Dispute between: Gamma Telecom Holdings Limited (“Gamma”) and British Telecommunications plc (“BT”) concerning BT’s Average Porting Conveyance Charges (“APCCs”).
Case opened: 23 July 2015
Case closed: 11 November 2015
Issue: Ofcom was asked to resolve a dispute under section 185 of the Communications Act 2003 (the “Act”) concerning the level of APCCs charged by BT to Gamma.
Relevant instrument: Ofcom resolved this dispute using its powers under Chapter 3 of Part 2 of the Act.
On 11 November 2015, Ofcom published its Final Determination resolving this dispute. A non-confidential version of the Determination is available under related items.
Ofcom has today also announced that it is opening a wider investigation into BT’s compliance with its cost orientation requirements under GC18.5. Further information is available here.
Update note 30 September 2015
Ofcom has today published its Provisional Conclusions regarding the disputes (please see related item).
As part of its analysis, Ofcom has modelled BT’s porting conveyance costs. In the non-confidential version of this model (please see related item), confidential information has been removed. This causes errors to appear in the calculations of the model. However, the underlying functionality of the model is unchanged, allowing a user to track the series of calculations Ofcom has taken to generate outputs presented in the Provisional Conclusions.
The period for comments on the Provisional Conclusions will close at 5pm on 14 October 2015.
Please send responses to:
2A Southwark Bridge Road
Or by e-mail Kathryn.firstname.lastname@example.org
End of update note
Update note 11 August 2015
Inclusion of further parties to the dispute
We received a submission from Vodafone on 30 July 2015 requesting that they be joined to the dispute between Gamma and BT. We consider that Vodafone and BT are in dispute in relation to BT’s APCCs and have exhausted commercial negotiations on this issue. We therefore consider that a dispute exists between Vodafone and BT and that it falls within the scope of section 185(1A) of the Act and have decided, pursuant to section 186 of the Act, that it is appropriate for Ofcom to handle the dispute. We consider that the principal issues in dispute between Vodafone and BT are essentially the same as the issues we are already considering in the existing dispute between BT and Gamma. Accordingly, we consider it appropriate to amend the scope of the dispute to reflect this and to join Vodafone as a party to the dispute. The revised scope of the dispute is as follows:
To determine whether the APCCs that BT has charged Gamma and Vodafone for the period from 29 September 2014 to the date of the determination were set in accordance with General Condition (GC) 18.5(a).
If BT’s APCCs were not set in accordance with GC18.5(a), to determine what the APCCs should have been for that period (or the relevant part of that period) and what payments (if any) BT should make to Gamma and/or Vodafone as a result.
End of update note
General Condition 18.5(a) (GC18.5(a)) requires that charges for portability be cost orientated and based on the incremental costs of providing portability. On 29 September 2014 Ofcom set out guidance as to how communication providers (“CPs”) should set charges to meet the requirements of GC18(-1-).
The dispute concerns allegations from Gamma that BT’s APCCs have not been set in accordance with the requirements of GC18.5(a) and that it is being overcharged as a result. APCCs are the charges set by fixed line CPs to cover their costs of conveying ported calls to a consumer’s new CP. BT disagrees with the position set out by Gamma, and contends that its APCCs are fully compliant with GC18.5(a).
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 accordance with the six Community requirements that give effect to Article 8 of the Framework Directive.
In summary, those requirements are:
Ofcom considers that there is a dispute between the parties within the meaning of section 185(1A) of the Act. Ofcom considers that the dispute meets the relevant statutory criteria and it is appropriate for Ofcom to handle it according to section 186 of the Act. Therefore Ofcom has accepted the dispute for resolution.
Scope of the dispute:
After consideration of the submissions received from Gamma and BT, the scope of the dispute is:
To determine whether the APCCs that BT has charged Gamma for the period from 29 September 2014 to the date of the determination were set in accordance with General Condition (GC) 18.5(a).
If BT’s APCCs were not set in accordance with GC18.5(a), to determine what the APCCs should have been for that period (or the relevant part of that period) and what payments (if any) BT should make to Gamma as a result.
In line with Ofcom’s Guidance 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 30 July 2015, 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 30 July 2015.
Stakeholders who wish Ofcom to join them as parties to the dispute must provide evidence, as set out in Ofcom's Guidelines, that they are in dispute.
Case Leader: Kathryn Searle (e-mail: Kathryn.email@example.com)
Case Reference: CW/01161/07/15