such services are provided.

User – A person using or requesting publicly available telecommunications services.

Voice telephony service – A service available to the public for the commercial provision of direct transport of real-time speech via the public switched network or networks such that any user can use equipment connected to a network termination point at a fixed location to communicate with another user of equipment connected to another termination point.