CAT Refuse BT Permission to Extend Appeal Deadline vs GBP95m Ofcom Fine

The Competition Appeal Tribunal (CAT) has refused BT permission to extend the deadline for appealing against Ofcom’s final determination on its wholesale Ethernet charges. The regulator last year fined the telco £94,823,000 after it was found to have overcharged several broadband ISPs in the United Kingdom.

BT claimed in December 2012 that there was “no evidence of economic harm to support Ofcom’s findings” (here) and that, without an extension, a notice of appeal must be lodged by 5pm on 21st February 2013. Crucially the operator noted that Ofcom was “unlikely to publish its PPC Determinations before the first week of February 2013” and thus it wouldn’t have much time to prepare.

But Rule 8(2) of the tribunal requires that BT may not extend that time limit “unless [CAT] is satisfied that the circumstances are exceptional“. Never the less BT felt that an extension of two weeks until 7th March 2013 to file its appeal would be justified, although the tribunal has now ruled against this.

Mr Justice Barling said:

“In my view the factors relied upon by BT, whether individually or in combination, do not amount to exceptional circumstances for the purposes of rule 8(2) of the Rules, so as to justify an extension of the deadline by which BT should lodge an appeal in relation to the Ethernet Determinations.

…

The Ethernet Determinations are not exceptional, nor are the particular challenges faced by BT in preparing its appeal. Further, the PPC Judgment was published on 27 July 2012, such that BT has had time to consider its legal and factual implications.”

The tribunal maintains that respect for the time limit for commencing proceedings is a “keystone of the whole procedure” and thus should not be changed. The CAT similarly noted that “the intervention of the Christmas holiday period” was also not deemed to be an “exceptional circumstance“.

BT will now have to submit its appeal, if any, by around 21st February 2013 or give up the fight via CAT. Several ISPs including TalkTalk, Virgin Media, Sky Broadband (BSkyB), Verizon UK and Cable & Wireless (CW) all stand to benefit if the operator hands victory to Ofcom.