Judgment of the Tribunal on CityFibre’s appeal under section 192 of the Communications Act 2003 against a decision made by Ofcom in relation to a commercial offer from Openreach (Equinox). Under the offer, internet service providers receive discounts from Openreach if they meet certain targets for the percentage of new orders from Openreach which are Fibre to the Premises (FTTP) as opposed to slower, legacy products. Ofcom concluded that the targets did not create a potential barrier to purchasing FTTP products from alternative networks, such as CityFibre, and that no intervention was necessary. CityFibre contended that a key conclusion relied upon by Ofcom – regarding the overlap between Openreach and CityFibre’s networks - had been inadequately investigated, consulted on and/or evidenced, and that Ofcom had misdirected itself in law by failing to apply its own analytical framework.
For the reasons set out in the Judgment, the Tribunal unanimously rejected both grounds of CityFibre’s appeal. The Tribunal accepted that a court should be cautious about interfering with a consultation process carried out by an expert regulator. While the consultation process could perhaps have been improved on, it was not so flawed as to be unlawful, and the Tribunal found that no prejudice was suffered by CityFibre in any event. The Tribunal did not consider that Ofcom had misdirected itself in applying the tests set out in various policy statements: Ofcom carried out this exercise reasonably, within the margin of discretion accorded to it as a regulator. The Tribunal also found that CityFibre had failed to identify failings in the investigation that established a breach of Ofcom’s duty to enquire and that there was a sufficient evidential basis for Ofcom to reach the conclusions it did.
