Judgment of the Tribunal in relation to an appeal by British Telecommunications PLC (“BT”) from a determination of the Office of Communications (“Ofcom”) dated 11 November 2015 of two disputes concerning BT’s average porting conveyance charges (“APCCs”) (“the Final Determination”). The disputes were between BT and Gamma Telecom Holdings Limited (“Gamma”), and BT and Vodafone Limited (“Vodafone”).
In the Final Determination, Ofcom considered whether BT had complied with General Condition (“GC”) 18.5(a) which requires that any charges for the provision of number portability made by a Communication Provider (“CP”) must be cost oriented. Ofcom declared that BT had overcharged each of Gamma and Vodafone for the provision of number portability services in that BT had failed to calculate all elements of its APCCs on the basis of Long Run Incremental Cost (“LRIC”); it had instead calculated elements of them on the basis of LRIC+, which includes an amount attributable to common costs (i.e. costs associated with a service, but not unique to that service).
BT challenged the Final Determination under three grounds of appeal. Under Ground 1 of its appeal, BT argued that the services for which it continued to charge LRIC+ fell outside of the scope of GC 18.5(a). Under Ground 2(a) of its appeal, BT argued that Ofcom had no lawful basis to purport to use its regulatory powers to amend the effect of GC 18.5(a). Under Ground 2(b) of its appeal, BT contended that, pursuant to an exception allowing for it to agree with other CPs another basis for its charges, GC 18.5(a) did not apply. Under Ground 3 of its appeal BT contended that, even if it Ofcom had the legal power to set the cost standard at LRIC, Ofcom was wrong to do so because it would be harmful to competition, efficiency and innovation.
Prior to the Final Determination, Ofcom had consulted upon and published guidance which stated that for the purposes of GC 18.5(a) the costs of the provision of number portability should be assessed by reference to LRIC. Gamma argued that BT’s grounds of appeal 2(a) and 3 were time-barred as BT had failed to seek a judicial review of the guidance after it had been published in September 2014 within the three-month time limit prescribed under CPR r 54.5.
For the reasons set out in the judgment, the Tribunal:
- dismissed Gamma’s time-bar argument; and
- dismissed all three of BT’s grounds of appeal.
