Re-determination of disputes relating to BT’s termination rates for 080 and 0845/70 calls (remitted by the CAT)

03 April 2012

Case opened: 29 September 2011
Case Closed: 7 October 2011
Issue: Ofcom has issued a determination (see related item) to give effect to the CAT’s Order dated 12 August and made in respect of case numbers 1151/3/3/10, 1168/3/3/10 and 1169/3/3/10 that NCCNs 956, 985 and 986 do stand and that the MNOs do pay BT (by way of adjustment) the termination rates due under those NCCNs for the periods specified in, and in accordance with the prescribed methodology and procedure set out in the Order.
Relevant instrument: This determination is issued pursuant to section 195(6) of the Communications Act 2003 (“the 2003 Act”), which requires Ofcom to comply with every direction given by the CAT under section 195(4) of the 2003 Act.

Update note: 27 July 2012

Ofcom has issued a determination (see related item) to give effect to the Court of Appeal’s Order dated 25 July 2012 (the “Court of Appeal Order”).  The Court of Appeal Order set aside:

(i) the order given by the Competition Appeal Tribunal (the “CAT”) in respect of case numbers 1151/3/3/10, 1168/3/3/10 and 1169/3/3/10, dated 12 August 2011 (the “CAT Order”), except for paragraphs 1(2), 1(5) and 4 thereof), and

(ii) the determinations made by Ofcom on 7 October 2011 (case: CW/01076/09/11), 28 February 2012 (case: CW/01076/09/11)  and 2 April 2012 (case CW/01076/09/11) (the “Consequential Determinations”).

It also restored the following determinations made by Ofcom:

(i) Ofcom’s determination made by Ofcom on 5 February 2010 (case: CW/01036/09/09) (the “080 Determination”); and

(ii) Ofcom’s determination made by Ofcom on 10 August 2010 (case: CW/01042/01/10) (the “0845/0870 Determination”).

Further, the Court of Appeal Order ordered that the matter should be remitted to Ofcom pursuant to s.195(4) Communications Act 2003 for Ofcom to direct that:

(i) BT must repay to each of O2, Everything Everywhere, Vodafone and H3G within 28 days of the date of the Court of Appeal Order, such monies as have been paid by each of them to BT pursuant to paragraphs 5 and 6 of the CAT Order and/or the Consequential Determinations that would not have been paid pursuant to the 080 and 0845/0870 Determinations, including, for the avoidance of doubt, amounts paid by each of O2, Everything Everywhere, Vodafone and H3G in respect of periods since the CAT Order; and

(ii) BT must pay interest upon the amounts repayable pursuant to the paragraph above, determined in  accordance with paragraphs 12.7 and/or 13.13 of the BT Standard Interconnect Agreement from the date of each such payment until the date of the repayment by BT.

End of update note

Update note: 3 April 2012

Ofcom has issued a further determination to give effect to the CAT’s Order dated 12 August 2011 (“the Order”) made in respect of case numbers 1151/3/3/10, 1168/3/3/10 and 1169/3/3/10. BT and Vodafone have failed to agree the payment due to BT for charges for calls to 080, 0845 and 0870 numbers under NCCNs 956, 985 and 986 in Period 1. On 2 April 2012 we therefore ordered, pursuant to paragraph 6(3) of the Order, the appropriate payment to be made by Vodafone to BT for these calls.

End of update note

Update note: 28 February 2012

BT has reached agreement with each of H3G, Everything Everywhere and O2 regarding the sums to be paid to BT pursuant to paragraph 6(3) of the Order in respect of calls to numbers within the 080, 0845 and 0870 ranges subject to charges under NCCNs 956, 985 and 986. On 27 February 2012 Ofcom made a determination ordering the payment of sums agreed (please see related items for the non-confidential version of Ofcom’s determination).

End of update note

Update note: 24 February 2012

Vodafone and BT have informed Ofcom that they have not agreed the amount of payment to be made in accordance with Ofcom’s determination made on 7 October 2011, which gave effect to the CAT’s Order dated 12 August 2011 (‘the Order’).

Paragraph 6(3) of the Order requires that, where the parties have not agreed on a payment to be made pursuant to the Order, Ofcom shall, as soon as reasonably practicable thereafter, order such payments between the parties as it considers appropriate having regard to the respective notifications of the parties and such submissions as Ofcom (in its discretion) may require.

On 27 January 2012, Ofcom received copies of the respective notifications and began work to determine what payments should be made by Vodafone to BT pursuant to the Order.

End of update note

On 5 February 2010 Ofcom made a determination (“the 080 Determination”) (-1-) resolving disputes between BT and each of T-Mobile, Vodafone, O2 and Orange concerning BT’s tiered, variable termination charges for calls to 080 numbers contained in NCCN 956 (-2-) and effective from 1 July 2009.

On 10 August 2010 Ofcom made a determination (“the 0845/0870 Determination”) (-3-) resolving disputes between BT and each of Vodafone, T-Mobile, H3G, O2, Orange and Everything Everywhere concerning BT’s tiered, variable termination charges for calls to 0845 and 0870 numbers contained in NCCNs 985 and 986, and effective from 1 November 2009.

On 6 April 2010 BT registered an appeal against the 080 Determination with the Competition Appeal Tribunal (“CAT”) (-4-) (see Ofcom update note dated 19 April 2010 (-5-)). On 11 October 2010 BT and Everything Everywhere registered two separate appeals against the 0845/0870 Determination with the CAT (-6-) (see Ofcom update note dated 21 October 2010 (-7-)). The CAT subsequently ordered that all three appeals (“the Appeals”) should be heard together.

On 1 August 2011 the CAT gave its judgment (“the Judgment”) (-8-) in relation to the Appeals against the 080 Determination and 0845/0870 Determination. On 12 August 2011 it gave its consequential ruling (“the Ruling”) (-9-) addressing certain comments made by the parties.

On the same date, the CAT also issued an Order relating to the actions required of Ofcom and the parties consequent upon the Judgment.

Case Leader: Tom Thursby (e-mail: tom.thursby@ofcom.org.uk)
Case Reference: CW/01076/09/11

Footnotes:
  1.- Ofcom case ref: CW/01036/03/09, http://stakeholders.ofcom.org.uk/binaries/consultations/draft_deter_bt_tmobile_vodafone/nonconf.pdf.
  2.-NCCN: Network Charge Change Notice pursuant to paragraph 12 of the Standard Interconnect Agreement.
  3.- Ofcom case ref: CW/01042/01/10, http://stakeholders.ofcom.org.uk/binaries/enforcement/competition-bulletins/closed-cases/all-closed-cases/761146/Final_Determination.pdf.
  4.- Case number 1151/3/3/10.
  5.-http://stakeholders.ofcom.org.uk/enforcement/competition-bulletins/closed-cases/all-closed-cases/cw_01036/
  6.- Case number 1168/3/3/10 and 1169/3/3/10.
  7.- http://stakeholders.ofcom.org.uk/enforcement/competition-bulletins/closed-cases/all-closed-cases/cw_01042/
  8.- [2011] CAT 24.
  9.- [2011] CAT 26.