Dispute between BT and Conduit about charges for directory information (OSIS)

26 May 2008

Dispute between : Conduit Enterprises Ltd ("Conduit") and British Telecommunications Plc ("BT")
Case opened: 13 January 2006
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 (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 The Number 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 The Number 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 The Number 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 The Number 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 The Number 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

Conduit 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, Conduit currently uses the directory information contained in BT's Operator Service Information System (“OSIS”) database under a licence which commenced in 2001. Conduit states that it has been discussing the terms on which BT makes directory information available for some time, but that the parties have been unable to reach agreement.

Conduit's original dispute reference submitted in December 2005 related to BT's failure to comply with its obligations under USC 7 to make available the contents of a comprehensive directory database on terms which were fair, objective, cost-oriented and not unduly discriminatory. Ofcom accepted the dispute on these terms in January 2006, but in subsequent correspondence Conduit has also submitted that GC19 – as well as USC 7 – is relevant to the issues under dispute.

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.

Conduit argues that BT is meeting its GC19 obligations by providing data from OSIS and that the charges Conduit pays for OSIS data are not consistent with the cost orientation obligations under GC19, given the judgment by the European Court of Justice on "cost orientation" in concerning the terms on which KPN makes directory information available in the Netherlands. BT has provided comments on Conduit's submission to broaden the scope of the issues in dispute to cover GC19.

Ofcom has considered the submissions made by Conduit and BT on extending the scope carefully. In its original dispute reference, Conduit provided evidence of the history of commercial negotiations on the terms on which it obtains subscriber information from BT. This included explicit requests for details of whether BT Retail would provide access its own subscriber data.

Ofcom accepts that the parties are in dispute over the terms on which BT provides directory information to Conduit. Ofcom also 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.

Ofcom's view is therefore that it is appropriate to set 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.

Scope of the dispute

The scope of the issues in dispute is as follows:

  • Whether BT's charges to Conduit 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 Conduit to BT in respect of the directory information supplied during this period.

Ofcom recognises that on the facts of the matter referred to its attention, there appears to be a genuine dispute between Conduit and BT on these issues 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 Conduit and BT are Communications Providers, Ofcom will therefore seek to resolve the dispute as set out in Chapter 3, Part 2 of the Act.

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 (see related item).

All representations on the 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.

Exceptional circumstances

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.

Case Leader : Lucas Ford ( e-mail:lucas.ford@ofcom.org.uk
Case Reference : CW/00883/12/05