" (a) promoting regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods; (b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services; (c) safeguarding competition to the benefit of consumers and promoting, where appropriate, infrastructure-based competition; (d) promoting efficient investment and innovation in new and enhanced infrastructures, including by ensuring that any access obligation takes appropriate account of the risk incurred by the investing undertakings and by permitting various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, whilst ensuring that competition in the market and the principle of non-discrimination are preserved; (e) taking due account of the variety of conditions relating to competition and consumers that exist in the various geographic areas within a Member State; (f) imposing ex-ante regulatory obligations only where there is no effective and sustainable competition and relaxing or lifting such obligations as soon as that condition is fulfilled. "
" Number portability is a key facilitator of consumer choice and effective competition in a competitive telecommunications environment such that end-users who so request should be able to retain their number(s) on the public telephone network independently of the organisation providing service. [...]"
" Without prejudice to [...] the provisions of [...] Article [...] 30 of Directive 2002/22/EC (Universal Service Directive) [...] national regulatory authorities shall not impose the obligations set out in Articles 9 to 13 on operators that have not been designated in accordance with paragraph 2. "
" Obligations imposed in accordance with this Article shall be based on the nature of the problem identified, proportionate and justified in the light of the [Article 8 Objectives] . Such obligations shall only be imposed following consultation in accordance with Articles 6 and 7 of [the FD] . "
" (b) the desirability of promoting competition in relevant markets; [...] (d) the desirability of encouraging investment and innovation in relevant markets; "
" (a) efficiency and sustainable competition; (aa) efficient investment and innovation; and (b) the maximum benefit for the persons who are customers of communications providers and of persons who make associated facilities available. "
" (a) the imposition of burdens which are unnecessary; or (b) the maintenance of burdens which have become unnecessary. "
"(1) General conditions may include conditions which — [...] (e) require an allocation of particular telephone numbers to be transferred from one communications provider to another in the circumstances provided for in the conditions; [...] (2) General conditions may also — [...] (f) regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of or in connection with, the transfer of an allocation from one person to another."
"The Communications Provider shall provide Number Portability within the shortest possible time, including subsequent activation, on reasonable terms and conditions, including charges, to any of its Subscribers who so request."
"The Communications Provider shall, pursuant to a request from another Communications Provider, provide Portability as soon as is reasonably practicable in relation to that request on reasonable terms. Any charges for the provision of such portability shall be made in accordance with the following principles: (a) subject always to the requirement of reasonableness, charges shall be cost oriented and based on the incremental costs of providing Portability unless: (i) the Donor Provider and the Recipient Provider have agreed another basis for the charges, or (ii) the Office of Communications has directed that another basis for charges should be used, (b) the Donor Provider shall make no charge in relation to System Set-Up Costs or Additional Conveyance Costs; [...] (d) charges levied by the Donor Provider shall be based on the reasonable costs incurred by it in providing Portability with respect to each Telephone Number; [...] "
"[...] we consider that the following principles should inform our approach to disputed questions upon which Ofcom has exercised a judgment of the kind under discussion: (a) Since the Tribunal is exercising a jurisdiction "on the merits", its assessment is not limited to the classic heads of judicial review, and in particular it is not restricted to an investigation of whether Ofcom's determination of the particular issue was what is known as Wednesbury unreasonable or irrational or outside the range of reasonable responses. (b) Rather the Tribunal is called upon to consider whether, in the light of the grounds of appeal and the evidence before it, the determination was wrong. For this purpose it is not sufficient for the Tribunal simply to conclude that it would have reached a different decision had it been the designated decision-maker. (c) In considering whether the regulator's decision on the specific issue is wrong, the Tribunal should consider the decision carefully, and attach due weight to it, and to the reasons underlying it. This follows not least from the fact that this is an appeal from an administrative decision not a de novo rehearing of the matter, and from the fact that Parliament has chosen to place responsibility for making the decision on Ofcom. (d) When considering how much weight to place upon those matters, the specific language of section 316 to which we have referred, and the duration and intensity of the investigation carried out by Ofcom as a specialist regulator, are clearly important factors, along with the nature of the particular issue and decision, the fullness and clarity of the reasoning and the evidence given on appeal. Whether or not it is helpful to encapsulate the appropriate approach in the proposition that Ofcom enjoys a margin of appreciation on issues which entail the exercise of its judgment, the fact is that the Tribunal should apply appropriate restraint and should not interfere with Ofcom's exercise of a judgment unless satisfied that it was wrong. "
"[...] We consider that, mutatis mutandis , those principles should similarly guide our approach to the challenges to the Determination on the basis of the requirements in [section 4 of the 2003 Act] and Art 8 of the Framework Directive. In particular, since, as has repeatedly been emphasised, the Tribunal is not a second-tier regulator, the fact that the Tribunal might have preferred to give different weight to various factors in the exercise of a regulatory judgment would not in itself provide a sufficient basis to set aside the determination made by Ofcom. "
" 2.49. Our aim is to provide greater clarity as to compliance with the requirements of GC18 going forward; avoid unnecessary disputes, so far as is possible; and facilitate the resolution of disputes, should CPs fail to agree commercial terms after the publication of this guidance. 2.50. We would expect to apply this guidance when resolving a dispute concerning porting charges, taking into account the specific circumstances of the case. "
" - promoting competition in the provision of electronic communications networks and services, associated facilities and the supply of directories; - taking account of the desirability of Ofcom in carrying out its functions in a manner which, so far as practicable, does not favour one form of or means of providing electronic communications networks, services or associated facilities over another; and - encouraging, to such extent as Ofcom considers appropriate for certain prescribed purposes, the provision of network access and service interoperability, namely securing efficient and sustainable competition and the maximum benefit for customers of communications providers. "
" To determine whether the APCCs that BT has charged Gamma and Vodafone [...] were set in accordance with GC18.5(a). If BT's APCCs were not set in accordance with GC18.5(a), to determine what the APCCs should have been [...] and what payments (if any) BT should make to Gamma and/or Vodafone as a result. "
" BT could not appeal on the merits against Ofcom's move from LRIC+ to LRIC for the purposes of GC18.5(a), notwithstanding the terms of Article 4 FD, because it was contained in "
" The reason for those comparatively short windows of time is well-established in administrative law. As Baroness Hale explained in A v Essex County Council [2010] UKHL UKSC 33 at paragraph 116: "there is a significant public interest in public law claims against public bodies being brought expeditiously", in particular because the public authority's decision "may affect large numbers of people or [provide the basis] upon which other decisions have depended and action been taken. "
" 1. Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory body has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism [...]"
" At this stage it is necessary to return to the point that the rule of court applies across the board to judicial review applications. If a decision-maker indicates that, subject to hearing further representations, he is provisionally minded to make a decision adverse to a citizen, is it to be said that time runs against the citizen from the moment of the provisional expression of view? That would plainly not be sensible and would involve waste of time and money. Let me give a more concrete example. A licensing authority expresses a provisional view that a licence should be cancelled but indicates a willingness to hear further argument. The citizen contends that the proposed decision would be unlawful. Surely, a court might as a matter of discretion take the view that it would be premature to apply for judicial review as soon as the provisional decision is announced. And it would certainly be contrary to principle to require the citizen to take such premature legal action. In my view the time limit under the rules of court would not run from the date of such preliminary decisions in respect of a challenge of the actual decision. If that is so, one is entitled to ask: what is the qualitative difference in town planning? There is, after all, nothing to indicate that, in regard to RSC Ord 53, r 4(1), town planning is an island on its own. "
" This decision of course is binding on this court. But it is binding for what it decides; and to my mind it is plainly distinguishable from the present case. In that case, there was a resolution to grant outline permission subject to, among other things, completion of a s.106 agreement: a context quite different from the present. As to his general approach, Lord Steyn gave a striking example, in paragraph 43 of his judgment, of a provisional decision (taken from the field of licensing). "
" That simply is not the situation here. Here, the Council was not provisionally resolving to enter any outsourcing contract at all, let alone a provisional contract relating to the DRS project or to the NSCSO project. What, as the context and the terms of the relevant decisions in November 2010 and March 2011 show, the Council was doing was actually deciding to enter into a procurement process by way of competitive dialogue. That process then, and in accordance with the 2006 Regulations, proceeded in stages. Thus, in contrast with the initial resolution in Burkett, work here was lawfully and foreseeably done and money was expended precisely because of such decisions. The decisions thus had and were intended to have legal effect: not, of course, in terms of sanctioning a binding contract but in terms of authorising and causing the initiation of the procurement process, with attendant inevitable heavy expenditure and significant use of time and resources. Without such decisions, those things could not and would not have been done. Those decisions are thus, indeed, in my view properly to be regarded as substantive or, if you like, "final" (using Mr Giffin's word) for that purpose. They are not to be regarded as contingent or provisional, even though there was no guarantee at all that any outsourcing contract or contracts might ultimately result. Mr Giffin did suggest that so to conclude would be tantamount to resurrecting "the real basis of complaint" approach put forward in the Greenpeace case but which was disapproved in Burkett. In my view, however, it does no such thing: rather, as I have sought to say earlier in this judgment, it identifies the actual decision by reference to which the grounds of challenge first arose. "
" The services which BT continued to charge at LRIC+ rates were for "inter-switch conveyance", which is not necessary to the provision of number portability. Ofcom erred in fact and/or in law in concluding otherwise. Those services therefore fell outside the scope of GC18.5(a), and so should not have been treated as subject to a cost orientation requirement at all. "
" 25 Number portability is intended to remove the obstacles to consumers' freedom of choice particularly between mobile telephone operators and thus to ensure development of effective competition on the telephone services market. 26 With a view to achieving those aims, the Community legislature provided, in Article 30(2) of the Universal Service Directive, that national regulatory authorities are to ensure that pricing for interconnection related to the provision of number portability is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities. 27 The interpretation according to which the set-up costs are not covered by that provision would be contrary to the aim and purpose of the Universal Service Directive and might limit its effectiveness from the point of view of the provision of portability. 28 The set-up costs represent a large part of the costs which may be passed on directly or indirectly by the recipient operator to the subscriber who wishes to make use of the portability facility for his mobile number. "
" Charges related to number portability are regulated because of the burden they impose on operators, which must be recovered somehow from their customers. This burden falls particularly heavily on later entrants, as they will need to win customers from the incumbent provider; and a higher proportion of their customers will therefore have ported numbers, creating an impediment to competition and reducing consumer choice. The incentive of the incumbent will be to set higher porting charges. [ ... ] In the UK system, the detour taken by a ported call via a DCP's network gives rise to charges related to number portability that are not faced by a provider serving a customer with a non-ported number. The purpose of Article 30(2) USD is to keep such charges in check. "
" in ordinary language, if a facility is provided for the purpose of porting, that facility (and every component within it) enables porting. It matters not that porting could also have been enabled by a different facility, perhaps without ISC. What matters is that it was in fact provided through the facility in question ."
"[Since deregulation] CPs receiving ported calls no longer need to purchase inter-switch conveyance from BT in order to serve their customers who have ported from BT (with the advent of the DLE Handover product in 2010). "
" Over the long run, the extent to which the RCP takes inter-switch conveyance (whether LTC or ITC) from the DCP or inter-switch transit from another CP (whether ITC or ITT) is a choice of the RCP, determined by how it builds out its network and locates its points of interconnection. "
" ... The RCP does not know where calls originate from, and does not receive information about, traffic delivered by different OCPs to each specific Tandem unit, which BT is now conveying via another Tandem to get to the RCP. The RCP, therefore, has no data on which to make a properly informed choice to connect to that node and amend its routing to use that connection. In addition, the RCP cannot derive this information itself, because the signalling of the call tells it only the destination number (from which it can derive the Donor DLE, but nothing else) and the Calling Line Identity ("
" VICs were introduced by BT under the 21CN initiative between 2006-2008, when BT planned to replace its TDM network with IP technology (this migration was subsequently abandoned). In order to ease the migration, BT wanted CPs to connect to fewer of its nodes and therefore launched the VIC capability to help facilitate this. Under VIC, calls are routed over connections to and from the Tandem layer. However, the CP purchases VICs to the relevant DLE and is charged as if calls had been connected there. Therefore, calls are physically routed via the Tandem layer, but for charging purposes (both pence-per-minute conveyance and interconnect transmission capacity rental) are treated as being connected at the DLE. Where historic physical DLE connections exist, if the capacity is subsequently augmented [it is possible to add] the capacity as VIC, which de facto converts the whole connection to being on a VIC basis [...]. On this basis I believe that a significant proportion of total DLE connectivity uses VICs. "
"Constraining DLE routing for ported traffic to dedicated physical routes means that, despite Vodafone having paid for 600+ connections to DLEs, Vodafone would need to deploy parallel routes for ported traffic and any capacity deployed would need to be justified solely on the basis of expected ported traffic from that DLE. Given that BT's network comprises over 600 DLEs and the smallest route available is 60 parallel voice channels, this constraint on the DLE handover product renders the use of [the DLE Handover product] uneconomic; the volume of traffic on such a dedicated link would be unlikely to justify the cost. [...] From Vodafone's perspective, the significant shortcomings of the DLE handover product precluded Vodafone from purchasing the product, rather than a lack of any desire to route ported calls directly from DLEs. In addition, our decision was certainly not influenced by '... speculation that [APCC] prices could be regulated down to an extremely low 'pure' LRIC cost' as suggested by [Mr] Morden. " (Emphasis in the original.)
"[I] nterworking is undesirable for the OCP and RCP because it can affect call quality [...] and because it increases the likelihood of a loss of signalling transparency, resulting in a loss of functionality or in the worst case, call failures. Therefore, operators with an IP network have a strong preference that calls operate on an end-to-end IP basis, which allows the IP signalling to be maintained, preserving functionality [...] . Direct routing allows such an end-to-end IP call path. In addition, the interworking also imposes a material cost penalty. The OCP is forced to provide gateway facilities to hand the call over as TDM to BT and the RCP is forced to provide gateway facilities to receive the call as TDM from BT (provided the RCP operates an IP network). Neither is necessary if calls are direct routed. [...]"
" Commercially it didn't work for multiple reasons. We would have required investment into our legacy TDM network which our technology department weren't willing to invest in. We didn't have sufficient data to analyse our DLE routes at that time. We would have required investment in our billing systems, which again wasn't viable at the time, and further to that, the deal what we were trying to construct didn't have the revenue and the margin thresholds which we required internally to be able to productise such a product. "
" Charges for inter-switch conveyance were in fact cost oriented, as Ofcom had at all times accepted up to the publication of the Guidance. Ofcom had no lawful basis to purport to use its regulatory powers to amend the effect of GC18.5(a) to have a more restrictive effect on BT's freedom to provide those services by excluding the ability of BT to recover common costs. There is already effective competition in all retail markets for telephone services, and there is also effective competition for the supply of the services used for inter-switch conveyance. There is no evidence that consumers are deterred from making use of number portability services. There was no necessity for further regulatory intervention, and the effect of Ofcom's decision was disproportionate and unlawful."
"33. At the outset, it should be noted that Article 30(2) of the Universal Service Directive requires the national regulatory authorities to ensure that the operators set the prices on the basis of their costs and, furthermore, that the prices do not dissuade consumers. 34. Once it is established that prices are fixed on the basis of costs, that provision confers a certain discretion on the national authorities to assess the situation and define the method which appears to them to be the most suitable to make portability fully effective, in a manner which ensures that customers are not dissuaded from making use of that facility. 35 Clearly the limits of that discretion have not been exceeded in the present case by the national regulatory authorities. A method consisting in defining a maximum price, such as that chosen by the Belgian authorities, may be considered compatible with Article 30(2) of the Universal Service Directive, provided that it is genuinely possible for new operators to contest the application of maximum prices by operators already present in the market by showing that those prices are too high in relation to their cost structure."
" the whole scheme of the Directives is to leave the arrangements for interconnection to the parties unless there are grounds for regulatory intervention. The permissible grounds of regulatory intervention in the case of a CP without significant market power are that the interconnection terms have been framed or are operating in a manner which is inconsistent with end to end connectivity or conflicts with the Article 8 objectives. "
"... the sole basis on which Ofcom rejected the new charges was that the welfare test having been inconclusive, it had not been demonstrated that BT's new schedule of charges would produce consumer benefits. In my opinion this was wrong in principle for substantially the reasons given by the CAT.
" ... the European Court of Justice held that, subject to the requirement of cost orientation, Article 30(2) USD confers a discretion on national regulatory authorities to define the methodology which appears to them to be the most suitable to make portability fully effective, in a manner that ensures that consumers are not dissuaded from making use of that facility. "
"[...] ' whilst Ofcom's dispute resolution powers were recently considered in the [08 case] it did not believe that the conclusions in the Supreme Court Judgment are materially relevant to this case' on the basis that 'the Supreme Court Judgment related to a largely unregulated product ... whereas this case concerns a specific breach of GC 18 and Ofcom guidance pursuant to it'. [Gamma] nevertheless put forward arguments to the effect that the objectives in Article 8 of the Framework Directive would be met by Ofcom accepting the dispute and finding in Gamma's favour."
"conveyance charges were 'competitive' and as a result contractual arrangements relating to those charges should prevail and that Ofcom should not interfere 'unless there is clear evidence that the Article 8 objectives of the Framework Directive are negatively affected.' BT noted that commercial rates for conveyance services had been agreed with both Gamma and Vodafone. "
" National Regulatory Authorities shall ensure that pricing between operators and/or service providers related to the provision of number portability is cost oriented, and that direct charges to subscribers, if any, do not act as a disincentive for subscribers against changing service provider. "
" Further and in any event, GC18.5 (a) provided for an exception allowing BT to agree another basis for the charges, which BT had done, with the result that the cost orientation obligation did not apply. Ofcom erred in law in concluding otherwise. "
" Alternatively, even if it is in principle open to Ofcom to change the relevant cost standard from LRIC+ to LRIC (which it is not), Ofcom is wrong to decide to do so, as LRIC+ is the clearly more appropriate cost standard to apply to the inter-switch conveyance element of the APCC. On a proper analysis, the cost recovery principles relied upon by Ofcom (of cost causation, cost minimisation and effective competition) offer no material support for Ofcom's conclusion that LRIC is to be preferred over the LRIC+ rate. Ofcom's decision is harmful to the interests of competition, efficiency and innovation, and is further inconsistent with Ofcom's treatment of the equivalent services used in mobile number portability and direct routing. It is further based on erroneous and inadequate reasoning. The change in cost standard is unnecessary and disproportionate. "
" Therefore, in summary, if a LRIC-plus cost orientation standard were adopted, then we would expect this to allow commercial determined pricing provided there is a reasonable degree of competition and no need to regulate within conveyance markets. However, a pure LRIC standard would most probably not permit commercially determined pricing, in that even with effective competition some mark-up over pure LRIC can be expected. "
" Retail competitive effects: It is common ground that retail competitive effects need to be considered. Ofcom's Defence and Mr Godfrey's report assert that there are significant competitive benefits. However, this is contrary to the position that Ofcom adopted in the Determination, where retail effects are considered small because of the modest impact of changing the cost standard on CPs' prices. Moreover, neither Ofcom, in its Defence, nor Mr Godfrey are sufficiently careful to maintain the distinction between the competitive benefits of enabling porting in general (which is not in issue and which has already been achieved) and the incremental benefits to competition that might result from lowering APPCs from LRIC+ to pure LRIC. Evidence on the conduct of the retail market presented in Ofcom's Communications Market Reviews is not supportive of Mr Godfrey's arguments as retail competition is already effective, limiting the scope for further improvement. Distortion of transit and conveyance markets: Neither Ofcom's Defence nor Mr Godfrey's report significantly engage with the problem of distortions that could arise if porting conveyance are constrained to a price below that of broadly comparable general transit and conveyance services. My first report discussed the possibility of creating incentives for porting traffic being segregated to enjoy the benefits of a lower regulated price and knock-on effects dampening incentives for deeper interconnection with BT and migration from TDM to IP-based networks. Incentives for direct routing: In both the Determination and the Guidance, Ofcom largely dismiss the question of incentives to migrate to direct routing, largely assuming that APCCs at LRIC would maintain sufficient incentive for migration. This is intertwined with the issue of the incentives to migrate to IP-based networks, as this change would facilitate direct routing."
"(a) There are good reasons to minimise the costs faced by a CP when acquiring a customer who switches from and ports their number to another CP. First, lower switching costs facilitate the competitive process which benefits all customers and, second, there are wider benefits to callers, not just those that port their number; (b) Porting charges below LRIC impose a loss on the DCP (and while in general external benefits could justify pricing below LRIC, certain costs associated with porting are explicitly non-recoverable already). However, it is not necessary for porting charges to be priced above LRIC (i.e. some form of LRIC+), because common costs can be recovered on other services (retail or wholesale) and in competitive markets a losing provider would not expect to be able to earn revenues (let alone contribute to common costs) when it loses a customer; (c) In relation to the other principles of pricing and cost recovery considered relevant (i.e. cost causation and cost minimisation), LRIC was considered to perform slightly better; (d) Therefore, LRIC strikes the appropriate balance between minimising charges for porting services, yet providing the opportunity for the DCP to avoid a loss on the chargeable porting services."
" 62. In my view, the range of prices set in unregulated inter-switch conveyance markets (even if these are competitive markets for traffic in general) is likely to be wide both in theory and in practice. Even if inter-switch conveyance prices were cost oriented in a general sense, I do not think they can be presumed to be appropriately cost oriented for the regulatory aim of minimising the costs of porting and switching between CPs. "
" 67. Prices at LRIC+ can be interpreted as cost oriented if the "+" is no higher than necessary to recover total costs calculated across the relevant set of services sharing common costs. 68. However, for the reasons explained earlier, the appropriate form of cost orientation depends on the regulatory objectives in question. In the context of APCCs, I disagree with Dr Maldoom that the appropriate interpretation of cost orientation is LRIC+. I consider that LRIC represents the form of cost orientation most consistent with the regulatory aim underpinning the regulation of porting charges, including APCCs. "
"Impact of wholesale charges at the retail level 166. As noted above, BT and Dr Maldoom argue that Ofcom acknowledged that the change in APCCs is small in the context of retail revenues and would be anticipated to have a limited impact on consumers. Dr Maldoom makes a further argument in his discussion of retail competition impacts that the balance of traffic arguments relevant to the assessment of termination markets would be of limited practical relevance only to the extent that ported traffic is imbalanced. 167. In response to BT and Dr Maldoom, I recognise that the overall impact on retail consumer bills is likely to be limited. However, I think it is important not to lose sight of what Ofcom was showing in section 7 of the Guidance, from which the excerpts relied on by BT and Dr Maldoom are taken (e.g. Guidance paragraph 7.12). 168. Section 7 of the Guidance presents a static impact assessment and shows that even if CPs sought to rebalance any lost wholesale revenues from reduced APCCs onto retail prices, the effect was likely to be small. However, the dynamic impact of changes in APCCs is more complex and depends on the profitability of customers who port their number to different CPs; the balance of ported traffic overall for each CP; and the retail price reaction of different CPs (including how they expect rivals to respond). 169. While I accept that the overall retail pricing effects are likely to be limited, I would expect this to be driven by the tendency of rivals to BT to absorb APCCs within their margins, whereas for BT, APCCs above LRIC clearly work to its advantage in proportion to the amount of net onward routed traffic it provides to rival CPs. 170. Using information gathered in preparation of the Guidance, I show below the net position of CPs in terms of ported traffic (Figure 7). [...] 172. On the above basis, I do not think that ported traffic is balanced to the point where we might conclude that it is irrelevant to competition (or at least the relative financial position) between CPs, contrary to what I understand Dr Maldoom to be arguing at paragraph 150 of his report. 173. As explained by Ofcom in the Guidance (paragraph 4.69) porting charges work to the disadvantage of entrant CPs (since they are more likely to acquire customers that wish to port their number - as evidenced in the traffic flows presented in Figure 7). This effect is exacerbated under LRIC+ in which APCCs make a contribution to common costs."
" Direct routing between two CPs would only be efficient where the costs identified in the previous paragraph are lower than the benefits of avoiding onward routing and, hence, cost based porting charges. "
"23. It is for an appellant to establish that Ofcom's decision was wrong on one or more of the grounds specified in s.192(6) of the 2003 Act: that the decision was based on an error of fact, or law, or both, or an erroneous exercise of discretion. It is for the appellant to marshal and adduce all the evidence and material on which it relies to show that Ofcom's original decision was wrong. Where, as in this case, the appellant contends that Ofcom ought to have adopted an alternative price control measure, then it is for that appellant to deploy all the evidence and material it considers will support that alternative. 24. The appeal is against the decision, not the reasons for the decision. It is not enough to identify some error in reasoning; the appeal can only succeed if the decision cannot stand in the light of that error. If it is to succeed, the appellant must vault two hurdles: first, it must demonstrate that the facts, reasoning or value judgments on which the ultimate decision is based are wrong, and second, it must show that its proposed alternative price control measure should be adopted by the Commwasion. If the Commission (or Tribunal in a matter unrelated to price control) concludes that the original decision can be supported on a basis other than that on which Ofcom relied, then the appellant will not have shown that the original decision is wrong and will fail. 25. Usually an appellant will succeed by demonstrating the flaws in the original decision and the merits of an alternative solution. But that is not necessarily so. I would not rule out the possibility that there could be a case where an appellant succeeds in so undermining the foundations of a decision that it cannot stand, without establishing what the alternative should be. In such a case, if there is no other basis for maintaining the decision, the Commission or Tribunal would be at liberty to conclude that the original decision was wrong but that it could not say what decision should be substituted. The Tribunal would then be required to allow the appeal under s.195(2) and direct Ofcom to make a fresh decision with such directions as the Tribunal thinks are necessary to reach a properly informed conclusion. The Tribunal may wish to specify the steps to be taken by Ofcom to make good any deficit in evidence and material so as to reach a fresh decision, or leave it to Ofcom to act as it sees fit in the light of the Commission's conclusion. 26. I would expect such an outcome to be rare [...] "
"(b) "interconnection" means the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking. Services may be provided by the parties involved or other parties who have access to the network. Interconnection is a specific type of access implemented between public network operators." [6] Mr Morden, Day 2/ p109. [7] In order to collect a call at the DLE layer, the RCP must use BT's 'DLE Handover Product'. [8] Previously, the Tandem would send the ported call to the host DLE which would recognise the number was ported and send it back to the Tandem (a practice known as "tromboning"). Sometimes, for technical reasons tromboning still occasionally occurs today, but this does not give rise to any additional charges to CPs. [9] An "on-net" originated ported call would occur where a BT customer calls a number that was originally allocated to BT, but has since been ported to another CP's (the RCP's) network. [10] Calculations based on data supplied to Ofcom by BT relating to November 2014, set out in Exhibit SP-1. [11] Oftel, Determination of fixed portability costs and charges and statutory consultation on proposed modifications to BT's Licence to give effect to charge controls for portability,31 May 2002 . [12] Ibid. [13] In June 2011. [14] It was already possible for CPs to deliver calls direct to BT's DLE, but until the development of DLE Handover it was not possible to collect such calls from BT's DLEs. [15] Opal was subsequently acquired by TalkTalk. [16] Ofcom, Statement, Determination to resolve Dispute between Opal Telecom and BT about BT's Average Porting Conveyance Charge,26 March 2010 , paragraph 1.30. [17] Ofcom, Review of the fixed narrowband services wholesale market, Statement on the markets, market power determinations and remedies including further consultation,15 September 2009 . [18] Ofcom, Review of fixed narrowband services markets,26 September 2013 , paragraph 8.140. [19] Some increases in rates were also implemented with effect from1 March 2015 on account of the use of revised traffic data. [20] See paragraph 4 above. [21] R v Secretary of State for Trade and Industry ex p Greenpeace Ltd [1988] Env LR 415. [22] See also BT's closing submissions at Day 6/p50. [23] Set out at paragraph 17 above. [24] Day 6/p64. [25] Day 1/pp59-60. [26] Day 6/pp 50-51. [27] Day 1/pp62-63. [28] Morden 2, §14. [29] Day 2/ pp74-75. [30] Day 2/ pp128-129. [31] Day 2/ pp77-78. [32] Day 2/ pp35-36. [33] Day 2/ p126. [34] Morden 2, § 54. [35] Day 2/ pp67-68. [36] Day 2/ pp67-70. [37] Day 2/ pp42-43. [38] Day 2/ pp97-99. [39] Day 2/ p106. [40] Day 3/ p30. [41] Mr Perry also stated that a restriction on the use of Virtual Interconnection Circuits would mean that certain CPs would need to route ported traffic differently to non ported traffic. See discussion of this point in Mr Rosbotham's evidence at Section G(6)(c) at page 72 below. [42] Day 3/ pp22-28. [43] See Ofcom's opening submission Day 1 / p88: " the effect of those restrictions is to raise rivals' costs by requiring a specific transmission link [for] ported traffic "