Dispute between: Everything Everywhere Limited (EE) and BT plc (BT)
Case opened: 1 October 2010
Case closed: 27 January 2011
Issue: EE asked Ofcom to resolve a dispute under section 185 of the Communications Act 2003 (the Act) between EE and BT concerning the termination rate payable by EE to BT for calls to 03 numbers that originate on EE’s mobile network and terminate on BT’s fixed network.
Relevant instrument: Ofcom resolved this dispute using its powers under Chapter 3 of Part 2 of the Act.
On 27 January 2011, Ofcom issued a final determination under sections 188 and 190 of the Act resolving this dispute. A non-confidential version of the determination is available under related items.
Update note 9 December 2010
On 8 December 2010, Ofcom issued a draft determination to the parties in relation to this dispute (please see related item). Ofcom will be consulting on its proposals until 5 pm on 23 December 2010.
Please submit responses by this date to:
2A Southwark Bridge Road
London SE1 9HA
Or by e-mail to firstname.lastname@example.org
End of update note
This dispute concerns the wholesale charges for calls to 03 numbers charged by BT to EE. BT issued Network Charge Change Notice (NCCN) 966 to originating communications providers (OCPs) on 3 August 2009, notifying them of its new wholesale termination charges for calls to 03 numbers, effective from 1 September 2009. The revised rate was aligned with the wholesale termination charges for calls to 0870 numbers as determined by Ofcom in its Determination to resolve 0870 call termination rate disputes between BT and various operators (the 0870 Determination) – see related item.
EE disagrees that the wholesale termination rate that should apply to 03 numbers is the 0870 wholesale termination rate. EE consider that, because 03 numbers are required to be treated as equivalent to 01 and 02 numbers, the appropriate wholesale termination rate is one that is equivalent to termination rates for calls to geographic numbers.
EE has proposed alternative rates which BT has rejected. EE and BT have not been able to reach agreement about what the wholesale termination rates should be and EE has referred this dispute to Ofcom for resolution.
On the face of the referral it appears that there is a dispute between EE and BT that commercial negotiations have failed to resolve and that meets the relevant statutory criteria. It is appropriate for Ofcom to handle the dispute according to section 186 of the Act and Ofcom has therefore accepted it 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:
Scope of the dispute:
The scope of the dispute is to determine whether it is fair and reasonable for BT to apply the wholesale termination charges for calls to 03 numbers originating on the EE mobile network and terminated on the BT fixed network that were notified by BT to EE in NCCN 966.
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 5 pm on 11 October 2010.
Stakeholders interested in the outcome of this dispute should notify Ofcom by 5 pm on 11 October 2010, 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 5 pm on 29 October 2010.
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: Paul Dean (e-mail: email@example.com)
Case Reference: CW/01058/09/10