This Transcript has not been proof read or corrected. It is a working tool for the Tribunal for use in preparing its judgment. It will be placed on the Tribunal Website for readers to see how matters were conducted at the public hearing of these proceedings and is not to be relied on or cited in the context of any other proceedings. The Tribunal’s judgment in this matter will be the final and definitive record. IN THE COMPETITION Case Nos 1094/3/3/08 APPEAL TRIBUNAL Victoria House Bloomsbury Place London WC1A.2EB 19th June 2008 Before: LORD CARLILE QC (Chairman) DR ARTHUR PRYOR PROFESSOR PAUL STONEMAN BETWEEN: VODAFONE LIMITED (Vodafone) Applicant and OFFICE OF COMMUNICATIONS (“OFCOM”) Respondent With Interveners: BRITISH TELECOMMUNICATIONS PLC TELEFONICA O2 UK LIMITED HUTCHISON 3G UK LIMITED ORANGE PERSONAL COMMUNICATIONS SERVICES LIMITED T-MOBILE UK LIMITED _________ Transcribed from tape by Beverley F. Nunnery & Co. Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: 020 7831 5627 Fax: 020 7831 7737 _________ HEARING DAY TWO APPEARANCES Mr. Tim Ward (instructed by Herbert Smith) appeared on behalf of Vodafone. Mr. Pushpinder Saini QC and Mr. Alan Bates (instructed by the Office of Communications) appeared for the Respondent. Mr. Aidan Robertson (instructed by BT Legal) appeared on behalf of the Intervener British Telecommunications PLC Miss Kelyn Bacon (instructed by Miss Aoife Power, Senior Competition Counsel, Telefónica Europe plc) appeared on behalf of the Intervener Telefónica 02 UK Limited. Miss Dinah Rose QC and Mr. Brian Kennelly (instructed by Baker & McKenzie) appeared on behalf of the Intervener Hutchison 3G. Miss Marie Demetriou and Miss Sarah Love (instructed by Field Fisher Waterhouse) appeared on behalf of the Intervener Orange. Mr. Meredith Pickford (instructed by Miss Robyn Durie, Regulatory Counsel, T-Mobile) appeared on behalf of the Intervener T. Mobile. _________ 1 THE CHAIRMAN: Good morning. 2 Mr. TIMOTHY PETER SUTHERNS, recalled 3 Cross-examined by Miss ROSE (continued) 4 Q Mr. Sutherns, can you just take up your witness statement in Volume 2, behind Tab B and 5 behind Tab D, and turn to para. 33? You say, 6 “The change to recipient-led porting is a major change of the existing IT systems 7 in Retail and Provisioning and creates a host of new challenges, that have not even 8 been considered by Ofcom in the preparatory work, and have still not been 9 determined”. 10 A. That’s correct. 11 Q Now, the reality is that recipient-led porting is universal internationally, is it not? A. I 12 can only answer for UK porting and our part of it. I’m not familiar with other nations’ 13 porting processes. 14 Q Are you aware that the only other country in the world that has donor-led porting is the 15 Dominican Republic? A. As I said, I’m not aware of any other nations’ porting 16 processes. 17 Q So, to say that recipient-led porting gives rise to a host of new challenges have not even 18 been considered is perhaps a little bold, is it not? A. No, not at all. These discussions are 19 going on in UK porting as we speak. Some of the discussions are absolutely basic. The 20 simple matter of when somebody walks into a Vodafone shop and says they wishes to port 21 their number to us -- Who do we actually authenticate against? Do we authenticate against 22 the network or against the MVNO providing the service? How do we know? Is that in the 23 CDB or is it in some intelligent hub? 24 Q These are challenges that every other country in the world has grappled with and managed 25 to cope with. A. Yes, and it needs to be delivered and alive by the end of December. 26 Q Vodafone, of course, are active in the Irish market, are they not? A. Vodafone (Ireland) 27 are active. 28 Q Yes, which is one of your group companies. A. Yes. 29 Q Where they have recipient-led porting. A. As I say, I work for Vodafone UK and I’m not 30 familiar with other nations’ porting processes. 31 Q O2 are also active in the Irish market. Are you aware of that A. No. 32 Q And H3G? A. Okay. Fine. 33 Q So, three of the five MNOs are active in that market. A. Okay. Does that solve the 34 problem of how MVNOs are going to be addressed by this intelligent hub, if there is one? 1 1 Q Finally, you have made points about the functional specification, complaining that Ofcom 2 did not give you a detailed technical specification. It is not the job of the regulator, is it, to 3 tell industry participants how technically to specify their solutions, is it? A. I don’t object 4 to whether Ofcom should write the specification or whether NICC should, or whether UK 5 porting should - just that right now there is no such specification and the costings are 6 necessarily very vague as a result. 7 Q That is normal, is it not - that what a regulator does is to provide a functional specification, 8 saying, “We want you to achieve X, Y, and Z. You go off and work out the most efficient 9 way of doing it”. A. Indeed. For a major development at this stage, for a core part of the 10 UK infrastructure - a telephone system - one would expect sufficient time to be allowed to 11 do this in a safe and robust manner. 12 Q I have no further questions. 13 THE CHAIRMAN: Thank you very much, Miss Rose. 14 MR. WARD: I have no re-examination, sir. 15 (The witness withdrew) 16 MR. SAINI: Sir, may I just a raise the matter of the running order for today. Mr. Roche, I believe 17 is going to be the next witness. What I have suggested to my learned friends - and most of 18 them, responded positively - was that the other witnesses - and I think there are only going 19 to be two further witnesses (Mr. Wardle from O2 and Mr. Baxter from H3G) come 20 immediately after Mr. Roche so that we get rid of the witnesses effectively in a relatively 21 short time. Then I can have a free run at my submissions rather than interrupting them. 22 THE CHAIRMAN: Any contrary views? 23 MR. WARD: We have no contrary views about the running order. We are a bit surprised by the 24 suggestion that Ofcom is going to cross-examine Mr. Baxter, who, on the face of it, 25 supports their case. I can make more submissions about that later, if that is convenient. 26 THE CHAIRMAN: Why do we not leave that until it arises. We will take the witnesses as a 27 package. That sounds like a very sensible suggestion. 28 Mr. HOWARD BARTHOLOMEW ROCHE, Sworn 29 Examined by Mr. WARD 30 Q Mr. Roche, could you state your full name and address? A. Howard Bartholomew 31 Roche, Vodafone House, The Connection, Newbury, Berkshire. 32 Q Thank you. Have you made two witness statements in these proceedings? A. Yes. 33 Q Can I ask you firstly to turn to bundle 1, tab 2? A. Yes. 34 Q Is that your witness statement? A. Yes. 2 1 Q Are its contents true to the best of your knowledge and belief? A. Yes. 2 Q Can I also ask you to turn to bundle 2, tab C B, is that your second witness statement? A. 3 Yes. 4 Q Are its contents true to the best of your knowledge and belief? A. Yes. 5 Q I want to ask you just one question by way of reply to a point that is made by Ofcom in its 6 skeleton argument for the first time. Can I ask you to turn that up, please, which is in 7 bundle 3. At page 11, para.11 – “The case put forward by Vodafone and its supporters, the 8 last paragraph at (b): 9 “As noted in paragraph 4 of the Defence, and explained in some depth by H3G … 10 the benefits of moving to such a solution have been under discussion between the 11 mobile operators over a number of years, with H3G (a net payer of donor 12 conveyance charges) pressing for such a solution to be adopted while the more 13 established MNOs have appeared reluctant.” 14 Is Vodafone a net beneficiary of donor conveyance charges. 15 MR. WARD: Thank you. I have no more questions. 16 Cross-examined by Mr. SAINI 17 Q Mr. Roche, you will be pleased to hear I have very few questions for you. Can I ask you 18 first of all some questions in relation to a schedule which your Vodafone solicitors, Herbert 19 Smith prepared very helpfully for us on Monday, and if I can provide copies to the Tribunal 20 first and then a copy to you. (Document handed to Tribunal and witness) This is a 21 confidential document so I will try not to breach that confidence by reading out any specific 22 figures, but I just want to understand ---- 23 MR. WARD: Sir, could I just make a point about the confidentiality? 24 THE CHAIRMAN: Yes. 25 MR. WARD: We simply ask that this document remain within the existing confidentiality ring. 26 THE CHAIRMAN: Thank you. 27 MR. SAINI: First of all I think it is common ground that we need to make a correction to this 28 document, in the top left hand corner there is a description there that says Ofcom, question 29 1, 16 June total number of minutes of call traffic, I think we need to delete the words “to 30 ported numbers”? A.