Blackstone comes through for Ofcom as BT loses CAT appeal

Blackstone Chambers’ Pushpinder Saini QC has won a major dispute on behalf of Ofcom after the Competition Appeal Tribunal (CAT) ruled that Ofcom held jurisdiction to resolve telecoms providers’ disputes over British Telecom’s (BT) regulated prices.

Ofcom: bestowed the power to intervene in telecoms disputes
Ofcom: bestowed the power to intervene in telecoms disputes

The appeal stemmed from a long-running row between BT and Everything Everywhere (EE) over BT’s termination charges for calls to 080 numbers originating from EE’s network. Ofcom sought to intervene to resolve the dispute, arguing that it was entitled to do so under the Communications Act 2003.

The appeal focused on whether Ofcom was right to intervene. BT was represented by Brick Court Chambers’ Sarah Lee, who was instructed by CMS Cameron McKenna.

BT argued that Ofcom could not intervene because the issues between BT and EE were not actual ’disputes’ within the meaning of the legislation and, if they were ’disputes’, Ofcom should have declined to intervene because other means of ­resolution were available.

Ofcom was supported by several major telecoms providers in its defence of the matter.

Monckton Chambers’ Philip Woolfe was instructed for EE by general counsel James Blendis. EE argued that the charges applied by BT were impracticable and unworkable and had far-reaching implications for all network providers.

Herbert Smith instructed Alan Bates, also of ­Monckton, for British Sky Broadcasting and TalkTalk Telecom Group.

Virgin Media called in Olswang, which instructed Blackstone’s James Segan, and Baker & McKenzie partner Richard Pike appeared for Hutchison 3G.

In its judgment the CAT panel, chaired by Vivien Rose, stated: “The term ­’dispute’ should not be ­interpreted so narrowly that it does not cover the ­situation that has arisen here.”

It said Ofcom was right to intervene to prevent a major dispute arising between BT and the other telecoms providers.

The tribunal also held that Ofcom was clearly entitled to come to the view that such future ­negotiations would not be a ­satisfactory means for resolving the disputes under the Communications Act.