Dispute between Opal Telecom and BT about BTs Average Porting Conveyance Charge (APCC)

26 March 2010

Dispute between: Opal Telecom (Opal) and British Telecommunications plc (BT)
Case opened: 23 July 2009
Case closed: 26 March 2010
Issue: Opal asked Ofcom to resolve a dispute under section 185 of the Communications Act 2003 (the Act) between Opal and BT concerning the APCC payable by Opal to BT for transiting ported calls across BTs fixed network for termination on Opals fixed network.
Relevant instrument: Ofcom resolved this dispute using its powers under Chapter 3 of Part 2 of the Act.

On 26 March 2010, Ofcom issued a final determination under sections 188 and 190 of the Act resolving this dispute. Please see related item.

Update note 17 December 2009

On 17 December 2009, Ofcom issued a second draft determination in relation to this dispute to the parties. Please see the related item. Ofcom will be consulting on its proposals until 5pm on 15 January 2010.

Please send responses to:

Lawrence Knight
Ofcom
Competition Group
Riverside House
2A Southwark Bridge Road
London SE1 9HA
Or by email to lawrence.knight@ofcom.org.uk

End of update note

Update note 23 November 2009

Ofcom received three submissions in response to its draft determination issued on 28 October 2009. In light of these submissions and Ofcoms subsequent analysis, Ofcom considers it appropriate and necessary to extend the timetable for the dispute resolution process in order to issue a revised draft determination and allow interested parties the opportunity to consider and respond to Ofcoms proposals. It is intended that a revised draft determination will be issued within the next five weeks followed by at least a ten working day period of consultation.

End of update note.

Update note 29 October 2009

On 28 October 2009, Ofcom issued a draft determination in relation to this dispute to the parties. Please see the related item. Ofcom will be consulting on its proposals until 5pm on 10 November 2009.

Please send responses to:

Lawrence Knight
Ofcom
Competition Group
Riverside House
2A Southwark Bridge Road
London SE1 9HA
Or by email to lawrence.knight@ofcom.org.uk

End of update note

Update note 07 August 2009

Ofcom has received comments on whether the scope of the dispute would consider the implications of Digital Local Exchange (DLE) handover requiring further arrangements to be in place for the transit of calls from the DLE to Opals fixed network. Separately, Ofcom also received comments suggesting the scope should capture whether the APCC is based on efficiently incurred costs, rather than necessarily considering whether BT is required to provide DLE handover.

Our view remains that the matter in dispute concerns whether or not BT should be required to hand over calls to ported numbers at the relevant DLE. However, we recognise that in seeking to resolve this dispute there may be wider considerations which will be taken into account where relevant.

We note that it is unclear whether the delivery of DLE handover has costs relevant in addition to those reflecting the resulting necessary system development of BTs network and point 2 of the scope has been amended to reflect this.

Finally, we have recognised that the proposed scope had not specified the types of ported call that are subject to the matter in dispute and so we have now clarified this in point 1.

No comments were received on the repayment of sums.

The revised scope of this dispute is therefore to determine:

1. Whether BT should be required to hand over non-BT originated, fixed geographic calls to numbers ported to Opal at the relevant digital local exchange (DLE); and if so,
2. Whether BT should be required to bear any resulting costs that are relevant and/or necessary; and
3. For the purpose of giving effect to the above, whether Ofcom should give a direction requiring the payment of sums by way of adjustment of an underpayment or overpayment.

End of update note

Opal and BT have failed to agree on how calls to ported numbers transited across BTs network are handed over to Opal and how related costs are borne.

Ofcom recognises that on the face of the referral it appears that the dispute meets the relevant statutory criteria and it is appropriate for Ofcom to handle it according to section 186 of the Act. Ofcom has therefore accepted this dispute for resolution.

In resolving disputes Ofcom must act in accordance with the six Community requirements that give effect to Article 8 of the Framework Directive.

In summary, those requirements are:

  • to promote competition in communications markets;
  • to secure that Ofcom contributes to development of the European internal market;
  • to promote the interests of all European Union citizens;
  • to act in a manner which, so far as practicable, is technology-neutral;
  • to encourage, to the extent Ofcom considers it appropriate, the provision of network access and service interoperability; and
  • to encourage such compliance with certain international standards as is necessary for facilitating service interoperability and securing freedom of choice for the customers of communications providers.

Scope of the dispute:

The scope of the dispute is to determine whether:

1. BT should be required to hand over calls to ported numbers at the relevant digital local exchange (DLE); and if so,
2. Whether BT should be required to bear the costs of any resulting necessary system development in BTs network; and
3. For the purpose of giving effect to the above, whether Ofcom should give a direction requiring the payment of sums by way of adjustment of an underpayment or overpayment.

Procedural matters:

Guidance on the resolution of disputes can be found in Ofcom's Guidelines for the handling of competition complaints, and complaints and disputes about breaches of conditions imposed under the EU Directives.

All representations on the scope of the dispute should be submitted to Ofcom by 31 July 2009.

Stakeholders interested in the outcome of this dispute should notify Ofcom by 31 July 2009, describing the relevance of the outcome of this dispute to their business. Stakeholders with relevant information and evidence in respect of this dispute should submit this to Ofcom by 14 August 2009.

Stakeholders who wish Ofcom to join them as parties to the dispute must provide evidence, as set out in Ofcom's Guidelines, that they are in dispute.

Case Leader: Lawrence Knight ( e-mail: lawrence.knight@ofcom.org.uk)
Case Reference: CW/01030/07/09