Judgment on the scope of the Tribunal’s powers on disposal of the appeal.
BT appealed against the price control conditions contained in OFCOM’s 2007 Statement on mobile call termination (MCT) rates (the 2007 Statement). Those price control conditions set a target average charge (TAC) for each mobile network operator for each of the years of the price control, covering the period from 2007 to 2011. The price control matters raised in the appeal were referred to the Competition Commission under section 193 of the Communications Act 2003 on 8 March 2008 (see [2008] CAT 5).
During the course of the Competition Commission’s investigation of the referred price control matters, the Tribunal was asked to rule on certain areas of dispute between the parties, including whether BT’s Notice of Appeal encompassed the relief it was now seeking, whether an additional specified price control matter needed to be referred to the CC and what powers the Tribunal would have when it came to dispose of the appeal.
The issues raised by the parties included the following: if the Competition Commission were to conclude that the TACs applicable during the elapsed period of the price control had been set too high, (i) whether BT’s Notice of Appeal put in issue the TACs for all the years covered by the price control or just the final year, (ii) whether the Tribunal had the power to direct OFCOM to retake the decision in relation to the whole period covered by the 2007 Statement (namely, 2007-2011) or only in relation to the unelapsed part of that period and (iii) whether the Tribunal had the power to direct OFCOM to reduce the TACs applicable during the unelapsed period of the price control to counteract the effect of the overpayment during the elapsed period.
The Tribunal unanimously concluded that BT’s Notice of Appeal put in issue the TACs for all the years covered by the price control, not just the final year, and that the Tribunal would have power on disposing of the appeal to direct OFCOM to reset the price control for the whole of the period 2007-2011. The Tribunal further concluded by a majority that it would not, on disposing of the appeal, direct OFCOM to make an adjustment to the future years of a new price control to reflect the fact that the MCT prices charged in accordance with the 2007 Statement have been found to be too high.
