Dispute between Everything Everywhere and BT regarding termination charges for 080 numbers

Update note 3 June 2013

On 24 May 2013 BT filed a Protective Notice of Appeal with the Competition Appeal Tribunal (CAT) against Ofcom’s determinations to resolve these disputes and the related dispute about termination charges for 0844, 0843, 0871, 0872, 0873 and 09 number ranges (CW/01088/03/12). Details of BT’s appeal can be found on the CAT's website at http://www.catribunal.org.uk/.

End of update note

On 4 April 2013, Ofcom issued its final determinations of these disputes and of the related dispute about termination charges for 0844, 0843, 0871, 0872, 0873 and 09 number ranges (CW/01088/03/12) to the parties in dispute.

We have published a non-confidential version of our final determinations (see related items).

Update note: 19 December 2012

We have received requests to extend the period for comment on the provisional conclusions.  Following these requests and the fact that the current period for responses includes the Christmas holiday period, we have decided to extend the period for comments on the provisional conclusions to 5pm on 4 January 2013.

End of update note

Update note: 4 December 2012

On 4 December 2012, Ofcom issued its joint provisional conclusions concerning this dispute and CW/01088/03/12 to BT, EE, H3G, O2 and Vodafone (please see related item).

The period for comments on the provisional conclusions will close at 5 pm on 28 December 2012. Please send responses to:

Melanie Everitt
Ofcom
Riverside House
2A Southwark Bridge Road
London
SE1 9HA

Or by e-mail to melanie.everitt@ofcom.org.uk

End of update note

Update note: 6 January 2012

Having considered all relevant circumstances that exist, we consider that this is now a case in relation to which exceptional circumstances apply in so far as it would not be appropriate to proceed to resolve this dispute at the present time. We will continue to review this situation as circumstances develop.

End of update note

Update note: 25 November 2010

On 10 November 2010, BT filed an appeal with the Competition Appeal Tribunal (CAT) against a series of decisions made by Ofcom in connection with this dispute. Details of the appeal can be found on the CATs website at http://www.catribunal.org.uk/files/1.1171_BT_Summary_181011.pdf.

End of update note

Update note: 28 October 2010

Inclusion of further parties to the dispute

We received further a dispute submission from H3G dated 25 October 2010. We consider that Three and BT are in dispute in relation to termination charges for calls to 080 number ranges under NCCN1007 and have exhausted commercial negotiations on this issue. We therefore consider that a dispute exists between H3G and BT that falls within the scope of section 185(1) of the Act and have decided, pursuant to section 186 of the Act, that it is appropriate for Ofcom to handle the dispute. We consider that the principal issues in dispute between H3G and BT are essentially the same as the issues we are already considering in the existing dispute between BT and each of EE, O2 and Vodafone. Accordingly, we consider it appropriate to join H3G as a party to this existing dispute.

End of update note

Update note: 14 October 2010

Inclusion of further parties to the dispute

We received further a dispute submission from Vodafone dated 8 October 2010. We consider that Vodafone and BT are in dispute in relation to termination charges for calls to 080 number ranges under NCCN1007 and have exhausted commercial negotiations on this issue. We therefore consider that a dispute exists between Vodafone and BT that falls within the scope of section 185(1) of the Act and have decided, pursuant to section 186 of the Act, that it is appropriate for Ofcom to handle the dispute. We consider that the principal issues in dispute between Vodafone and BT are essentially the same as the issues we are already considering in the existing dispute between EE, O2 and BT. Accordingly, we consider it appropriate to join Vodafone as a party to the existing dispute.

End of update note

Update note: 28 September 2010

Inclusion of further parties to the dispute

Following publication of the original Competition and Consumer Enforcement Bulletin entry relating to a dispute between EE and BT, we received further a dispute submission from O2 dated 23 September 2010. We consider O2 and BT are in dispute in relation to the same charges and have exhausted commercial negotiations on this issue. We therefore consider that a dispute exists between O2 and BT that falls within the scope of section 185(1) of the Act . We have decided, pursuant to section 186 of the Act, that it is appropriate for Ofcom to handle the dispute. We consider that the principal issues in dispute between O2 and BT are essentially the same as the issues we are already considering in the NCCN1007 Dispute. On this basis, we consider it appropriate to join O2 as a party to the NCCN 1007 Dispute.

End of update note

BT notified originating call providers (OCPs) of the termination charges that are the subject of this dispute on 3 March 2010. Those charges were contained in NCCN 1007 and were effective from 1 April 2010. Certain corrections to NCCN1007 were made by NCCN1046, which was notified to OCPs on 23 August 2010 and effective from 25 August 2010.

The termination charges for calls to 080 number ranges in NCCN 1007 (as corrected by NCCN1046) are similar to those considered in two previous, closely-related disputes that have been determined by Ofcom:

• Ofcom case ref: CW/01036/03/09: A dispute concerning tiered, variable termination charges for calls to 080 numbers, which was determined on 5 February 2010; and
• Ofcom case ref: CW/01042/01/10: A dispute concerning tiered, variable termination charges for calls to 0845 and 0870 numbers, which was determined on 10 August 2010.

In relation to the termination charges that are the subject of this dispute, EE considers that:

• BT should not be levying any termination charges for calls to 080 numbers;
• there should be no link between BTs wholesale charges and EEs retail charges;
• BTs charges bear no relation to the underlying costs of the service provided; and
• BTs ladder of tiered, variable charges for calls to 080 numbers is inherently discriminatory and unfair in that different operators are charged differing amounts for an equivalent service.

Furthermore, EE considers that the charges that are the subject of this dispute are impracticable and unworkable, and give rise to wider implications of such a fundamental nature as to mitigate against any such change.

On the face of EEs request to Ofcom to resolve a dispute, there appears to be a dispute between EE and BT that commercial negotiations have failed to resolve. We consider that the dispute meets the relevant statutory criteria and it is appropriate for Ofcom to handle it according to section 186 of the Act. Accordingly, Ofcom has accepted the dispute for resolution.

In resolving disputes, Ofcom must act in accordance with the six Community requirements that give effect to Article 8 of the Framework Directive.

In summary, those requirements are:

• to promote competition in communications markets;
• to secure that Ofcom contributes to development of the European internal market;
• to promote the interests of all European Union citizens;
• to act in a manner which, so far as practicable, is technology-neutral;
• to encourage, to the extent Ofcom considers it appropriate, the provision of network access and service interoperability; and
• to encourage such compliance with certain international standards as is necessary for facilitating service interoperability and securing freedom of choice for the customers of communications providers.

Scope of the dispute:

After consideration of the submissions received from EE and BT, the scope of the dispute is to determine whether it is fair and reasonable for BT to apply new termination charges for calls to 080 numbers hosted on its network, which are based on the level of the retail charge made by OCPs for calls to these numbers, as specifically set out in NCCN1007 (as corrected by NCCN1046).

Procedural matters:

Guidance on the resolution of the dispute can be found in Ofcom's Guidelines for the handling of competition complaints, and complaints and disputes about breaches of conditions imposed under the EU Directives. See http://stakeholders.ofcom.org.uk/consultations/enforcement/.

All representations on the scope of the dispute should be submitted to Ofcom by 5pm on Monday 20 September 2010. Stakeholders interested in the outcome of this dispute should notify Ofcom by 5pm on Monday 20 September 2010 describing the relevance of the outcome of the dispute to their business.

Stakeholders with relevant information and evidence in respect of this dispute should submit this to Ofcom by 5pm on Monday 4 October 2010 Stakeholders who wish Ofcom to join them as parties to the dispute must provide evidence, as set out in Ofcom's Guidelines that they are in dispute.

Footnotes:
1.- NCCN1046 corrects certain typographical errors contained in NCCN 1007.