Dispute between TalkTalk Group and BT Openreach about single jumpered MPF

15 October 2013

Dispute between: (i) TalkTalk Telecom Group PLC ("TalkTalk") and (ii) British Telecommunications plc (BT) concerning BT's failure to provide MPF on a single jumpering basis.
Case opened: 17 July 2013
Case closed: 15 November 2013
Issue: Ofcom was asked to resolve this dispute under section 185 of the Communications Act 2003 (the Act) concerning BT's failure to provide MPF on a single jumpering basis.
Relevant instrument: Ofcom resolved this dispute using its powers under Chapter 3 of Part 2 of the Act.

On 15 November 2013, Ofcom issued its final determination resolving this dispute. A non-confidential version of the determination is available under related items.

Update note - 01 October 2013

On 01 October 2013, Ofcom published its provisional conclusions concerning this dispute (please see related item).

The period for comments on the provisional conclusions will close at 5 pm on Tuesday 15 October 2013. Please send responses to:

Catherine Warhurst
Ofcom
Riverside House
2A Southwark Bridge Road
London
SE1 9HA

Or by e-mail to catherine.warhurst@ofcom.org.uk

End of update note

This dispute concerns the refusal by Openreach (a BT Group business) to provide LLU MPF services on a 'single jumpering' basis, as opposed to the existing 'double jumpering' basis.
In May 2012 TalkTalk submitted a Statement of Requirements ("SOR") to Openreach relating to the development of this product. This was rejected by Openreach. TalkTalk asserts that the development of single jumped MPF would deliver significant cost saving that could in turn be passed on to consumers by way of lower prices.

TalkTalk considers that Openreach's failure to provide the product is a breach of Openreach's obligations to provide Network Access on reasonable request and to provide Local Loop Unbundling on fair and reasonable request and on fair and reasonable terms.
Ofcom recognises that on the face of the referral, there appears to be a dispute between the parties that commercial negotiations have failed to resolve. 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.

Ofcom considers that there is a dispute between the parties within the meaning of s185(1A) of the Communications Act 2003. Ofcom considers that the dispute meets the relevant statutory criteria and it is appropriate for Ofcom to handle it according to section 186 of the Act, and accordingly, Ofcom has accepted the dispute for resolution.

Scope of the dispute:

After consideration of the submissions received from TalkTalk and Openreach, the scope of the dispute is:

(i) Whether, in providing metallic path facilities ("MPF") only on the basis of double jumpering in local exchanges and without developing and offering a single jumpering alternative on receipt of a request to do so, BT is compliant with its obligations under SMP Conditions set by Ofcom as a result of its review of the Wholesale Local Access market.
(ii) Whether Ofcom should exercise its powers to make a declaration under section 190(2)(a) of the Communications Act 2003, and/or give a direction under section 190(2)(b) and/or section 190(2)(c) of the Communications Act 2003.

Procedural matters:

In line with Ofcom's Guidance on the resolution of disputes published in June 2011, Ofcom is not consulting on the scope of this dispute. Ofcom's guidelines can be found at: Ofcom's Guidelines for the handling of regulatory disputes

Stakeholders interested in the outcome of this dispute should notify Ofcom by 1 August 2013, 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 1 August 2013.
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: Catherine Warhurst (e-mail: catherine.warhurst@ofcom.org.uk )
Case Reference: CW/01109/06/13