The Competition Appeals Tribunal (CAT) has confirmed that it has received appeals from O2, Hutchison 3G (H3G) and BT against a decision by Ofcom, on the wholesale market for mobile call termination, which found each of the five mobile network operators had significant market power (smp) for calls terminated on their own networks; and imposed obligations including price controls on each of them. H3G is predictably appealing the finding that it has significant market power in the call termination market, the imposition of a target average charge for 2G/3G operators and the imposition of a 4 year price control period. O2 is appealing the inclusion by Ofcom of off-net call termination – in particular with regards to those numbers that are ‘ported-in’ – in the mobile call termination market, and a finding that O2 has smp in that market. BT meanwhile is appealing that the prices that the mobile network operators are allowed to charge under the four year price control period are far too high and are above a reasonable cost-orientated level, which as a result distort competition.
Of course H3G have had success with a previous appeal to the CAT on the issue of whether they have/had smp. Back in November 2005 the CAT agreed with H3G that Ofcom erred in its decision to designate 3 as an operator with significant market power (SMP) in the market for wholesale call termination on its network. CAT agreed with H3G that Ofcom did not carry out a full assessment of the extent to which BT had countervailing buyer power and considered that the appropriate direction would be to require Ofcom to reconsider its determination of SMP, taking such countervailing buyer power into account – which Ofcom then did and in September 2006 ruled … that H3G had smp in the mobile call termination market, and that BT`s countervailing buyer power is insufficient to offset H3G`s presumption of smp.
What I am now wondering is if T-Mobile and Vodafone are now feeling left out, and whether we can expect appeals by them too??
One thing’s for sure, the CAT are going to have fun with these ones.