Judgment of the Tribunal in relation to three appeals under section 192 of the Communication Act 2003 (“the 2003 Act”), two of which were brought by British Telecommunications plc (“BT”) and one by Everything Everywhere Limited (“EE”).
The appeals arose out of two decisions of the Office of Communications (“OFCOM”) in which OFCOM resolved disputes concerning the circumstances in which BT was entitled to vary the termination charges that it demanded from other communications providers for terminating certain calls to non-geographic numbers on its network (“the Determinations”). In all cases, a number of mobile network operators objected to the termination charges that BT introduced. In each of the Determinations, OFCOM articulated criteria according to which the “fairness and reasonableness” of BT’s new tariffs were to be judged and found that BT’s new tariffs could not be shown to have satisfied the criteria. OFCOM therefore concluded that BT was not entitled to introduce the new tariffs that it was seeking to impose.
BT contended that OFCOM had misapplied the criteria according to which OFCOM had determined whether its charges were fair and reasonable. In contrast, EE, while it did not challenge the outcome of the Determinations, contended that OFCOM’s criteria had disregarded a basic principle (namely, that BT’s prices should have been orientated to its costs or have been “cost reflective”), and so were unlawful.
The Tribunal unanimously held that notices by which BT sought to vary the termination charges that it demanded from other communications providers (“the NCCNs”) were fair and reasonable, and that BT had the right to introduce them. The Tribunal therefore allowed BT’s appeal and dismissed EE’s appeal against the Determinations.
The Tribunal directed that OFCOM allow the NCCNs to stand, pursuant to section 195(3) of the 2003 Act, and that it require that the MNOs pay to BT in accordance with section 190(2)(d) of the 2003 Act such amounts as were due under the NCCNs to be calculated in accordance with the terms of the Judgment.
