The Court of Appeal has given judgment on the circumstances in which there may be a material change in the market following a market power determination for the purposes of s.86(1) of the Communications Act 2003. A material change only occurs if the regulator’s forward-looking forecast about likely changes in competitive conditions over the relevant market review period has been falsified by subsequent developments and not merely by reason of a change in competitive conditions that accorded with the forecast. The Court of Appeal so held by a majority (Lord Justice MacFarlane and Sir Timothy Lloyd) in dismissing an appeal by TalkTalk against the decision of the Competition Appeal Tribunal that Ofcom had not erred in concluding there was no material change in one of the wholesale broadband access markets in which TalkTalk wished to provide services. Sir Bernard Rix dissented.
Hanif Mussa acted for the successful respondent, Ofcom.