Judgment on an appeal against a decision of the Director General of Telecommunications dated 3 November 2003 that Vodafone Limited had not infringed the Chapter II prohibition of the Competition Act 1998 by disconnecting on or about 18 March 2003 the telecommunications services that Vodafone was supplying to Floe. The case concerned the provision of services over telecommunications devices known as “GSM gateways”. The decision had found that Vodafone had been objectively justified in disconnecting Floe as Floe was providing services over GSM gateways without a licence to do so under the Wireless Telegraphy Act 1949 (“WTA”).
The Tribunal set aside the Director’s decision and remitted the matter to OFCOM. The Tribunal found that the Director’s reasoning in the decision that Floe had not been authorised by Vodafone to provide “Public GSM Gateway” services under the terms of a licence issued to Vodafone under the WTA was incorrect and/or flawed. During the course of the appeal OFCOM abandoned a large part of the reasoning in the decision and advanced a new case before the Tribunal concerning the true construction of Vodafone’s licence under the WTA. The Tribunal was not able to find that OFCOM’s new argument, which had potentially wide ramifications for mobile network operators generally, was correct. The Tribunal further found that given the uncertainty and complexity of the legal position a serious issue arose as to whether Vodafone was objectively justified, for the purposes of the Chapter II prohibition, in disconnecting Floe.
