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| Resolving disputes between Fixed Telecommunications Service Operators | |
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A Statement issued by the Director General of Telecommunications on procedures for resolving certain disputes brought under the Revised Voice Telephony Regulations (RVTD Regulations) where fixed public operators or fixed systemless service providers which are also operators having Significant Market Power ("SMP") terminate, interrupt, reduce or vary significantly the availability of services provided to other organisations providing Telecommunications Services or Systems September 2000Chapter 1 Introduction Chapter 2 When Oftel will investigate disputes between operators Chapter 3 How Oftel will investigate these disputes Annex Regulations 21 and 38 of the Telecommunications (Open Network Provision) (Voice Telephony) Regulations, 1998 1. In September 1999, Oftel consulted on proposals under the RVTD Regulations to put in place procedures to address situations where public operators are in dispute with each other. In particular, it concerned situations where operators with Significant Market Power ("SMP") (currently BT and, in Hull, Kingston Communications) take measures that interrupt, terminate or significantly vary or reduce the availability of services provided to other organisations running telecommunication systems or providing telecommunication services. Scope of dispute resolution 2. That consultation considered whether the proposed procedures should be extended to address situations where operators who have not been determined as having SMP change the availability of the services they are offering. Oftel also sought views on 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. 3. As a result of that consultation, Oftel is of the opinion that it will only need investigate disputes concerning services made available by operators with SMP to providers of fixed public telephone systems or services. This is because operators without SMP will normally be operating in a market that is competitive, and their customers would therefore have the option of changing to an alternative source of supply if the dispute cannot be resolved through negotiation. Oftel to investigate and decide 4. Oftel has taken the view that, in light of its experience in dealing with complaints on other but related issues, it was also appropriate for it, rather than a third party, to investigate and determine on this type of dispute. Respondents to the consultation endorsed that view. Standard procedures 5. This type of dispute will be dealt with in a similar way to that in which Oftel deals with other matters. There will be a Preliminary Investigation Phase after which Oftel will decide whether there is a prima facie case to answer. If there is a full investigation will follow. The full Investigation Phase involves the gathering, analysis and assessment of sufficient information to allow the Director General to decide whether any enforcement action is needed under the Regulations implementing the RVTD.
Introduction 1.1 In September 1999, Oftel issued a Consultation Document covering the requirements of the Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998 (SI 1998 No. 1580) ("the RVTD Regulations") which implemented the Revised Voice Telephony Directive (98/10/EC). That document consulted on the suggested ways to resolve a dispute between operators or service providers, as set out in full below, and between consumers and their operator/ service provider in accordance with the RVTD Regulations. 1.2 This statement details the conclusions Oftel has reached on the subject of resolving disputes between operators. It sets out the grounds upon which Oftel will investigate allegations that public operators and/or service providers have terminated, interrupted, reduced or varied significantly the availability of services provided to organisations providing Telecommunications Services or Systems. In addition, it details the procedures Oftel will use to undertake such investigations and resolve disputes. 1.3 There will be a further statement in due course dealing with the conclusions Oftel has reached regarding the resolution of disputes between consumers and their operators. However, at present, if a consumer and/or an operator wanted to bring a dispute to Oftel for consideration, Oftel would consider it in accordance with its compliance/complaints procedure. References 1.4 The Director General’s obligation in respect of setting up these procedures is set out in Regulation 21 of the RVTD Regulations. The Director General can enforce a decision made in accordance with Regulation 21 through Regulation 38. An extract from both Regulations is set out in the Annex to this Statement.
When Oftel will investigate disputes between operators Operators and providers with Significant Market Power 2.1 Oftel is required by the Regulations to have in place procedures sufficient at least to address situations where fixed public operators or systemless service providers which have at least been determined as having Significant Market Power (SMP) terminate, interrupt, or significantly vary or reduce the availability of services provided by them. 2.2 In the Consultation Document of September 1999, Proposed New Dispute Resolution Procedures for Fixed Telecommunications, Oftel considered whether its procedures should be extended beyond the minimum requirement by bringing within its ambit all fixed public operators or systemless service providers who make changes to the availability of the services they are offering. 2.3 In that Consultation Document, Oftel proposed that these powers be limited to deal only with disputes concerning operators with SMP. Bottlenecks 2.4 In response to that consultation one respondent suggested that the powers should be extended to cover those who control bottlenecks, in addition to those with SMP. Oftel is still of the opinion that such an extension is unnecessary. All operators without SMP, including those who might have a degree of bottleneck control, will normally be operating in a market that in the wider sense is competitive. Even where there is a degree of localised network control, Oftel believes that it will continue to be in the interests of operators to co-operate with each other. 2.5 Normally, if a dispute arose in such a market the user of the service would be able to change to an alternative source of supply. That is consistent with 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. 2.6 Alternatively, if a particular bottleneck were being exploited to the detriment of market forces, Oftel would be prepared to look into the matter on the basis that such exploitation could be anti-competitive rather than because it contravened this Regulation. Eligibility for dispute resolution 2.7 The RVTD Regulations require that the procedures to resolve disputes concerning services be made available to providers of fixed public telephone systems or services. 2.8 Again, Oftel considered whether the procedures should be extended to other users of services provided by those with SMP. 2.9 Oftel considered that the procedures did not need to be extended in this way. This was because users were already entitled and would 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 other dispute resolution procedures or the courts, depending on the precise subject matter of the dispute. Oftel received no comments or objections to this proposition. 2.10 Accordingly, Oftel will only investigate those disputes concerning services made available by fixed public operators with SMP to organisations providing fixed telecommunications systems or services. Dispute Resolution 2.11 In the Consultation Document, Oftel expressed the view that in the light of its previous experience in dealing with complaints on related issues such as undue discrimination, anti-competitive behaviour and interconnection matters. Oftel concluded it would be appropriate for it, rather than a third party, to continue to be responsible for resolving a dispute. Having considered comments received in response to that consultation, Oftel remains of this view. Oftel expects that it will be able to do so within its existing resources, but will review this if necessary. Principles 2.12 Oftel is required by the RVTD Regulations to ensure that its investigations into disputes between operators are transparent and give the parties an opportunity to state their case, and that reasons are given for the decision reached. 2.13 In light of the responses to the Consultation, Oftel considered that its standard investigation procedures met these criteria. 2.14 Oftel will, therefore, use its standard procedures, as summarised in Chapter 3, to investigate disputes between operators or service providers with SMP concerning the interruption, termination or significant variation or reduction in the availability of services provided to other organisations running telecommunication systems or providing telecommunication services.
How Oftel will investigate these disputes Standard investigation procedure3.1 As previously stated, Oftel will follow its standard investigation procedures, as used for instance to investigate allegations of anti-competitive behaviour or licence breaches. Preliminary Investigation 3.2 When a dispute is brought to Oftel there will be a Preliminary Investigation Phase in order to decide whether there is a prima facie 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. Investigation 3.3 If the dispute remains unresolved at this stage, and it is one that Oftel believes it is appropriate to assist with, there will follow an Investigation Phase. A full investigation involves the gathering, analysis and assessment of sufficient detailed information to allow the Director General to reach an informed decision on whether any enforcement action is needed. 3.4 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 investigation phase. Oftel aims to complete the investigation phase for complaints within 6 months. 3.5 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 decision. Enforcement 3.6 In many instances, the parties to a dispute will come to an agreement before Oftel’s investigation is complete. However, in certain circumstances, it may be necessary for the Director General to enforce his decision against one or both of the parties. 3.7 Before doing so, the Director General will consult publicly on his conclusion as to how the dispute in question should be settled. That consultation should involve at least all the interested parties. The extent of such a consultation process will depend upon the nature of each individual investigation but "interested parties" might include representatives of organisations running telecommunication systems, representatives of users, consumers, manufacturers and service providers. At the completion of such a consultation, the Director General can direct that the relevant operator or operators settle the dispute in the way he has indicated. 3.8 If necessary, the Director can, through Regulation 38 of the RVTD Regulations, enforce his decision on the resolution of a dispute of this kind by civil proceedings for an injunction or, in Scotland, an interdict or any other appropriate relief. Right of appeal 3.9 Any decision regarding the enforcement of a resolution to a dispute of this type by the Director General can be appealed through application to the courts by a dissatisfied party to the dispute or a person whose rights or interests are materially affected by the Director General’s decision. The appeals procedure is set out in full in the Telecommunications (Appeals) Regulations 1999 (SI 1999 No. 3180). Transparency - communication & publication 3.10 The complainant, the organisation complained about and such other interested parties as is appropriate would be fully consulted throughout this process. In some cases, it may not be possible to disclose all information for reasons of commercial confidentiality, but Oftel will always endeavour to provide reasons sufficient to give the parties a reasonable understanding of any proposed decision. 3.11 Oftel will regularly publish summaries of the disputes between operators that it has resolved in its Competition Bulletin. Further information 3.12 If you wish to discuss the complaints procedure in more detail, you may contact Mohinder Mahi Tel: 020 7634 8872 or e-mail
The Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998 Conditions of access and use and essential requirements "21. – (1) The Director shall ensure that procedures are in place to address situations where:
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:
(4) The Director may make a direction appointing a third party to assist in the resolution of, or to resolve, the dispute, and such a 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. (5) A summary of the procedures referred to in paragraph (1) above shall be published in accordance with regulations 17 and 18 [...]" Enforcement of Regulation… 21… "38. Without prejudice to any right which any person may have by virtue of any provision in these Regulations or otherwise to bring civil proceedings in respect of any contravention or apprehended contravention of any duty referred to in such provision […] compliance shall be enforceable by the Director by civil proceedings for an injunction or interdict or any other appropriate relief."
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. 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 RVTD Regulations; or a systemless service provider which the Director has determined to be an operator having significant market power in accordance with paragraph 6(2) of the RVTD 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 RVTD 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. 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.
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