Even though telecoms regulator Ofcom declared in two separate determinations in 2010 that the charges introduced by BT were not fair and reasonable, it was overruled in August 2011 by the Competition Appeal Tribunal. Unlike the other MNOs, O2 managed to obtain a partial stay of the CAT Order from the Court of Appeal in October last year.
On 15 February 2012, Telefónica was granted permission to appeal by the Court of Appeal and the substantive appeal hearing was held on 1-3 May 2012. After deliberations lasting almost three months, a three judge bench of the Court of Appeal issued a 35-page judgment upholding Ofcom’s original determinations and finding that the charges introduced by BT have no effect and are to be treated as never having had any effect.
SJ Berwin partner Elaine Gibson-Bolton said: The Court of Appeal has importantly re-stated the scope of Ofcom’s powers to regulate disputes and removed the uncertainty introduced by the CAT over the test to be applied in the future for disputed interconnection charges. Commercially, subject to any further appeal by BT, the judgment has significant financial implications for the industry.