The Competition Appeals Tribunal (CAT) ruled on
Thursday that Ofcom had failed to prove that changing the ‘number
porting’ regime would cost the industry just £5 million.
Number portability, or ‘porting’, enables subscribers to a fixed
or mobile network to retain their telephone number when they change
network operator. Ofcom sets rules on porting to make it easier for
consumers to keep their mobile number when they switch providers,
enabling them to receive calls using their existing number within a
short period of moving to a new mobile network.
Ofcom used to give mobile operators five business days for
porting. It reduced that period to two business days from March
this year and it planned to reduce it further, to just two hours,
with effect from the start of this month. It said that change would
cost the industry £5 million.
Vodafone challenged Ofcom's two-hour proposal, arguing that the
cost of that change would be closer to £37 million per network. It
was supported by mobile operators BT, O2, Orange and T-Mobile.
Vodafone argued that the regulator did not know the basis of the
cost of £5 million for two-hour portability. The CAT ruling said
that Vodafone “also submitted that … there was an absence of any
technical specification in the [Ofcom] Decision.
The ruling continued: “There are also additional substantial
cost elements involved in the move to recipient-led two hour
porting that have not been properly considered by Ofcom in adopting
the Decision.”
The CAT criticised Ofcom’s lack of evidence to substantiate its
calculations. It said: “At the hearing, counsel for Ofcom stated
that the figure of £5m was adopted from internal working by Ofcom
staff. The calculation did not appear in any documents before the
tribunal.”
The tribunal concluded that Ofcom should “seek the fresh views
of the industry on the issue of altering the current arrangements
in the UK for fixed and mobile porting, on the basis of appropriate
evidence and analysis in light of the findings set out in this
judgment.”
It added: “The Tribunal further considers that a staged approach
to decision making in a matter of such complexity may be
advantageous.”
Kevin Russell, CEO of rival operator 3 UK, said: “This is a
technical and legal decision that has somehow completely forgotten
the consumer and is in danger of delaying the current
process.
This could force the delivery date [for fast porting] back from
September 2009 into 2010.”
The UK currently lags behind other European countries,
especially Malta and Ireland, which were ranked this month by the
European Commission as being most efficient in mobile number
portability, with changeover times of no more than one day.
That benchmark is set to become the EU’s objective, with
proposals submitted by the Commission last November and currently
before the European Parliament stating that within one working day
consumers in the EU should be able to change their fixed or mobile
operator while keeping their phone number.
Telecommunications operators can appeal Ofcom decisions to the
Competition Appeal Tribunal which can review both the legal and
economic analysis undertaken by Ofcom and overturn decisions if it
does not agree with Ofcom’s reasoning.
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