Disputes Resolution Guidelines

Issue 11 February 2011

Executive Summary

• BT shares Ofcom’s goal of ensuring that it handles disputes expeditiously, effectively and economically. We agree that central to achieving this - particularly against a backdrop of increasing resource challenges - is to reduce the number and complexity of the disputes that Ofcom receives.
• We therefore welcome Ofcom’s proposals to encourage CPs to resolve their issues through negotiation. We support Ofcom’s increased emphasis on Alternative Dispute Resolution and its proposals for introduction of a more rigorous enquiry phase, which focuses on better understanding of where and why the parties are actually in disagreement.
• We are concerned, however, that Ofcom’s proposed guidelines are in the nature of a “one size fits all” solution.
• As Ofcom is well aware, the complexity and value of disputes referred to Ofcom vary greatly. While many are non-complex, relatively low value, and purely commercial (e.g. disputes concerning contractual terms around interconnection), others are highly complex, of high value and involve novel regulatory policy (e.g. the 080/0845 disputes). In BT’s view, Ofcom’s proposed guidelines are more apt to deal with the former rather than the latter. As such, our suggestions and comments in this Response focus around the more complex-type of disputes.
• Key amongst our comments is that Ofcom should adopt a process that differentiates between disputes and matters concerning regulatory compliance, and deals with compliance issues under its compliance powers and delay its resolution of the dispute in the meantime per its exceptional circumstances power.
• We also comment that where a dispute raises novel regulatory issues and requires Ofcom to take significant regulatory decisions, Ofcom should take these via an industry-wide consultation ahead of resolving the particular dispute. In cases where such regulatory issues involve network access issues, Section 105 Communications Act 2003 provides a process for Ofcom to make regulatory decisions.
• We also have concerns about Ofcom’s proposals on information gathering and its proposed changes to the way it consults on provisional conclusions and findings. We believe that reduced flexibility over sending draft information requests and around deadlines to provide essential information, combined with reduced opportunity to comment on draft determinations, will end up being counter-productive to Ofcom’s goal of handling disputes expeditiously, effectively and economically.

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BT welcomes comments, which should be sent by email to george.ritchie@bt.com.