Dispute between The Number UK Ltd and BT about charges for directory enquiry information (OSIS)

27 January 2009

Dispute between : The Number UK Limited ("The Number") and British Telecommunications Plc ("BT")
Case opened: 5 December 2005
Case closed: 7 March 2008
Issue: Whether BT's charges for directory information are in accordance with its obligations under General Condition 19 (“GC19”) and Universal Service Condition 7 (“ USC 7”). As a result of the failure to resolve the matter through commercial negotiation, this matter was referred to Ofcom for resolution.
Relevant instrument: Ofcom resolved this dispute, as referred under and in accordance with section 185(2) of the Communications Act 2003 (the “Act”), using powers under Chapter 3 of Part 2 of the Act

Update note – 8 November 2011

On 27 June 2011, the Court of Appeal allowed BT’s appeal and set aside the order of the Competition Appeal Tribunal, in effect confirming Ofcom’s determination in relation to the disputes between The Number and BT and between Conduit and BT, in particular that Universal Service Condition 7 (USC 7) is unlawful. This disposal of the case follows the judgment of the Court of Justice of the European Union dated 17 February 2011 on referred questions relating to the lawfulness of USC 7.

End of update note

Update note – 27 January 2009

On 24 November 2008, the Competition Appeal Tribunal (“CAT”) delivered its judgment in relation to the appeal lodged by The Number and Conduit against Ofcom’s determination of 10 March 2008, ordering that Ofcom re-determines the disputes in light of the CAT’s findings that Universal Service Condition 7 (“USC7”) is lawful. BT has since lodged with the CAT an application for permission to appeal the CAT’s judgment (“BT’s Application”).

Ofcom will await a decision on BT’s Application before taking any steps to re-determine the disputes.

All queries regarding the above should be directed to Lawrence Knight who can be contacted on 020 7981 3411 (e-mail: lawrence.knight@ofcom.org.uk)

End of update note

Update note – 20 May 2008

On 7 May 2008, Conduit and The Number UK Ltd jointly filed an appeal with the Competition Appeal Tribunal (CAT) against Ofcom’s determination to resolve this dispute and the one submitted separately by The Number (CW/00864/09/05). Details of the appeals can be found on the CAT’s website at http://www.catribunal.org.uk/

End of update note

Update note – 10 March 2008

On 7 March 2008, Ofcom issued a determination under sections 188 and 190 of the Act resolving this dispute. Please see the related items for details.

Ofcom’s decision to consider BT’s obligations under GC19 as part of this dispute is currently the subject of a pending appeal to the Competition Appeal Tribunal. This appeal was lodged by BT on 8 May 2006.

Readers may also be interested in the consultation document that Ofcom has published today on telephone directory information obligations and regulations (see the related items for details).

End of update note

Update note – 13 April 2007

Martin Hill has been assigned as the case leader for this dispute. All submissions or queries regarding the dispute should be directed to Martin who can be contacted on 020 7783 4334 (e-mail: martin.hill@ofcom.org.uk).

End of update note

Update note – 21 March 2007

Ofcom has agreed to a request to further extend the consultation period on the further draft determinations in relation to this dispute and the related dispute between Conduit and BT until 5pm on Friday 13 April 2007.

End of update note

Update note – 19 February 2007

Ofcom has agreed to a request to extend the consultation period on the further draft determinations in relation to this dispute and the related dispute between Conduit and BT until 5pm on Tuesday 27 March 2007.

End of update note

Update note – 15 February 2007

Ofcom has issued further draft determinations in relation to this dispute and the related dispute between Conduit and BT. Please see the related item.

Ofcom will be consulting on its proposals until 5pm on 7 March 2007. Please send responses to:

James Tickel
Competition Group
Ofcom
Riverside House
2a Southwark Bridge Road
London
SE1 9HA

or by email to james.tickel@ofcom.org.uk

End of update note

Update note – 11 September 2006

Ofcom has agreed to a request to extend the consultation period on the draft determinations in relation to this dispute and the related dispute between Conduit and BT until 5pm on Friday 29 September.

End of update note

Update note – 21 August 2006

Ofcom issued draft determinations in relation to this dispute and the related dispute between Conduit and BT on 17 August 2006. Please see the related item.

Ofcom will be consulting on its proposals until 5pm on 21 September 2006. Please send responses to:

James Tickel
Competition Group
Ofcom
Riverside House
2a Southwark Bridge Road
London
SE1 9HA

or by email to James.Tickel@ofcom.org.uk

End of update note

Update note – 14 March 2005

The Number has submitted a supplementary submission to its original dispute referral including reference to whether BT has been complying with its obligations under General Condition 19 (“GC19”). Among other things, GC19 requires that where a communications provider has been allocated telephone numbers, it shall meet all reasonable requests from any person to make available the directory information of its subscribers – or other end-users assigned numbers originally allocated to that communications provider – on terms which are fair, cost-oriented and non-discriminatory.

The Number's supplementary submission sets out that the charges it pays under clause 7.1 of the relevant OSIS licence are directly related to BT's obligations under GC19 in addition to those under USC 7, given that it alleges that BT has chosen to discharge its obligations under GC19 (relating to its own-subscriber data) exclusively through the OSIS database. Furthermore, The Number argues that the charges paid for access to information from OSIS are not consistent with the cost orientation obligations under GC19, given the KPN judgment. In The Number's view, Ofcom should consider, as part of this dispute, whether BT's ongoing and historic charges for information are and have been in accordance with its GC19 obligations as well as its obligations under USC 7. The Number has therefore requested that the scope of the dispute should consequently be amended.

BT has provided comments on The Number's request and Ofcom has considered The Number's supplementary submission and BT's comments carefully. In its original dispute reference, The Number provided evidence of the history of commercial negotiations on the terms on which The Number obtains subscriber information from BT. Ofcom accepts that, in considering the rights and obligations relevant to the provision of this information, it is appropriate to consider both the rights and obligations relating to USC 7 and those relating to GC19. BT has signalled to Ofcom and the industry that it has been discharging its GC19 obligations through its provision of subscriber information via OSIS and BT has not made its own subscriber information available separately from OSIS.

In these circumstances, Ofcom's view is therefore that it is appropriate to extend the scope of the dispute to incorporate reference to BT's obligations under GC19 and consider whether or not BT's charges for such information are and have been consistent with these obligations.

Given this, it is proposed that the scope of the issues in dispute should be amended to read as follows:

  • Whether BT's charges to The Number for supplying directory information (“BT's charges”) are consistent with BT's obligations under USC 7 and/or GC19.
  • Subject to Ofcom's determination in respect of the issues in (1) above:
  • What BT's charges should be moving forward; and
  • What BT's charges should have been for the period between 25 th July 2003 and the date of Ofcom's final determination in relation to this dispute, and what (if any) adjustments should be made to payments made by The Number to BT in respect of the directory information supplied during this period.

All representations on this amended scope of the dispute should be submitted to Ofcom by 20 March 2006. Stakeholders interested in the outcome of this dispute should notify Ofcom by 20 March 2006 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 Ofcom by 3 April 2006.

Ofcom is of the view that exceptional circumstances have arisen since the acceptance of the dispute for resolution and that the requirement to resolve this dispute in four months, in accordance with section 188(5) of the Act, will not therefore apply in this case. Ofcom is intending to resolve the broader dispute covering all the issues set out in the amended scope within four months from the date the parties were informed of the revised scope, i.e. 8 th July 2006.

End of update note

Text published when the case was opened

The Number supplies 118 directory enquiry services in the UK providing residential and business addresses and telephone numbers to callers. It also provides an onward call connect service. In providing its services to end-users, The Number uses the directory information contained in BT's Operator Service Information System ( OSIS ) database under a licence which commenced in 2002. The Number states that it has been negotiating a new OSIS licence since the third quarter of 2003, although discussions only focussed on the level of charges in April 2005.

The Number alleges that BT has not complied with its obligations under Universal Service Condition 7.4. This condition states that "BT shall supply [the contents of a specified directory information database] on terms which are fair, objective, cost oriented and not unduly discriminatory…"

The Number is particularly concerned that BT's charges for accessing data in OSIS are not consistent with statements made by the European Court of Justice on "cost orientation" in its judgement on the terms on which KPN makes directory information available in the Netherlands . The Number states that attempts to obtain cost information from BT have been unsuccessful and that therefore it is unable to verify the extent to which BT's charges are compatable with the obligations set out in USC 7.4.

Ofcom recognises that on the facts of the matter referred to its attention, there appears to be a genuine dispute between The Number and BT that commercial negotiation has failed to resolve. It would not appear that alternative means exist to resolve the dispute in a prompt and satisfactory manner. As both The Number and BT are Communications Providers, Ofcom will therefore seek to resolve the dispute as set out in Chapter 3, Part 2 of the Communications Act 2003.

Scope of the dispute

The scope of the dispute is to determine whether the level of BT's charges to The Number for accessing the contents of its central OSIS database is consistent with BT's obligations under Universal Service Condition 7.4.

Procedural Matters

Guidance on the resolution of the dispute can be found in Ofcom's Guidelines for the handling of competition complaints, and complaints and disputes about breaches of conditions imposed under the EU Directives.

All representations on the scope of the dispute should be submitted to Ofcom by 23 December 2005. Stakeholders interested in the outcome of this dispute should notify Ofcom by 23 December 2005 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 Ofcom by 6 January 2006.

Case Leader: Lucas Ford ( e-mail: lucas.ford@ofcom.org.uk
Case Reference : CW/00864/09/05

Related Items

Resolution of price disputes concerning supply of certain directory information by British Telecommunications plc to The Number (UK) Ltd and Conduit Enterprises Ltd
Final Determinations and Explanatory Statement published 10 March 2008

Telephone directory information obligations and regulations
Consultation published 10|03|08

Resolution of price disputes concerning supply of certain directory information by British Telecommunications plc to The Number (UK) Ltd and Conduit Enterprises Ltd
Revised Draft Determinations and Explanatory Statement 15 February 2007

Resolution of price disputes concerning supply of certain directory information by British Telecommunications plc to The Number (UK) Ltd and Conduit Enterprises Ltd
Draft Determinations and Explanatory Statement published 21 August 2006