Introduction
The NGCS statement
1.1 Over the last three years we have undertaken a detailed review of non-geographic call services. We have today published a statement which sets out our decision to make changes to the regulation of these number ranges: Simplifying non-geographic numbers; final statement on the unbundled tariff and the 080 and 116 ranges ('the NGCS statement').
1.2 In the NGCS statement we set out our decision to make the 080 and 116 number ranges free-to-caller from all telephones (both fixed and mobile). We have also decided to set an access condition on persons that terminate calls to 080 and/or 116 numbers (terminating communications providers or TCPs) requiring them to purchase wholesale origination for calls to these numbers on fair and reasonable terms (including charges). These decisions therefore confirm the view we set out previously in our April 2013 policy position.
April 2013 guidance consultation
1.3 We anticipate that making the 080 and 116 ranges free-to-caller may prompt changes to current wholesale arrangements for calls to these numbers. We recognise that negotiations relating to revised origination charges for these calls may give rise to potential disputes as to what constitutes a fair and reasonable charge (as required by our access condition). We therefore consider it would be helpful to provide guidance as to how we would resolve any such future dispute.
1.4 In April 2013 therefore, alongside our policy position, we also published draft guidance on how we would be likely to assess what is a fair and reasonable origination charge for calls to (free-to-caller) 080 and 116 numbers, if called to do so in a dispute.
Final guidance
1.5 We received 8 responses to our draft guidance. All of the non-confidential responses are available on our website. To the extent relevant, we have also taken into account stakeholder comments on the approach we took to deriving ranges of origination charges for the purposes of our impact assessment (impact assessment ranges or IARs) in the April 2013 policy position.
1.6 Having considered all comments from stakeholders, we are now publishing our final guidance. This statement therefore summarises the comments received from stakeholders, sets out our response to those comments, and describes the approach we have decided to adopt. Our guidance is set out in full in the Annex to this statement.
The dispute resolution process
1.7 Section 185(1)(a) of the Communications Act 2003 (the Act) gives Ofcom jurisdiction to resolve certain disputes, including those relating to the provision of network access between different communications providers (CPs). By virtue of section 185(8), this includes a dispute as to the terms or conditions on which network access is or may be provided in a particular case. Section 185(2) of the Act also gives Ofcom jurisdiction to resolve a dispute between CPs relating to rights or obligations conferred or imposed by or under Part 2 of the Act.
1.8 Section 185(3) provides that any party to a dispute may refer it to Ofcom. Section 185A empowers Ofcom to invite any one or more of the parties to a dispute to refer it to Ofcom under section 185(3).
1.9 Section 186 of the Act provides that where a dispute is referred to Ofcom in accordance with section 185, Ofcom must decide whether or not it is appropriate to handle it, and sets out the considerations that Ofcom may take into account in doing so.
1.10 Where it is appropriate for Ofcom to handle the dispute, section 188 of the Act provides that Ofcom must consider the dispute and make a determination for resolving it within four months, except in exceptional circumstances.
1.11 Ofcom's powers to resolve disputes are set out in section 190 of the Act. They include the power to make a declaration setting out the rights and obligations of the parties to the dispute, to give a direction fixing the terms or conditions of transactions between the parties to a dispute, and/or to give a direction imposing an obligation, enforceable by the parties to a dispute, to enter into a transaction on the terms and conditions fixed by Ofcom. For the purpose of giving effect to a determination of the proper amount of a charge in respect of which amounts have been paid by one of the parties to the dispute to the other, Ofcom may also give a direction requiring the payment of sums by way of adjustment of an underpayment or overpayment.
How Ofcom resolves a dispute
1.12 Ofcom has published guidelines, which describe our dispute resolution process in detail. Stakeholders should refer to those guidelines for information on how to refer a dispute to Ofcom, the submission requirements we will apply and the process we will follow.
1.13 Dispute resolution is a statutory function, which Ofcom must exercise consistently with its statutory duties, in particular as set out in sections 3 and 4 of the Act (which give effect, amongst other things, to the requirements of Article 8 of the Framework Directive).
1.14 A determination made by Ofcom to resolve a dispute binds all the parties to that dispute. Since a subsequent dispute with similar facts is likely to result in a similar decision (given our statutory duties, including our duty to have regard to the principle that regulatory activities should be consistent) we would expect dispute determinations to be read across and followed in situations where a third party is facing similar questions and circumstances to the dispute that has been determined.
1.15 Ofcom's duty to resolve disputes within four months (except in exceptional circumstances) has an impact on the level of analysis that it is appropriate and feasible for Ofcom to undertake. We are rarely, for example, able to carry out the same detailed level of analysis of costs as we would in exercising other ex ante regulatory powers, such as in a market review. In making a determination to resolve a dispute, Ofcom will rely on its best assessment of the available evidence within the four month statutory deadline.
Structure of this document
1.16 In Section 2 we summarise the stakeholder comments we received in response to the April 2013 draft guidance as well as setting out our response to those comments and providing a high level summary of our final guidance on how we would approach any future dispute as to whether origination charges for calls to the 080 or 116 number ranges are fair and reasonable. The final guidance is set out in full in Annex 1.
1.17 In Section 3, we explain how we have recently applied the three Principles in our final guidance to currently available evidence for the purposes of our impact assessment contained within the NGCS statement.