BT ordered to repay overcharged internet providers by Court as appeal is dismissed

In 2008 Ofcom published a report in which it concluded that BT had significant market power in the alternative interface symmetric broadband origination (AISBO) market. As a result it imposed a number of conditions on BT, including condition HH3.1, which meant that BT had to satisfy Ofcom as to the reasonableness of their charges to other internet providers.

Each of the disputing internet providers lodged a complaint with Ofcom that they were overcharged, and in a determination on the 20th December 2012 Ofcom concluded that BT overcharged by £94.8 million. Ofcom ordered that this be repaid to the internet providers, but that no interest was payable on the overcharge.

BT appealed against the imposition of the duty to reimburse the internet providers, and the internet providers appealed against the failure to impose interest.

The Court maintained Ofcom’s decision ordering BT to repay the overcharge, although the amount was slightly reduced as Ofcom failed to properly take into account of BT construction costs. The Court also ordered that interest is payable on the refund, however, the type of interest payable was to be decided at a future hearing.

Rhodri Thompson QC was involved in this case.