The Competition Appeal Tribunal handed down judgment on Friday dismissing CityFibre’s appeal under section 192 of the Communications Act 2003 against a decision made by Ofcom in relation to a commercial offer from Openreach (Equinox).
Under the offer, internet service providers receive discounts from Openreach if they meet certain targets for the percentage of new orders from Openreach which are Fibre to the Premises (FTTP) as opposed to slower, legacy products. Ofcom concluded that the targets did not create a potential barrier to purchasing FTTP products from alternative networks, such as CityFibre, and that no intervention was necessary. CityFibre contended that a key conclusion relied upon by Ofcom – regarding the overlap between Openreach and CityFibre’s networks - had been inadequately investigated, consulted on and/or evidenced, and that Ofcom had misdirected itself in law by failing to apply its own analytical framework.
The Tribunal rejected both grounds of CityFibre’s appeal. The Tribunal accepted that a court should be cautious about interfereng with a consultation process carried out by an expert regulator. It held that the consultation process could perhaps have been improved on, but was not so flawed as to be unlawful, and that no prejudice was suffered by CityFibre in any event. The Tribunal further held that Ofcom's investigations had been adequate and there was a sufficient evidential basis for its decision. The Tribunal did not consider that Ofcom had misdirected itself in applying the tests set out in various policy statements, but had carried out its function reasonably and within its margin of discretion.
The full judgment can be read here.
Monica Carss-Frisk QC, Naina Patel and Tom Coates acted for Ofcom.
Jessica Boyd QC and Isabel Buchanan acted for CityFibre Limited.