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Dispute Resolution Rules

1 Scope

1.1 An Adjudicator duly appointed under the Telecommunications Adjudication Scheme ("Scheme") shall resolve disputes in accordance with these Dispute Resolution Rules ("Rules") when:

1.1.1 the Parties to the Dispute are appropriately qualified as specified in Rule 2.1 below; and

1.1.2 the Dispute is one specified in Rule 3.2 and subject to Rule 3.3 below.

1.2 In these Rules:

1.2.1 any reference to "the Act" is a reference to the Communications Act 2003 as it may be amended or re-enacted from time to time.

1.2.2 LLU means Local Loop Unbundling

1.2.3 LLU Operators ("LLUOs") is a reference to Communication Providers who are customers for LLU services;

1.2.4 BT means British Telecommunications plc;

1.2.5 any reference to a "Dispute" is a reference to a Dispute under the Dispute Resolution Rules and which is not an excluded dispute under the Dispute Resolution Rules;

1.2.6 any reference to an "ANF Agreement" is a reference to the Agreement for Access Network Facilities Services which governs the provision of unbundled loops and associated facilities;

1.2.7 any reference to "Parties" is a reference to Operators and BT, who sign the Scheme Agreement; and

1.2.8 any reference to "Scheme Agreement" is a reference to the Telecommunications Adjudication Scheme Agreement made between BT and each Operator individually which sets up the Scheme.

1.3 For the avoidance of doubt, nothing in these Rules:

1.3.1 shall take effect if and to the extent that it conflicts with any provision within sections 185 to 192 of the Act;

1.3.2 shall prevent any Party to a Dispute relying upon or exercising any contractual or other right or remedy it may have, including but not limited to challenging by due legal process the resolution of the Dispute under the Scheme.

2 Parties

2.1 A Dispute may only be resolved under the Scheme if each Party to the Dispute satisfies each of the following Rules 2.2 and 2.3.

2.2 Each Party to the Dispute must be a Communications Provider as defined in section 405(1) of the Act.

2.3 Each Party to the Dispute must have entered into:

2.3.1 a Scheme Agreement with another Party to the Dispute which includes a provision to the effect that these Rules shall apply to the resolution of the Dispute; and

2.3.2 an ANF Agreement.

3 Disputes

3.1 The Adjudicator may accept a Dispute from more than two Parties. The Adjudicator may join different Disputes but only with the agreement of all the relevant Parties.

3.2 The disputes to be resolved under the Scheme are those concerning LLU within Rules 3.2.1 to 3.2.7 below or a particular dispute as described in Rule 3.2.8 below:

3.2.1 Product functionality which refers to the definition, specification (including timing of availability) and functionality of LLU products, and associated facilities and activities necessary for LLU such as co-location and tie-cables. It will include inter-alia issues such as:

3.2.1.1 Scope of an unbundled loop (e.g. issues such as the product definition of shared and fully unbundled loops, interpretation of the Access Network Frequency Plan);

3.2.1.2 Location and type of unbundling (e.g. issues such as sub-loop unbundling);

3.2.1.3 Approach to achieve unbundling (e.g. prequalification, line-testing, jumpering, product compatibility, quality management);

3.2.1.4 Associated facilities required to support unbundling and the specification of these (e.g. co-location, distant co-location, co-mingling and tie cables); and

3.2.1.5 Operational activities associated with in-life service management (e.g. site access requirements, testing approach and how faults are managed).

3.2.2 Process specification which refers to the specification and availability of the processes involved through the life-cycle of relevant LLU products. It will include inter-alia processes such as:

3.2.2.1 Forecasting and demand management;

3.2.2.2 Pre-ordering (for example, pre-qualification, line testing and address matching);

3.2.2.3 Ordering;

3.2.2.4 Provisioning, including but not limited to new provisions, co-ordinated provisioning (for example, LLU with WLR (wholesale line rental)), transfer (for example, from PSTN (Public Switched Telephone Network)) to fully unbundled MPFs (Metallic Path Facilities)), number portability, change of end user customer name and broadband migrations;

3.2.2.5 Fault reporting and repair; and

3.2.2.6 Billing.

3.2.3 Process specification which will also include the setting of reasonable quality levels, Service Level Agreements ("SLAs") and Service Level Guarantees ("SLGs") (and penalties / liquidated damages in these).

3.2.4 Change management which refers to on-going modifications, enhancements and improvements of LLU products and processes as outlined in Rules 3.2.1 to 3.2.3.

3.2.5 Implementation plans which refers to the implementation of new and changed LLU products and processes (as outlined in Rules 3.2.1 to 3.2.4), including the project plans, timescales and reasonable resourcing required to delivery these products and processes.

3.2.6 Monitoring activities which refers to necessary on-going activities to monitor implementation of non binding recommendations and compliance with Rulings and Adjudications of the Adjudicator, including the use of appropriate Key Performance Indicators ("KPIs") where relevant.

3.2.7 For the avoidance of doubt, charge setting and policy development will not be included in the Scope of the Adjudicator, but will remain matters for Ofcom.

3.2.8 a particular dispute designated in a written agreement between the Parties for resolution under the Scheme.

3.3 Notwithstanding the provisions of Rule 3.2 above, a Dispute shall cease to qualify for resolution under the Scheme if at any time the Adjudicator determines that the Dispute:

3.3.1 is an "excluded dispute" within the meaning of section 185(7) of the Act; or

3.3.2 is trivial (in the opinion of the Adjudicator unless all Parties to such dispute advise the Adjudicator otherwise);

3.3.3 having been submitted by Ofcom for an Adjudication under Rule 5.1 below, it should for any other reason be referred back to Ofcom for determination by Ofcom; or

3.3.4 is a dispute where resolution of such dispute would probably result in one or more of the following:

3.3.4.1 conflict with existing Ofcom regulatory policy;

3.3.4.2 establishing new regulatory policy;

3.3.4.3 setting of LLU charges;

3.3.4.4 excessive additional expenditure by Operators and / or BT in relation to the potential benefits;

3.3.4.5 a significant detrimental impact on network security or network integrity; or

3.3.4.6 a significant detrimental operational disruption, dislocation or re-engineering of operational systems or processes.

3.4 The Adjudicator shall promptly give written reasons for any such determination to each Party and to Ofcom.

3.5 Ofcom will not request the Adjudicator to resolve a matter that is not a Dispute.

4 Ruling

4.1 At any time before any Dispute has been referred to Ofcom under section 185 of the Act, any Party to a Dispute may in writing submit that Dispute to the Adjudicator for resolution by way of Ruling.

4.2 The Ruling shall be made in accordance with the principles set out in Rule 6 below and the procedure set out in Rule 7 below.

4.3 Save for Rule 4.4, the Ruling shall be binding unless and until superseded by:

4.3.1 an Adjudication under Rule 5 below; or

4.3.2 a contrary determination or direction by Ofcom; or

4.3.3 an order of a Court of competent jurisdiction

4.4 The Ruling shall not be binding if the Adjudicator has made a manifest error on the face of his finding.

5 Adjudication

5.1 At any time after any Dispute has been referred to Ofcom under section 185 of the Act, Ofcom may in writing submit that dispute to the Adjudicator for resolution by way of an Adjudication.

5.2 A Dispute submitted by Ofcom to the Adjudicator shall revert back to Ofcom for determination:

5.2.1 upon the Adjudicator so determining under Rule 3.3.3 above;

5.2.2 on the prompt written application of any Party if the Adjudicator has failed within 4 months of the submission to make an Adjudication; or

5.2.3 on the prompt written application of any Party dissatisfied with the Adjudication.

5.3 The Adjudication shall be made in accordance with the principles set out in Rule 6 below and the procedure set out in Rule 7 below.

5.4 Save for Rule 4.5, the Adjudication shall be binding unless and until superseded by:

5.4.1 a contrary determination or direction by Ofcom; or

5.4.2 an order of a Court of competent jurisdiction

5.5 The Adjudication shall not be binding if the Adjudicator has made a manifest error on the face of his finding.

6 Principles

6.1 The Adjudicator shall act as expert and not as arbitrator or mediator.

6.2 The Adjudicator shall endeavour to resolve the Dispute as rapidly as is practicable.

6.3 The Adjudicator shall as a matter of general principle have regard to the need to give independent, objective and fair consideration to the submissions and evidence of each Party in accordance with the principles of natural justice.

6.4 In making any Ruling or Adjudication, the Adjudicator shall as far as is reasonably practicable have particular regard to:

6.4.1 The objective for the Adjudicator which is to help ensure the rapid delivery of products and processes which:

6.4.1.1 are, and remain, equivalent in terms of outcome to that which BT delivers to itself, so that the products and processes allow LLUOs to compete on a level playing field with BT in downstream markets based on LLU products;

6.4.1.2 are, and remain, fit for purpose and appropriately industrialised; and

6.4.1.3 support broad take-up of LLU (including shared and fully unbundled loops).

6.4.2 In relation to Rule 6.4.1.1, equivalence in terms of outcome may be achieved by having other Operators use the same or similar types of products, systems and processes as are used by BT, or such other types of products, systems and processes as are appropriate to satisfy the objective; and

6.4.3 Where relevant take account of, inter alia:

6.4.3.1 reasonable resource constraints (including training requirements) of Operators and BT and the ability of Operators and BT to increase resources, although the Adjudicator is able to require reasonable increases in resources;

6.4.3.2 efficiently incurred and reasonable costs, and the need to avoid wasteful expenditure by Operators and BT;

6.4.3.3 likely future demand levels and forecasts;

6.4.3.4 reasonable cost recovery and reasonable profit;

6.4.3.5 the policy context as set by Ofcom/Oftel and regulatory rules (including any relevant Ofcom/Oftel guidelines) in relation to LLU and other relevant products and such policy / regulatory rules as are amended from time to time;

6.4.3.6 existing product / processes;

6.4.3.7 existing customers;

6.4.3.8 network security and network integrity;

6.4.3.9 the activities and recommendations of other related groups such as the NICC and Billing Industry Forum;

6.4.3.10 where relevant, Ofcom's statutory duties; and

6.4.3.11 the impact of any decision on other LLUOs, Operators and BT as well as on the Parties to the Dispute.

6.5 The Adjudicator may also consult other LLUOs, Operators and BT as he sees fit and may as appropriate take account of their views.

7 Procedure

7.1 The Adjudicator may publish and from time to time revise Guidance on the approach to be adopted by the Adjudicator, the required form of submission of a Dispute to the Adjudicator, what is required of Parties to a Dispute, and any other appropriate matter.

7.2 The Adjudicator may adopt such procedures as the Adjudicator considers necessary or appropriate for rapid resolution of a Dispute, including but not limited to, requiring within a short timescale from any Party to the Dispute in relation to:

7.2.1 a formal submission of the Dispute to the Adjudicator;

7.2.2 written arguments, written answers to questions, and verification of information;

7.2.3 disclosure of documents or other information (subject to claim to privilege or confidence although Parties agree that they will not unreasonably withhold information);

7.2.4 attendance to give oral submissions by appropriate executives or staff having relevant knowledge or requisite authority to make decisions binding that Party;

7.2.5 co-operation in any other reasonable respect.

7.3 An Adjudicator may take up and continue resolving a Dispute submitted to the predecessor of the Adjudicator.

7.4 The Adjudicator shall not be inhibited from resolving a Dispute:

7.4.1 by having performed any facilitative role in relation to the subject matter of the particular or of any related or other Dispute;

7.4.2 by having made a determination or Ruling in relation to the subject matter of the particular or of any related or other Dispute.

7.5 Neither a Ruling nor an Adjudication shall be invalidated by the Adjudicator subsequently ceasing to hold office.

7.6 The Adjudicator shall promptly give written reasons for any Ruling or Adjudication to each Party and to Ofcom. However, the Adjudicator shall not include in his reasons any information which has been supplied to him in confidence.

7.7 Parties shall bear their own costs in Disputes.

7.8 In the case where a Party to a Dispute that is being resolved under the Dispute Resolution Rules terminates their Scheme Agreement (at the end of the required notice period) before any Ruling or Adjudication is made in relation to such Dispute, the Adjudicator will immediately discontinue handling such Dispute and shall leave the matter unresolved save in the case where there were more than two Parties to such dispute and a dispute between Parties to the Scheme Agreement still exists in which case the Adjudicator will continue to handle the Dispute in relation to those Parties remaining in the Scheme.

8 Sanctions

8.1 If any Party defaults by refusing or failing to abide by any procedure or timescale adopted by the Adjudicator then the Adjudicator may resolve the dispute on the material available and draw such inferences as the Adjudicator thinks fit in relation to such failure to co-operate.

8.2 Any Party may seek the assistance of the Court to enforce any decision of the Adjudicator including but not limited to a Ruling or an Adjudication.

8.3 For the avoidance of doubt, nothing in these Rules is intended to inhibit:

8.3.1 enforcement of any sanction provided by contract binding the defaulting Party;

8.3.2 the powers of any Court of competent jurisdiction.

9 Immunity

9.1 Neither the Adjudicator nor any member of the Adjudicator's advisory panel or administrative staff (as described in the Adjudicator Appointment Rules) shall be liable to any party to a dispute in damages or otherwise for any act or omission unless the act or omission was in bad faith or outside the functions of the Adjudicator.

10 Law

10.1 These Rules will be governed under the Law of England and Wales and the Parties submit to the exclusive jurisdiction of the English courts.

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