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| Dispute resolution under the new EU Directives: A consultation by Oftel and the Radiocommunications Agency | |
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4
November 2002 
ContentsChapter 1 Introduction Chapter 2 The role of dispute resolution under the new Directives Chapter 3 A step change for Oftel and the industry Chapter 4 Consultation, procedures and targets for different types of cases Chapter 5 Details of consultation Annex A Draft format for submitting a request to Oftel to resolve a dispute S.1 This document sets out how Oftel and the Radiocommunications Agency (RA) will meet the new deadline for dispute resolution set out in Articles 20 and 21 of the new European Framework Directive. Under the new Directives, Oftel and RA will resolve disputes in four months. The obligations following from the Directives will, of course, be transferred to OFCOM. Oftel and RA are discussing with other OFCOM partners how best to ensure that the design, culture and working practices of the new body similarly allow the deadline to be met when OFCOM becomes fully operational later in 2003. S.2 In competitive markets, disputes regularly arise between undertakings. Market forces lead to these being resolved either through commercial negotiation or by some form of arbitration. Alternatively, the undertakings decide not to do business with each other. No issues of consumer detriment or public policy arise in this situation. In telecommunications, however, the presence of operators with significant market power and the existence of public policy reasons for specific obligations on those operators (and sometimes the generality of operators as well) means that market mechanisms may not always work effectively and/or that there will be a major welfare loss from a failure to agree. Regulation is therefore needed to ensure that neither of these outcomes occur. New deadline S.3 Oftel already has a duty to resolve a wide range of disputes and is bound by the duty in the Interconnection Directive to take steps to resolve disputes in six months. The new Directives reduce this deadline in relation to all classes of disputes (including disputes about the use of radio spectrum) under the new framework to four months. Meeting this target will be challenging for Oftel and RA and will require significant change in process and systems. Oftel has already made significant change to its Compliance function in the course of 2002. There have been changes to senior management responsibilities, an overhaul of the internal committee and decision-making structure, improvements in internal case monitoring and reporting and more flexible deployment of staff across the full range of cases. These changes and others which are planned are starting to lead to more rapid resolution of cases, but more needs to be done to ensure that the new deadline can be met. Oftel continues to work towards greater efficiency in its processes but some of the potential gains also require behavioural change on the part of both complainants and respondents. More changes S.4 Under the current regime, Oftel has often been asked to make major decisions about access obligations when resolving a dispute. Under the new regime, Oftel will be unable to introduce new specific regulatory obligations via dispute resolution. Such matters will be addressed via own initiative investigations or market reviews. Oftel will run such investigations and reviews promptly, but not within the four months dispute resolution procedures. Tighter submission requirements S.5 One unfortunate result of the existence of regulatory dispute resolution can be that complainants have an incentive to submit disputes without first establishing whether commercial negotiation is sufficient to resolve the issue. Oftel will specify what it needs to see before accepting a case in terms of clear evidence of commercial negotiation, clear statements by the complainant on their preferred solution, information and background to a complaint and a clear assessment of the precise condition which the target of the complaint is alleged to be infringing. Oftel will refuse to consider referrals that do not meet its published criteria. This will ensure that those complainants who have the strongest and most well developed cases are not penalised by Oftel staff having to clarify complaints which are less thoroughly prepared. Establishing the scope of a dispute S.6 Oftel will be more rigorous in establishing the scope of a dispute and in ensuring that this scope does not change in the course of its investigation. Where negotiations have broken down Oftel will therefore expect complainants to be definite about the precise issues in dispute or the precise terms of a contract to which they object. When accepting a dispute, Oftel will publish a statement of the scope for that dispute and will not, except in special circumstances, broaden the scope during its investigation. Alternative dispute resolution S.7 The Directives allow National Regulatory Authorities (NRAs) to refuse to determine disputes if Alternative Dispute Resolution (ADR) mechanisms are available. As a general rule, Oftel will decline to adjudicate disputes between operators which are not dominant and will encourage them to use some form of ADR. The one exception may be in cases when an obligation has been imposed on operators without SMP and the dispute refers directly to this obligation. Formal information gathering powers S.8 To meet the new deadlines Oftel will need to use its formal information gathering powers more frequently. As a general rule, therefore, Oftel will seek all the information that it needs to resolve the dispute, using its formal powers. Oftel will send a draft of the information request and offer five working days for comment on any questions of practicality in providing the information. The requests will be amended or confirmed in the light of any such representations and Oftel will not normally agree to extend the deadline specified in the final request. Oftel is implementing this change with immediate effect as it will enhance the service it can offer under the current regime. Transparency and consultation S.9 Oftel attaches great importance to maintaining transparency, to the extent that commercial confidentiality allows, in the course of its dispute resolution. To this end the current Competition Bulletin, which is published quarterly, will become a web-based document on which disputes are published as they are accepted. S.10 Publication of the scope of the dispute will act as an invitation to any interested party to make representations and submit information and evidence - although no additions will be made to the list of parties directly involved in the dispute. This process will partly replace the current period of 28 days consultation on the proposed solution to the dispute. Oftel will hold further consultation only where it intends to make a determination that directs the parties to enter into an agreement or fixes/alters terms and conditions of transactions. Such consultations will usually be for ten working days. Oftel will not consult where it concludes that existing arrangements should remain. Where consultation is necessary, Oftel will always consult parties directly involved in a dispute and may also hold a wider consultation where the issue is of interest to a significantly large number of stakeholders to justify it. Targets for other types of casework S.11 The specific proposals in the document relate only to disputes under Articles 20 and 21 of the Framework Directive. However, the document also deals with targets for Oftel's other responsibilities, including targets under the Competition Act 1998 (the CAct), own initiative investigations under the new Directives and consumer complaints on unfair contract terms. Oftel will set similarly tight targets under these jurisdictions, although these are for purposes of internal management and accountability, rather than having a statutory base. Go live date April 2003 S.12 It is Oftel's intention (subject to views received as part of this consultation) to begin working with the new procedures with effect from 1st April 2003 to ensure that any 'teething troubles' are identified early and removed for when a statutory obligation takes effect in July 2003. Table 1: Summary of changes from April 2003
Any comments? S.13 Stakeholders are invited to submit comments on the new arrangements before 3rd January 2003. S.14 In February or March 2003 Oftel intends to publish a statement setting out the details of the new arrangements. This statement will form a guide for stakeholders submitting disputes to Oftel and will be updated as necessary. Oftel will announce any changes to the statement but does not expect to hold further consultations on adjustments and amendments. S.15 RA customers are particularly invited to comment on the spectrum aspects discussed in this document. RA will aim to publish any statements in step with Oftel as far as it is applicable to do so.
Chapter 1Introduction1.1 During 2002 Oftel has improved its handling of disputes. Changes included the introduction of a virtual pool of case leaders and case sponsors and a new management office to handle the allocation of work and balance conflicts of resource and priorities. Oftel is still working on its internal changes, and current initiatives include an internal training programme developed specifically for investigative work as well as measures to bring about a greater focus on timeliness and quality. 1.2 The changes so far have proved successful and Oftel has only three cases that have been open longer than six months. All of these cases involve exceptionally difficult and complex issues (such as the consultation on Partial Private Circuits (PPCs)) or are complex Competition Act 1998 (CAct) investigations. 1.3 Oftel is not complacent and is aware that there is scope for further improvements in the way it handles disputes but in order to introduce all possible improvements it needs the co-operation of complainants and respondents. The catalyst for this drive towards greater efficiency is the new EU Directives that impose an obligation to resolve disputes within four months. Oftel is determined to meet the new deadline, in advance of the introduction of the new Directives, and this document sets out the areas where Oftel needs the industry’s co-operation. The new EU Directives 1.4 The new EU Directives establish a new framework for the regulation of electronic communications networks, services and associated facilities throughout Europe. These Directives entered into force on 24 April 2002. Member States have 15 months in which to transpose the provisions into national legislation and to bring all regulation into line with the new Directives. The Directives must be implemented in all Member States at midnight of the 24 July 2003, 15 months plus one day after entry into force. 1.5 The new package of Directives consists of:
1.6 The FD sets the overall framework, including objectives and principles, which Oftel must take into account when making regulatory decisions. In addition, the FD sets out the principle that, in most cases, market reviews must be carried out before regulation is imposed and that regulation is only to be imposed where the market is not effectively competitive ie where at least one operator has Significant Market Power (SMP). 1.7 In addition to setting out the framework described above, the FD sets out the obligation on NRAs to resolve disputes within the shortest possible time frame and in any case within four months except in exceptional circumstances. A summary of all of the new Directives can be found on Oftel’s web site at www.oftel.gov.uk. 1.8 Along with tighter timescales for dispute resolution, the new Directives will bring other challenges. Oftel expects the number of disputes dealt with under the new Directives to increase. The new Directives broaden the scope of dispute resolution beyond that of the current Interconnection Directive (see note one below) and Oftel’s current remit. This broadening of scope extends to cover certain types of disputes concerning rights to use radio spectrum and so the RA has joined with Oftel in preparing this consultation document in anticipation of the move to OFCOM. RA intends to adopt the proposals set out in this document for disputes relating to radio spectrum and has included some specific questions aimed at those stakeholders using radio spectrum. Oftel, RA, OFCOM and dispute resolution 1.9 In the long term, dispute resolution under the new Directives is a matter for OFCOM. The new Directives, however, need to be implemented before OFCOM is established by the Communications Bill (for details see http://www.communicationsbill.gov.uk). The DTI has explained that it may be necessary to carry out the implementation of the new Directives through regulations made under the European Communities Act to bridge any gap between the 25th July 2003 and the Communications Bill achieving Royal Assent. In this interim period and in the period between Royal Assent and OFCOM taking on all its functions both Oftel and RA expect to run disputes according to the procedures discussed in this document. The final statement in on dispute resolution will take account of any changes to the procedures specified by the Communications Bill. Scope and timing of the new procedures 1.10 Oftel welcomes any comments on this document by 3rd January 2003. Details of the consultation process are explained in chapter five. Oftel intends to publish a statement in February or March 2003 and the new procedures (as far as the current regulatory framework allows) will take effect from 1st April 2003. The final statement will replace all other guidelines in so far as they relate to dispute resolution including:
1.11 When the new Directives are implemented the procedures for dispute resolution will apply across the electronic communications sector to the extent that its regulation falls within Oftel’s or RA’s remit. Note: 1. European Parliament and Council Directive 97/33/EC.
Chapter 2The role of dispute resolution under the new DirectivesPolicy decisions and dispute resolution 2.1 In April 2000, Oftel published Proposals for implementing Oftel’s Strategy: 2000/01 Management Plan. This publication set out Oftel’s plans to implement regular reviews of the state of competition in various telecommunications markets and to adjust regulation according to the findings of the reviews. As described in Chapter 1, the new EU Directives adopt a similar strategy and generally require market reviews to be carried out before regulation is imposed on operators with SMP. 2.2 This structured process of market reviews and decisions about imposing or revoking obligations on SMP operators is clearly distinct from resolving disputes about how those obligations operate in practice. In the future, this distinction will be reinforced by the separation of OFCOM’s powers. The dispute resolution clauses (published separately from the rest of the Bill and available on the DTI’s web site at http://www.communicationsbill.gov.uk/Pub_New_Clauses_Disputes.htm) in the draft Bill divide powers into those that can be used to resolve a dispute and those which can be used to set, modify and revoke SMP conditions. 2.3 In the past, Oftel has addressed key policy issues via dispute resolution. With the reinforced distinction between dispute resolution and decisions to set, modify or revoke specific obligations, the dividing line between policy issues and dispute resolution becomes sharper. 2.4 Oftel has recently published guidelines on imposing access obligations under the new EU Directives and set out examples of the imposition of generic obligations via market reviews and the role of dispute resolution in clarifying these obligations where necessary. The division of these roles is shown in Figure 1. Figure 1: The division between policy decisions and dispute resolution for access obligations under the new regime
Dispute resolution and complaints about anti-competitive behaviour 2.5 Under the current regime, Oftel’s investigations are generated:
2.6 Oftel recently set out its strategy for addressing complaints (excluding interconnection disputes) about anti-competitive behaviour under the CAct in Oftel’s Competition Act Strategy, July 2002. In this publication, Oftel confirmed its intention to continue with its new strategy after the new Directives are implemented. 2.7 Under the new regime, disputes resolved by Oftel will not be limited to those issues dealing with interconnection but will include any dispute about regulatory obligations and/or any dispute between different providers of communications and/or associated facilities. In the communications industry, however, disputes between providers are generally about the availability of access products (the new EU Directives give a wide definition of access and make it clear that interconnection products form a sub-set of access products) and the terms and conditions on which these products are available. Oftel will generally address these disputes under the procedures set out in this document. In all other cases, Oftel’s current CAct strategy will apply. 2.8 The dispute resolution process is not an alternative process for matters correctly dealt with under CAct powers. Guidelines are available to assist stakeholders in submitting disputes and complaints to Oftel, and Oftel is prepared to discuss the most appropriate way for stakeholders to make a submission. If stakeholders bring a dispute to Oftel about issues that would be better addressed by a CAct investigation Oftel may choose to deal with the matter under the CAct. Figure 2: Guidelines on submitting disputes and complaints
2.9 As far as radio spectrum is concerned, disputes could arise from issues about access to radio spectrum based networks or services, or from interference to radio spectrum networks or services. It is not clear, however, whether these would more appropriately be dealt with as an enforcement matter, for example if the interference arises as a result of breach of conditions in licences or exemption regulations. As RA moves towards making greater use of market mechanisms, such as trading, especially if combined with liberalisation of licence conditions to allow more flexibility in how radio spectrum is used, disputes might be expected to arise more frequently. The independent review of radio spectrum management by Professor Martin Cave recommended that RA should explore the scope for transferring more responsibility to operators for managing interference. In its response, the Government said that it favoured devolving interference management where practicable but also agreed with the review that a credible and impartial service responsible for monitoring and enforcement would continue to be needed. Questions for stakeholders: What types of disputes about radio spectrum might be referred under the new Directives? Particular examples of issues would be extremely helpful. Are the available guidelines on submitting a dispute or complaint to Oftel sufficient? If not, what additional guidance is required? Retrospective decisions 2.10 The dispute resolution process is a means for the Director to swiftly resolve disputes that arise due to the particular nature of communications markets (ie disputes about access and interconnection involving players which are dominant). 2.11 Recently, Oftel has received an increase in the number of disputes requesting Oftel to retrospectively apply decisions which make adjustments to interconnect charges. A decision to make a retrospective determination will be taken on the merits of the case in hand. Oftel will consider what is reasonable and proportionate in the circumstances taking account of the ability of operators to have raised issues at an earlier date. However, operators should not seek retrospective decisions as a way to obtain compensation or damages from dominant operators for anti-competitive behaviour. 2.12 It is Oftel’s role to resolve disputes in such a way as to secure the objectives of the EU Directives. The question of damages or compensation are not issues that Oftel considers when resolving a dispute but are issues that should be pursued by complainants through the courts. The draft Communications Bill sets out that any person subject to conditions under the new regime owes a duty to any other person who may be affected by failure to meet its obligations. That is, an operator subject to an obligation owes a duty to other operators to comply with that obligation.
Chapter 3A step change for Oftel and the industry3.1 The move to a four month deadline for resolving disputes means that Oftel will cut its current targets by a third. Oftel must manage its resources efficiently in order to meet this challenge. This chapter sets out:
Concentrating on the most important issues 3.2 In contrast to some other European NRAs and NCAs, Oftel has deliberately lowered barriers to referring a dispute. Until now, Oftel has not set any formal requirements for the amount of information and evidence complainants need to submit before Oftel will accept a dispute although it has published guidelines for stakeholders. While there are clear advantages to the absence of barriers in bringing an issue to Oftel’s attention, there are considerable disadvantages from the point of view of resource management and assigning any kind of priority status to key issues. 3.3 Once Oftel accepts a dispute it is obliged to assign resources to resolving it regardless of the dispute’s relative importance. With a low requirement for collecting information and evidence to support a submission, operators have few incentives to be selective about which issues to refer to Oftel. In addition to encouraging trivial disputes, the absence of clearly laid-out submission requirements means that Oftel has to spend time at the start each dispute resolution process collecting information, clarifying the scope of a dispute and, on occasion, verifying that a dispute actually exists. 3.4 The Communications Bill supports the objective of directing resources at those issues where genuine difficulties exist, by permitting OFCOM to seek to recover its costs from operators which abuse the right to bring a dispute by making frivolous or vexatious references. In addition, investigations involving disputes about radio spectrum are likely to be very resource intensive (eg involving technical compatibility tests or monitoring), and the Bill gives OFCOM the right to charge a fee for the work done in resolving a such disputes. 3.5 In the future, before Oftel will accept a dispute, complainants will be required to submit clear information on all details of the dispute including:
3.6 Full details of the required format and content of a dispute referral to Oftel are included in Annex A. A similar format might be envisaged for radio spectrum disputes. Questions for stakeholders: Do you agree that the threshold (in terms of the provision of information and evidence) to bringing a dispute to Oftel need to be raised? If not, why not? Can the requirements, as set out in Annex A, be made more clear? If so, how? Under what circumstances would you have difficulty in providing all of the requested information? What is in dispute? 3.7 Submissions occasionally refer entire contracts as being the subject of a dispute, but without specifying which clauses are contentious. Oftel recognises that when a large number of operators are involved it can be difficult to specify the scope of the dispute precisely. However, when working to the new deadlines it will no longer be possible for Oftel to spend time in the early stages clarifying the scope of the dispute. 3.8 The scope of disputes about access products is another problem area. It is often the case that commercial negotiations over access have fallen at the first stage but operators have nonetheless made a reference to Oftel covering not only the availability of the product but also the availability of related products, terms and conditions, pricing structures and service level agreements. 3.9 Under the new procedures, at the beginning of the resolution process Oftel intends to publish a statement on the scope of each dispute. Once this scope is established, apart from in special circumstances, Oftel will not alter it during the investigation. Any issues that have been included in the submission but on which commercial negotiations have not taken place will not be included in the statement of scope and will not be addressed by Oftel. Questions for stakeholders: Under what circumstances do stakeholders have problems in specifying the scope of a dispute? Is Oftel’s proposal practical? Are there better ways for Oftel and complainants to quickly agree on the scope of a dispute? Resolving disputes between operators which are not dominant 3.10 As discussed earlier, Oftel believes that the role of dispute resolution is to address problems that arise as the result of the particular nature of electronic communications, or are disputes involving an operator with market power. It follows that resolving issues that would (in the absence of a regulator) be resolved through normal commercial negotiations should not be a priority for Oftel. The most obvious cases in this category are disputes between providers where the parties are not dominant in the relevant market. The exception is where a regulatory obligation (eg a general obligation about number portability) has been imposed on operators which are not dominant and the dispute refers directly to this obligation. 3.11 The Directives (and the Bill) make provision for NRAs to use ADR. As a general rule, Oftel considers that ADR should be used to resolve disputes between operators which are not dominant. Alternative dispute resolution 3.12 The Directives allow Oftel to decline to resolve a dispute where alternative mechanisms exist. The success of ADR depends on the incentives of the parties involved to reach a solution but practical considerations such as the numbers of operators involved in a dispute also influences the suitability of ADR as a dispute resolution mechanism. 3.13 Oftel will assess the suitability of declining to resolve a dispute to ADR on a case by case basis but the following table gives an indication of the types of factors that Oftel will consider. Table 2: Examples of factors influencing the decision to decline to resolve a dispute
3.14 As discussed above, Oftel considers that when a dispute exists between providers which are not dominant, regulatory intervention is inappropriate, and Oftel is likely to decline to resolve these types of disputes. Oftel is rarely, if ever, called on to resolve disputes between two providers which are dominant in the same market. This may reflect the nature of the markets within Oftel’s remit but may also indicate that where the balance of market power is equal, parties are more likely to reach a resolution via commercial negotiation. Figure 3: Where market power is equal, parties may be more likely to reach commercial agreement
3.15 A review of 50 cases in the last two years that have been referred to Oftel suggests that only about 10% of these disputes would have been suitable candidates for ADR. Oftel considers it unlikely, therefore, that a dedicated panel set up by Oftel would be cost effective, particularly when there are a number of commercial organisations providing ADR services. Oftel is aware of a number of organisations, including the following, all of which provide dispute resolution services:
3.16 These organisations have a great deal of experience in the provision of ADR services. They can provide ad hoc services or, where requested, are able to develop ADR schemes for specific industries. Even without an industry specific scheme, Oftel considers that the number of commercial organisations offering dispute resolution services means that alternative means for the resolution of disputes by Oftel is available. 3.17 Due to the fact that radio spectrum disputes are likely to be complex issues about interference or spectrum use compatibility, it may be that disputes about radio spectrum are not suited to ADR. Views on this would be welcome. Questions for stakeholders: What additional factors should be considered when making a decision that ADR is appropriate? Is ADR likely to be less suitable for radio spectrum disputes? The responsibility of the industry – information requests 3.18 Collecting the information needed to resolve a dispute is resource-intensive. A common reason for delays in resolution is that Oftel receives late or incomplete replies to its information requests. Oftel generally adopts an informal approach to collecting information, only relying on its formal powers as a last resort. In most cases, stakeholders appreciate and prefer this informal approach. When working to a four month deadline, however, there will be no slack time to allow for delays in collecting information. 3.19 It is not always productive to collect information using formal powers and it can be more efficient to collect general or background information on an informal basis. However, where specific critical information is required as part of a dispute resolution process, Oftel will use its formal powers to collect it. 3.20 Difficulties in collecting information are increasingly causing delays in Oftel’s current dispute resolution processes. With immediate effect, therefore, it will be Oftel’s usual practice, except in special circumstances, to issue requests for information under the Telecommunications Act 1984, or a telecommunications licence as a draft, allowing five working days for representations to be made on the practicality of providing the requested information by the specified deadline. Oftel will then generally confirm or amend the information request within two working days and would not expect to agree to an extension to the deadline. 3.21 The overall timescale for dispute resolution is to be set by legislation and will be challenging, and Oftel will in turn need to set challenging deadlines for responses to information requests. Operators that are routinely sent information requests should consider the need to put in place adequate mechanisms and be prepared to divert resources to meet Oftel’s deadlines. Making decisions based on the best information available 3.22 The time available for collecting information is limited. In a four month dispute resolution period, Oftel must timetable its activities carefully. At the start of the process Oftel will normally set a limit on the time it will spend collecting information and give a target date by which it aims to proceed to make a decision based on the best information available.
Chapter 4Consultation, procedures and targets for different types of casesCompetition Bulletin 4.1 Currently, Oftel publishes details of disputes and investigations in Oftel’s quarterly Competition Bulletin, which gives details of new and closed cases during the relevant period. Oftel has already received representations that the Competition Bulletin does not provide an adequate up to date picture of Oftel’s work. When dispute resolution moves to the four month timeframe, a quarterly bulletin will be inadequate. 4.2 Under the new regime, Oftel will publish details of Compliance cases as they are opened and closed. This information will be published only on Oftel’s web site and will replace the current Competition Bulletin. General information contained in the current quarterly bulletin will also be published on the web at regular intervals. As disputes are accepted, Oftel will publish the scope of the dispute and invite stakeholders to express any interest in the dispute, submit evidence and make representations to Oftel. Questions for stakeholders: Is Oftel’s proposal the best way of informing stakeholders about new disputes? Are there better alternatives? Do you have any objections to web based information replacing the current Competition Bulletin that exists in both electronic and paper form? Consultation procedures 4.3 Oftel’s current practice is to consult on draft determinations for a period of 28 days. Clearly, in a dispute resolution timeframe of four months, it is not possible to allow 25% of the entire period for consultation. Nevertheless, where Oftel intends to direct the parties to enter into an agreement or fix or alter the terms and conditions of transactions Oftel will consult the parties involved in the dispute. Oftel will normally allow at least ten working days for this consultation but in special circumstances the time allowed could be shorter. Figure 4: Typical timeline of a dispute resolution with consultation
4.5 Oftel recognises that short consultation periods can cause difficulty for stakeholders, and will give as much advance warning as possible of consultations but as Figure 4 illustrates (bearing in mind that the four month deadline is a maximum and the target is ‘the shortest possible time’) longer periods of consultation will neither be feasible nor desirable under the new regime. 4.6 Where Oftel’s conclusion does not result in a change in the arrangements between the parties Oftel will not hold a consultation on the conclusion of the dispute. As discussed above, Oftel will start the dispute resolution process by publishing the scope of the dispute and inviting interested stakeholders to submit information and evidence. Only where the issue is of interest to a large number of stakeholders will Oftel publish a draft determination for consultation among a wider audience. In all other cases, consultation will be limited to the parties directly involved in the dispute. Oftel will, of course, publish final determinations and its findings in all cases. Questions for stakeholders: Oftel has considered alternative forms of consultation such as open hearings but is not yet convinced that this would significantly reduce the time required for consultation or allow fuller understanding of the issues raised in a dispute. Are there other alternatives that Oftel should consider? Figure 5: Summary of the new procedures
Targets for different types of casework 4.8 Disputes are only one type of investigation that Oftel carries out. In addition to disputes, Oftel also:
4.9 Oftel also investigates complaints about licence breaches under the Telecommunications Act 1984 when it is appropriate to do so (eg breaches of number portability obligations). Under the new regime, these types of investigations will be investigations into breaches of general conditions of entitlement (see The general conditions of entitlement, Oftel, May 2002), which are general conditions unrelated to concerns relating to dominance. 4.10 The four month deadline for disputes will be set when the new Directives are implemented in July 2003 although Oftel intends to work to this new deadline from April 2003. Oftel also intends to improve on its targets for the completion of other types of cases. Draft targets for other types of casework are shown in Table 3. Please note that these targets are only draft targets, and final decisions will not be made until the publication of Oftel’s management plan. Table 3: Oftel's draft targets for completion of different types of cases from April 2003
Cross border disputes 4.11 Article 21 of the Framework Directive places obligations on European NRAs to co-operate with each other in the resolution of disputes which fall within the competencies of NRAs in more than one Member State. Any such dispute may be referred to any relevant NRA. 4.12 Oftel chairs the IRG Implementation Group for the new EU Directives and is currently involved in discussions with other NRAs about dispute resolution under the new EU Directives and about the resolution of cross border disputes. Oftel will reflect the result of these discussions in its statement. 4.13 For disputes about radio spectrum obligations between the UK and providers in other Member States, there are a number of factors to take into account. The UK has bilateral arrangements with some of its neighbours for trying to co-ordinate radio spectrum usage, but these do not always cover every type of use. In particular these may only cover internationally harmonised public services rather than the very different arrangements for private networks in each Member State. There are also some arrangements for reaching multilateral agreement across borders under the provisions of the International Telecommunication Union (ITU) and European Conference of Postal and Telecommunication Administrations (CEPT) as well as some new proposals under the EU Radio Spectrum Decision. 4.14 Under the new Directives, cross-border disputes can be referred to Oftel or RA as appropriate using the procedures set out in this document. Oftel or RA will co-ordinate the resolution of the dispute in co-operation with other European NRAs. After the transfer of functions to OFCOM the responsibility for dispute resolution will no longer be divided.
Chapter 5Details of consultation5.1 An eight-week period of consultation will follow publication of this document. Oftel announced its intention to hold a shorter than normal consultation on this issue at the Oftel forum in August 2002. Having considered the representations made and any further matters that the Director considers relevant he will issue a final statement. The Director does not intend to allow a further period of consultation for comments on comments. Oftel is happy to meet interested parties during the consultation period. 5.2 Comments are invited on all the issues this document raises, and in particular on those highlighted in the text as questions for stakeholders before 3rd January 2003. Oftel expects to publish a statement in February or March 2003. 5.3 Comments (including comments about radio spectrum use which will be passed to RA) should be made in writing and sent, before 3rd January 2003, to: Kalpesh Brahmbhatt tel: 020 7634 8826 5.4 Written comments will be made publicly available in Oftel’s Research and Intelligence Unit, and where possible, published on Oftel’s internet site except where respondents indicate that their response, or parts of it, are confidential. Respondents are therefore asked to separate out any confidential material which must be clearly marked confidential. In the interests of transparency, respondents are requested to avoid confidentiality markings wherever possible. Cabinet Office code of practice on written consultation 5.5 Oftel considers that this document meets the Cabinet Office code of practice on written consultation documents. The code is reproduced below for convenience. If you have any comments or complaints about this consultation process please contact: Oftel Co-ordinator for the Code of Practice Rob Jex tel: 020 7634 5340 1) Timing of consultation should be built into the planning process for a policy (including legislation) or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage. 2) It should be clear who is being consulted, about what questions, in what timescale and for what purpose. 3) A consultation document should be as simple and concise as possible. It should include a summary, in two main pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain. 4) Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals. 5) Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for consultation (see paragraph 5.1). 6) Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken. 7) Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure that all the lessons are disseminated.
Annex ADraft format for submitting a request to Oftel to resolve a disputeAny request for resolution of a dispute should be submitted (clearly indicating details of whom Oftel should contact to discuss the submission) to: Compliance Management
Office fax: If you need any further guidance as to how to submit a dispute to Oftel, please contact […] Your submission will be sent to the parties named in your dispute. All confidential information must be contained in a clearly marked annex for Oftel’s use only. Section A A summary of your dispute, not longer than two A4 pages. Section B 1) A full statement of the scope of the dispute, including:
2) A description of the obligations to which the dispute relates, including a view on the relevant economic market. You should explain why you consider that the relevant obligation is not being met, for example, if you make an allegation that a charge is not cost oriented you must set out your reasoning. 3) The remedies which you are seeking from resolution of the dispute (including an explanation as to why these remedies should be applied in resolving the dispute), for example:
Section C 1) A description of any negotiations which have taken place between the parties. 2) Details of the steps taken to resolve all of the issues which are in dispute. 3) An explanation of why commercial agreement could not be reached. 4) Relevant documentary evidence of commercial negotiations, covering the whole period of negotiation, including correspondence, notes of meetings and telephone calls, and a chronological summary of the events. 5) Details of any options or proposed solutions put forward by any party during negotiations, including what, if anything, was accepted, what was rejected and why. Optional sections You are encouraged to provide the following information where it is available. Section D Any relevant economic analysis.
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