The Court of Appeal rules against Competition Appeal Tribunal’s retroactive MTR fee setting

The Court of Appeal (“CoA”) has ruled that the Competition Appeal Tribunal (“CAT”) could not order The Office of Communications (“Ofcom”) to backdate a reduction in the termination rates mobile companies can charge.

The CoA concluded that Ofcom could only set “prospective” conditions on remedies such as mobile termination rates (“MTR”) and that any subsequent order to modify them can not be applied retroactively.

In March 2007, Ofcom had set mobile call termination price controls on the mobile network operators (“MNO”) which was to be in force from 1 April 2007 to 31 March 2011. British Telecom (“BT”) appealed the decision to the CAT, successfully arguing that the caps were too high. In an April 2009 judgment, the CAT agreed with BT, and directed Ofcom to adopt new price controls for the whole period in question. As a result, four of the five MNOs challenged the decision before the CoA.

If BT decides to challenge the CoA decision on the grounds of substance, it would need to ask the Supreme Court for leave to appeal.