Dispute between Cloud9 and Telefónica concerning additional charges for delivery of roaming calls

30 September 2014

Dispute between: Cloud9 Mobile Communications Limited and Cloud9 Communications Limited (together, “Cloud9”) and Telefónica UK Limited (“Telefónica”) concerning additional charges for the cost of onward call delivery for roaming calls
Case opened: 02 June 2014.
Case closed: 30 September 2014
Issue: Ofcom was asked to resolve a dispute concerning whether it is permissible for Telefónica to charge Cloud9 an additional charge for onward call delivery in addition to the applicable regulated wholesale roaming charges for regulated roaming calls on public mobile communications networks.
Relevant instrument: Ofcom resolved this dispute under Regulation 10(2) The Mobile Roaming (European Communities) Regulations 2007 (SI 2007/1933, as amended) (the “UK Regulations”).

On 30 September 2014, Ofcom published its final determination resolving this dispute. A non-confidential version of the determination is available under related items.

Update note – 07 August 2014

Ofcom has today published its provisional conclusions regarding this dispute (please see related item).

The period for comments on the consultation will close at 5 pm on 21 August 2014.

Please send responses to:

Melanie Everitt
Ofcom
Riverside House
2A Southwark Bridge Road
London
SE1 9HA

Or by e-mail melanie.everitt@ofcom.org.uk

End of update note

This dispute concerns allegations by Cloud9 concerning Telefónica’s proposed charges in relation to onward call delivery for an alternative roaming providers (“ARP”). Cloud9 contends that it is not permissible under Article 3 of Regulation (EU) No 531/2012 on roaming on public mobile communications networks (the “EU Roaming Regulation”) to require Cloud 9, as an ARP, to pay sums in addition to the regulated wholesale roaming charges laid down in Articles 7, 9 and 12 of the EU Roaming Regulation, in order to cover the cost of onward call delivery.

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 a manner which is consistent with Ofcom’s general duties under section 3 of the Communications Act 2003 (the “Act”).

Ofcom considers that there is a dispute between the parties relating to the obligations laid down in the EU Roaming Regulation. Ofcom considers that the dispute meets the relevant statutory criteria and it is appropriate for Ofcom to handle it according to Regulation 8 of the UK Regulations, and accordingly, Ofcom has accepted the dispute for resolution.

Scope of the dispute:

After consideration of the submissions received from Cloud9 and Telefónica, the scope of the dispute is to determine:

Whether it is permissible under Article 3 of the Regulation (EU) No 531/2012 on roaming on public mobile communications networks (the “EU Roaming Regulation”) for Telefónica UK Limited to charge Cloud9 an additional charge to cover the cost of onward call delivery in addition to the regulated wholesale roaming charges laid down in Articles 7, 9 and 12 of the EU Roaming Regulation.

Procedural matters:

In line with Ofcom’s Guidelines 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 16 June 2014, 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 16 June 2014.

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

Case Leader: Melanie Everitt (e-mail: melanie.everitt@ofcom.org.uk)
Case Reference: CW/011127/05/14