Dispute between Cloud9 and Vodafone concerning connection and on-going charges for ARP access

25 November 2014

Dispute between: Cloud9 Mobile Communications Limited ("Cloud9") and Vodafone Limited ("Vodafone") concerning connection and on-going charges for access as an Alternative Roaming Provider ("ARP")
Case opened: 01 August 2014
Case closed: 25 November 2014
Issue: Ofcom was asked to resolve a dispute concerning whether it is permissible for Vodafone to require Cloud9 to pay certain connection and on-going charges in order to become an ARP.
Relevant instrument: Ofcom resolved this dispute under Regulation 10(2) of The Mobile Roaming (European Communities) Regulations 2007 (SI 2007/1933, as amended) (the "UK Regulations").

On 25 November 2014, Ofcom published its Final Determination resolving this dispute. A non-confidential version of the Determination is available under related items.

Update note 16 October 2014

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

The period for comments on the Provisional Conclusions will close at 5 pm on 30 October 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 Vodafone's proposal to pass on to Cloud9 one-off costs of connecting Cloud9 as an ARP to Vodafone's network and to require Cloud9 to pay periodically certain on-going charges. Cloud9 contends that it is not permissible under the terms 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 such charges.

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 Vodafone, the scope of the dispute is to determine:
With reference to Article 5 and Article 3 of the EU Roaming Regulation (Regulation (EU) No 531/1202):

  1. whether it is permissible for Vodafone Limited (Vodafone) to pass on to Cloud9 Mobile Communications Limited (Cloud9) charges for one-off connection costs and periodic on-going charges related to Cloud9 establishing itself as an alternative roaming provider (ARP) on Vodafone's network; and
  2. if and to the extent Article 3 applies:

(i) whether such charges are permissible under Article 3; and, if so
(ii) whether such charges are ‘fair and reasonable'.

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 18 August 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 18 August 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/01134/07/14