Dispute between Energis and BT about short haul data services (SHDS) and dense wave division multiplexing (DWDM)

16 July 2004

Complainant: Energis Communications Ltd
Complaint against: BT
Case opened: 23 July 2003
Case closed: 3 September 2004
Relevant instrument: Ofcom resolved this dispute under Chapter 3 of Part 2 of the Communications Act 2003

On 3 September 2004 Ofcom published a Determination under Sections 188 and 190 of the Communications Act 2003 resolving this dispute.

Please see related items.

Case leader: Martin Hill (e-mail: martin.hill@ofcom.org.uk)
Case reference: CW/00656/07/03

Text published when the case was opened

Complainant: Energis Communications Ltd
Complaint against: BT
Case opened: 23 July 2003
Relevant instrument: Regulation 6(6) of the Telecommunications (Interconnection) Regulations 1997 and the Communications Act 2003

Update - 19 July 2004

Ofcom published its proposals to resolve this dispute on 19 July 2004. Please see related item.

Ofcom will be consulting on its proposals until 5pm on 02 August 2004. Please send responses to:

Martin Hill
Competition and Markets
Ofcom
Riverside House
2a Southwark Bridge Road
London
SE1 9HA

or by email to Martin.Hill@ofcom.org.uk

End of update note

Update - 18 November 2003

This dispute involves a request for a range of major new products. As set out in Oftel's standard dispute resolution procedures, "Dispute resolution under the new EU Directives" (http://www.ofcom.org.uk/static/archive/oftel/publications/eu_directives/2003/eud0203.htm) Oftel does not consider it feasible or practical to deal with disputes about the provision of major new products in advance of a market review. The relevant market definitions and access obligations imposed under the Communications Act 2003 are currently being considered in Oftel's review of the leased lines, symmetric broadband origination and wholesale trunk segments markets (the leased lines market review). In the interests of efficient resource allocation and in line with Oftel's standard policy, this dispute will not be handled in accordance with Oftel's standard dispute resolution procedures and will be dealt with following the conclusion of the leased lines review.

The review will not conclude within four months from the submission of this dispute. Oftel considers that the circumstances surrounding this dispute are exceptional circumstances and that, in accordance with Section 188(5) of the Communications Act 2003, Oftel will not be bound by the requirement to resolve this dispute in four months. Oftel is aiming to complete its investigation into this matter by the end of March 2004.

Update: Oftel clarified the scope of this investigation on 4 August 2003, as follows:

Following submissions from Energis, BT and Cable & Wireless, the Director has amended the scope of the dispute so that product (xi) reads 'Wavestream Connect', rather than 'Wavestream Central'. The scope of the dispute is therefore as follows:

Scope of the dispute:
To determine whether BT should be required to offer and provide interconnection variants of the following retail SHDS products:

  1. LES 2
  2. LES 3
  3. FIS
  4. LES 10
  5. LES 100
  6. Star Networks
  7. LES 155
  8. LES 622
  9. LES 1000
  10. CES 1000
  11. Wavestream Connect
  12. Wavestream Metro and Connect National

If he concludes that BT should be obliged to make these products available, the Director will also set out the general principles covering price and terms of supply and when the products should be made available. The Director does not propose to set the specific prices for the products.

Stakeholders with relevant information and evidence in respect of this dispute should submit this to Oftel by 15 August 2003.

Case leader:
Martin Hill (e-mail: martin.hill@oftel.gov.uk)
Case reference: CW/00656/07/03

Text published when case opened

Dispute between Energis and BT about short haul data services (SHDS) and dense wave division multiplexing (DWDM)

Complainant: Energis Communications Ltd
Complaint against: BT
Case opened: 23 July 2003
Relevant instrument: Regulation 6(6) of the Telecommunications (Interconnection) Regulations 1997 and the Communications Act 2003

Issue:
Energis has requested that BT make available interconnection variants of BT's retail SHDS products. Energis has requested two separate products types, one providing handover at a point of connection and the other providing handover at a partial private circuit (PPC) point of connection multiplexor. Energis has further requested that timescales for provision, the relevant charges and charging principles to be used and other terms and conditions for the products be set.

Background:
SHDS are used to provide Ethernet links between local area networks (LANs) belonging to a single customer or to link a LAN belonging to one customer to a site belonging to another customer. They are, therefore, a form of LAN extension service (LES) PPC.

DWDM is a technology that allows a single fibre to be divided into separate wavelengths of light, where each wavelength of light is capable of being used to provide a separate transmission link. This allows each fibre in the network to be used to provide services to a number of different customers.

Energis argues that, when developing retail products, PPCs are not adequate on all occasions to allow operators to compete with BT's retail products. Energis argues that operators are currently only able to compete with BT by purchasing retail LES products from BT as inputs into their own retail products. Energis therefore argues that BT should be required to provide interconnection variants of the retail SHDS products.

BT rejected Energis's request for the interconnection products on the grounds that it already offered a wide range of PPC products, in addition to its retail SHDS products, and that the services requested by Energis amounted to little more than fibre provision. BT claimed that the fibre provide market was competitive and that BT may not even have fibre network in the areas that Energis was seeking interconnection.

BT further argued that interconnection to a BT PPC multiplexor amounted to interconnection with itself and that this was not something that BT was obliged to offer. BT therefore rejected Energis's request for interconnection variants of BT's retail SHDS products. BT also argues that no dispute exists between itself and Energis as there had been nine months between the ending of negotiations between the two parties and Energis submitting the dispute.

Scope of the dispute:
To determine whether BT should be required to offer and provide interconnection variants of the following retail SHDS products:

  1. LES 2
  2. LES 3
  3. FIS
  4. LES 10
  5. LES 100
  6. Star Networks
  7. LES 155
  8. LES 622
  9. LES 1000
  10. CES 1000
  11. Wavestream Central
  12. Wavestream Metro and Connect National

If he concludes that BT should be obliged to make these products available, the Director will also set out the general principles covering price and terms of supply and when the products should be made available. The Director does not propose to set the specific prices for the products.

Procedural matters:
The resolution of the dispute is subject to the new procedures set out in the joint Oftel/Radio Communications statement " Dispute Resolution under the new EU Directives " (28 February 2003).

All representations on the scope of the dispute should be submitted to Oftel by 30 July 2003.

Stakeholders interested in the outcome of this dispute should notify Oftel by 30 July 2003, describing the relevance of the outcome of the dispute to their business.

Stakeholders with relevant information and evidence in respect of this dispute should submit this to Oftel by 15 August 2003.

Case leader: Martin Hill (e-mail: martin.hill@oftel.gov.uk)
Case reference: CW/00656/07/03