Opal Telecom Ltd (“Opal”) referred a dispute to Ofcom for resolution on 23 December 2005 in relation to, as it set out, the retrospective application of certain of BT’s charges for carrier pre-selection (“ CPS”) that were set by Ofcom in August 2005. Opal’s dispute was subsequently supported by THUS plc (“Thus”), Verizon Business (“Verizon”) and Your Communications Ltd (“Your Communications”), who were all accepted by Ofcom as being parties to the dispute.
BT has offered to apply these charges retrospectively back to 28 November 2003, and to refund the difference between the new charges and those actually charged for the period. Opal considered that the charges should be applied back to 1 October 2002. Opal also considered that BT should apply retrospectively changes that it had made to BT’s charge for CPS forecast shortfalls.
In February 2006, Ofcom published details of the scope of the dispute that it intended to resolve. Specifically, Ofcom advised that it would determine whether:
- BT must also repay Opal, THUS, Verizon Business and Your Communications, with interest, the difference between the level of the CPS charges actually charged and those set by Ofcom in the August 2005 Direction, for the period 1 October 2002 to 27 November 2003; and
- BT must repay Opal, THUS, Verizon Business and Your Communications, with interest, the difference between the level of the charges actually made by BT for CPS forecasting shortfalls and the reduced charge introduced by BT as a result of the CPS Direction, for the period 1 October 2002 to 17 August 2005 inclusive.
Having considered its legal powers in relation to the recovery of over-paid charges and the history of the discussions regarding CPS charges, Ofcom is minded to conclude that, on the facts, it may have the power to require the repayment of any over-recovered charges back.