Judgment of the Tribunal dismissing TalkTalk’s appeal against a determination made by OFCOM contained in a document dated 20 July 2011 and entitled “WBA Charge Control – Charge Control framework for WBA Market 1 Services Statement” (“the WBA Charge Control Decision”).
The main issues considered in the judgment were TalkTalk’s contentions that OFCOM had erred procedurally in failing to take proper steps to satisfy itself that there had been a material change within the meaning of section 86(1)(b) of the Communications Act 2003 (Ground A), and that OFCOM’s decision that there had been no material change within the meaning of section 86(1)(b) was, in substance, wrong (Ground B).
The Tribunal held that OFCOM reached the correct decision when it concluded, in the WBA Charge Control Decision, that there had been no material change within the meaning of section 86(1)(b) of the 2003 Act between the date of the earlier WBA Market Power Determination and the WBA Charge Control Decision. The Tribunal therefore rejected TalkTalk’s Ground B.
The Tribunal also held that where, as in this case, there is a full rehearing by the Tribunal of an issue initially determined by OFCOM and the appellant’s case has received “overall, full and fair consideration” that will, in general, dispose of a challenge based upon deficiencies or alleged deficiencies in OFCOM’s procedure. In the Tribunal’s view this was the short answer to TalkTalk’s Ground A.
