The CAT handed down judgment in two major appeals on 20 May (the appeals having been heard together in January and February):
(1) Mobile Call Termination – in which the CAT upheld Ofcom’s finding that H3G had significant market power in the market for mobile call termination on H3G’s network, and its related decision to impose a price cap on H3G’s termination charges (i.e. the charges imposed by H3G on other mobile network operators for connecting calls to H3G subscribers). Ofcom is empowered to impose “SMP Conditions” by Part 2 of the Communications Act 2003, which gives effect to a raft of EC communications directives. Ofcom made similar findings in relation to the other mobile network operators, but there were not appealed. H3G’s appeal against the level of the price cap (together with a similar appeal by BT) is currently before the Competition Commission – as the first price control reference under s.193 of the Communications Act 2003.
(2) Termination Rate Disputes – in which the CAT upheld appeals by T-Mobile, BT, H3G and the FNOs (a group of fixed network operators led by Cable & Wireless) against Ofcom’s resolution of a number of disputes between (a) BT and each of the MNOs; and (b) H3G and each of O2 and Orange. Ofcom is empowered to resolve disputes between communications providers under s.185 of the Communications Act 2003, which also gives effect to the EC communications directives. In this case, each dispute concerned the prices charged by the MNOs for mobile call termination, and in each case Ofcom had upheld rates that were said by the appellants to be too high. The Tribunal is currently considering the level at which Ofcom should have fixed the rates in dispute, and intends to remit the matter to Ofcom with an appropriate direction.
Peter Roth QC, Josh Holmes and Ben Lask represented OFCOM
Jon Turner QC and Meredith Pickford represented T-Mobile whilst Anneli Howard appeared for BT.