Dispute resolution - Jurisdiction - Mobile telephony - Telephone charges

British Telecommunications Plc (appellant) v Office of Communications (respondent) & (1) Everything Everywhere Ltd (2) Hutchison 3g UK Ltd (interveners): British Telecommunications Plc (appellant) v Office of Communications (respondent) & (1) Virgin Media Ltd (2) Everything Everywhere Ltd (3) Talk Talk Telecom Group Plc (4) British Sky Broadcasting Ltd (interveners): CAT (Vivien Rose (chairman), Stephen Harrison, Clare Potter): 3 May 2011

In conjoined appeals the appellant telecommunications provider (BT) appealed against decisions of the respondent (Ofcom) to accept jurisdiction to determine disputes referred to it by the intervener communications providers.

Ofcom had upheld a complaint against BT about a wholesale pricing structure introduced for mobile network operators for a certain non-geographic telephone number, and a complaint arising from BT charges for ethernet facilities.

BT appealed against both decisions.

The judgment on the pricing appeal was awaited.

BT then introduced a similar wholesale pricing structure, which resulted in a further complaint to Ofcom, and further complaints were made about ethernet charges.

Ofcom accepted jurisdiction to hear both new disputes.

It refused BT’s request to extend time for dealing with the pricing dispute pending the handing down of the pricing appeal judgment, but found that there were exceptional circumstances for extending time to deal with the ethernet dispute, namely overlap with the issues in the earlier ethernet appeal which had not been handed down at that time.

BT argued that (1) Ofcom had erred in finding that ‘disputes’ existed between it and the interveners within the meaning of section 185 of the Communications Act 2003 as there were prospects of future negotiations after the judgments had been handed down in two earlier appeals;

(2) Ofcom should have declined jurisdiction under section 186(3) because the future negotiations were ‘alternative means’ of resolution, which would have provided a ‘prompt and satisfactory resolution’ of the disputes; (3) time should have been extended for resolving the pricing dispute.

Held: (1) The word ‘dispute’ in section 185 should bear its ordinary meaning and should be construed so as to make Ofcom's jurisdiction dependent on a detailed assessment of the state of preceding negotiations between parties to a dispute, Orange Personal Communications Services Ltd v Office of Communications [2007] CAT 36 applied.

The possibility of further negotiations was not inconsistent with the existence of a dispute, and did not for the purposes of the Directive 2002/21 article 20 or the directive 2002/19 article 5 prevent the parties from having ‘failed to reach agreement’ and so being able to call on the national regulatory authority to resolve the dispute.

BT had chosen to issue the new pricing structure before the pricing appeal judgment had been handed down; the tribunal would not strain to interprets s.185 in a way that shielded BT’s conduct from the exercise of Ofcom’s dispute resolution powers.

The ethernet appeal judgment might not resolve all the ethernet charging issues.

There were no pragmatic reasons why ‘dispute’ should be interpreted so narrowly that it did not cover the instant situation (see paragraphs 31, 34-35, 38, 44, 49 of judgment).

(2) Even where the conditions in section 186(3) for declining jurisdiction were satisfied, Ofcom had a discretion to decide to handle disputes rather than requiring the parties to use alternative means.

In any event, Ofcom had been entitled to conclude that future negotiations would not be satisfactory as an alternative means of resolving the disputes (paragraphs 53, 55).

(3) Ofcom was entitled to conclude that extending time to resolve the pricing dispute would result in an unreasonable delay; that decision was not inconsistent with the extension granted in respect of the ethernet dispute.

Appeals dismissed.

Sarah Lee (instructed by CMS Cameron McKenna) for the appellant; Pushpinder Saini QC, Hanif Mussa (instructed by the in-house solicitor) for the respondent; Philip Woolfe (instructed by the in-house solicitor) for the intervener Everything Everywhere; Richard Pike (instructed by Baker & McKenzie) for the intervener Hutchison 3G UK Ltd; James Segan (instructed by Olswang) for the intervener Virgin Media Ltd; Alan Bates (instructed by Herbert Smith) for the interveners Talk Talk Telecom Group Plc and British Sky Broadcasting Ltd.