Category Archives: Telecoms

Competition round-up: January 2013

As today is the first day of the new court term, I thought it would be a good moment for a round-up of last term’s competition cases – and, of course, the customary plug of our own blogs.

If there was a theme to the Michaelmas term, it was the highs and lows of follow-on claims. Few pieces of legislation can have attracted so much judicial attention in so short a time as s.47A of the Competition Act 1998. It has now gone as far as the Supreme Court, which confirmed in BCL Old Company Ltd v BASF plc [2012] UKSC 45 that the rules governing limitation periods for bringing follow on claims in the CAT are not so unpredictable as to breach European principles of legal certainty (a topic which I blogged on here). Continue reading

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Down the rabbit-hole: costs, the Comms Act and the Competition Commission

‘“But I don’t want to go among mad people,” Alice remarked.

“Oh, you can’t help that,” said the Cat:  “we’re all mad here”.’

Where an appeal to the Tribunal under section 192 of the Communications Act 2003 gives rise to specified ‘price control matters’, the CAT must hive them off for determination by the Competition Commission: see section 193(1) and SI 2004/2068.  The CAT is then bound by section 193(6) to follow the Commission’s determination, except ‘to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the Competition Commission is a determination that would fall to be set aside on such an application’: section 193(7).

This “quasi-judicial review within an appeal” jurisdiction under section 193(7) is tribute in itself to the complexity of the legal imagination.  In British Telecommunications Plc v Office of Communications [2012] CAT 30 the Tribunal takes us deeper still into wonderland with this question: can the Competition Commission, when it participates in a section 193(7) review before the Tribunal, recover its costs of so doing? Continue reading

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Flip Flopping: Telefonica UK v Office of Communications

What should Ofcom do when mobile network operators (“MNOs”) spot a loophole in the regulator’s price control mechanism and proceed to “game” the system over several years, increasing their revenues by many millions of pounds?

This unsuccessful appeal before the Competition Appeal Tribunal was brought by Telefonica, the only MNO that had failed to exploit the loophole, against Ofcom’s decision that, although it intended to amend the price control regime prospectively, it would not interfere with charges that had already been levied in accordance with the letter, if not the spirit, of the regime. The case raises an interesting point about the value to be placed on legal certainty by Ofcom. Continue reading

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Competition round-up: Summer 2012

As most of us are now returned from our summer holidays, I thought I’d take advantage of the ‘back to school’ feeling with a round-up of the most significant competition cases since Easter. This also provides a good excuse to highlight the best blogs from the Competition Bulletin’s first couple of months.

I’ll start with a case that should, but probably won’t, make the law reports: the decision of the Appeal Panel of the Rugby Football Union, which held in an appeal by London Welsh that the RFU rules on primacy of tenure are contrary to Articles 101 and 102 TFEU and therefore void. The case is notable not only for the finding itself, but also because it was heard and decided so quickly – arguments which would take days in the High Court (and probably weeks in the CAT) were heard over the course of a day, and the 38-page judgment completed the following day. James Segan blogged on the case here.

There has been much good news for claimants in follow-on damages claims. Continue reading

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Keeping the CAT in its bag: the 08 Appeal

Ofcom will likely be delighted by the result in the Court of Appeal’s decision in Telefonica O2 UK Limited and others v British Telecommunications PLC [2012] EWCA Civ 1002, in which the Regulator appeared as an interested party.

Not only does the judgment uphold Ofcom’s various dispute determinations relating to ladder pricing by BT for termination of calls to certain non-geographic number ranges, but the judgment make Ofcom’s life easier in a number of respects.

First, and for the immediate future, Ofcom will likely benefit from a decrease in its dispute determination workload. The decision of the CAT which was challenged before the Court of Appeal had generated a web of interlinked disputes raised by various communications providers to be determined by Ofcom under the s.185 Communications Act 2003 procedure. Continue reading

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As long as the regulator’s foot

The Court of Appeal’s remarks in BT v Ofcom (Partial Private Circuits) make Ofcom’s dispute-resolution power a still more distinctive alternative to court litigation, and in the right circumstances a more attractive one.  

The appeal arose out of a dispute, brought to Ofcom under s.185 Communications Act 2003, about whether BT had overcharged for partial private circuits (“PPCs”), components necessary for other communications providers to extend their networks. Ofcom decided in 2009 that it had, and ordered repayment. That decision was upheld by the CAT on appeal.

Much of BT’s further appeal to the Court revolved around whether Ofcom had failed to take various aspects of the domestic and European regulatory framework into account. The Court ruled that it had not.

But there were two issues of greater long-term interest. Continue reading

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Ex ante and ex post regulation following Telefónica

Hats off to Spain for having the nerve to suggest that it might have been a better target for the Commission’s attention than Telefónica, the former monopoly telecoms provider recently fined over €150 million for committing a margin squeeze in the Spanish broadband market (see case T-398/07 Kingdom of Spain v Commission).

The case is the latest in a line which tests the boundary between ex ante regulation (obligations imposed on particular undertakings by national regulatory bodies) and ex post competition law (in this case, the general prohibition against abuse of dominance). Continue reading

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