On completion of the market review concerning wholesale mobile voice call termination services, Ofcom issued a statement on 1 June 2004 that included a notification published pursuant to sections 48(1) and 79(4) of the Communications Act 2003. In that notification, Ofcom identified wholesale voice call termination provided by each of the mobile network operators (“MNOs”) as the relevant services markets, made market power determinations to the effect that each MNO has significant market power (“SMP”) in the respective relevant market, and set SMP conditions accordingly. These SMP conditions include a requirement for each of O2, Orange, T-Mobile and Vodafone to meet controls for the charges set for 2G voice call termination for two periods (namely, 1 September 2004 to 31 March 2005 and 1 April 2005 to 31 March 2006). These requirements include two traffic-specific sets of controls with which each MNO has to comply – one each for termination of fixed-to-mobile calls and off-net mobileto-mobile calls.
However, in setting these two controls, Ofcom recognised that some MNOs may, for operational reasons, find themselves unable to comply with such traffic-specific requirements. Ofcom therefore included a provision in these requirements that in such circumstances and with Consent in writing from Ofcom, MNOs could switch from traffic-specific to total volume controls. Following publication of the market review statement, O2, Orange, T-Mobile and Vodafone each formally requested such Consents for both periods of the control.