Expert legal insight into Ofcom’s market review and significant market power regime

When Ofcom designates a provider with Significant Market Power (SMP), it imposes remedies that constrain how that provider deals with competitors and access seekers. If you buy wholesale services from an SMP-designated operator, those remedies determine what you can demand, what price you should pay, and what conduct you can challenge. SMP designation is the telecoms equivalent of dominance in competition law. The remedies exist to protect you. The question is whether they are being applied properly.

Trigger situation

You buy wholesale access, leased lines or interconnection from an SMP-designated operator and the terms are unreasonable or discriminatory. The SMP operator offers selective discounts to some access seekers but not others, or bundles services in ways that circumvent non-discrimination obligations. You suspect the SMP operator is pricing below cost or cross-subsidising retail services with wholesale revenue. You are negotiating a new access agreement and need to understand what the SMP remedies require the operator to offer. You want to complain to Ofcom about an SMP operator’s conduct or bring a competition law claim based on abuse of dominance. You are entering a market and need to understand what wholesale access you can obtain and on what terms. An Ofcom market review is underway and you want to influence the remedies imposed on the SMP operator.

Why it matters now

Ofcom conducts multiple market reviews on different cycles. The Telecoms Access Review 2026-31 (TAR), published in March 2026, sets the framework for wholesale local access, leased lines and physical infrastructure for five years. But the TAR is not the only review that matters. Ofcom reviews call termination markets separately, setting regulated charge controls for fixed and mobile termination rates. It reviews business connectivity markets, mobile access markets, and wholesale voice markets. Each review operates on its own timetable and produces its own SMP designations and remedies. Businesses that track only the TAR miss designations and remedy changes in other markets that affect them directly.

The TAR 2026-31 includes material changes from the previous review period: tighter obligations on fibre access, new requirements around copper decommissioning, and revised pricing methodologies for wholesale local access. For access seekers, these changes affect the terms on which you can obtain wholesale services for the next five years. But stability does not mean stasis. Ofcom can modify remedies within a review period in response to competition concerns. If an SMP operator changes its behaviour, Ofcom can intervene.

SMP designation is the telecoms-specific equivalent of dominance under competition law. An SMP operator that discriminates, refuses access without justification, or prices in ways that squeeze competitors’ margins may be in breach of both its SMP obligations and the Chapter II prohibition under the Competition Act 1998. This dual enforcement route gives access seekers options: complain to Ofcom under the SMP regime, or pursue a competition law claim (or both). Understanding when to use which route is critical.

Where clients get it wrong

The most common error is to accept the SMP operator’s commercial terms without checking what the remedies actually require. SMP remedies are detailed and prescriptive. They specify what the operator must offer, at what price, on what terms, and with what transparency. An SMP operator’s standard offer may not reflect the full scope of what the remedies require it to provide. Access seekers that negotiate without understanding the remedies negotiate from a weaker position than they need to.

The second error is to fail to challenge discriminatory conduct. SMP operators are subject to non-discrimination obligations: they must offer the same terms to all access seekers and must not favour their own retail arm over competitors. In practice, SMP operators find ways to circumvent these obligations. Selective discounts offered to some access seekers but not others. Volume commitments that only the largest competitors can meet. Technical requirements that favour the operator’s own systems. Bundled pricing that makes it difficult to compare wholesale and retail terms. Each of these may breach the non-discrimination obligation, but access seekers that do not challenge them effectively allow the breach to continue.

The third error is to treat pricing disputes as commercial negotiations rather than regulatory matters. When an SMP operator is subject to cost-based pricing, the price is not a matter for negotiation. It is set by the remedy. If the operator charges more than the regulated price, it is in breach. If the operator structures charges in a way that inflates the effective price (through connection fees, minimum commitments, or ancillary charges), the access seeker can challenge this with Ofcom. Treating the price as negotiable when it is regulated weakens the access seeker’s position.

The fourth error is to confuse the scope of an SMP obligation with a General Conditions obligation. An SMP obligation applies only to the designated provider in the relevant market. A General Condition obligation may apply more broadly. The two regimes interact but are distinct. An access seeker relying on the wrong legal basis for a complaint to Ofcom will find the complaint dismissed on jurisdictional grounds.

The fifth error is to wait too long before complaining to Ofcom. SMP operators’ commercial behaviour tends to entrench over time. An operator that introduces discriminatory terms will embed those terms in contracts, systems, and pricing structures. The longer the access seeker tolerates the conduct, the harder it is to unwind. Early engagement with Ofcom, even at the informal stage, is more effective than delayed formal complaints.

The Advisor’s Perspective

SMP regulation exists to protect access seekers. The remedies are designed to ensure that operators with market power cannot exploit that position. But remedies only work if access seekers enforce them. In my experience, the access seekers that get the best outcomes are those that understand what the remedies require, monitor the SMP operator’s compliance, and are willing to escalate to Ofcom when compliance falls short.

The interface between SMP regulation and competition law is where matters become most commercially consequential. SMP designation maps closely to dominance. Conduct that breaches an SMP non-discrimination obligation will often also constitute an abuse of a dominant position under the Competition Act 1998. This gives access seekers a choice of enforcement route and, in some cases, the ability to claim damages. The difference between a well-prepared complaint and a poorly prepared one can translate into material commercial impact over a five-year review period.

What good looks like

Bratby Law advises access seekers on their rights under SMP remedies. We start by identifying which SMP designations affect your market: wholesale local access, leased lines, call termination, business connectivity, or others. We then analyse the specific remedies that apply to the operator you are buying from. For each remedy, we explain what the operator must offer, what price it must charge, and what non-discrimination obligations it must meet.

We review the terms the SMP operator is offering you and compare them against what the remedies require. Where the operator’s terms fall short, we advise on how to challenge them. This may involve direct negotiation (supported by a clear statement of what the remedies require), informal engagement with Ofcom, or a formal complaint. We advise on which route is most effective in each case.

Where the SMP operator’s conduct raises competition law concerns, we advise on whether a complaint to the CMA or a damages claim is appropriate. We assess whether the conduct constitutes an abuse of dominance (margin squeeze, discriminatory pricing, constructive refusal to supply) and advise on the evidential requirements for each route.

If an Ofcom market review is underway, we help you make submissions that influence the remedies imposed on the SMP operator. Market reviews are the moment when access seekers can shape the regulatory framework for the next five years. A well-prepared submission, supported by economic evidence and market data, can influence Ofcom’s final decision on remedies. We prepare these submissions and support discussions with Ofcom during the review.

For investors and acquirers, we model the impact of SMP remedies on the target business. If you are acquiring an operator that depends on wholesale access from an SMP provider, the terms of that access are a material commercial factor. We assess the stability of the regulatory framework and the risk that remedies might change during the investment period.

When to instruct

An access seeker that is satisfied with the terms it receives from an SMP operator and faces no pricing or discrimination issues does not need specialist input. But specialist advice is valuable in several contexts: (1) you are negotiating access terms with an SMP operator and want to understand what the remedies require; (2) you believe the SMP operator is discriminating against you or circumventing non-discrimination obligations; (3) you are paying more than you believe the regulated price should be, or the operator is inflating the effective price through ancillary charges; (4) you want to complain to Ofcom about an SMP operator’s conduct; (5) you are considering a competition law claim based on the SMP operator’s behaviour; (6) an Ofcom market review is underway and you want to influence the outcome; (7) you are acquiring or investing in a business that depends on wholesale access from an SMP provider.

How Bratby Law helps

We advise access seekers on the SMP remedies applicable to the operators they buy from. We review and challenge the terms offered by SMP operators against what the remedies require. We identify breaches of non-discrimination obligations and advise on enforcement options. We support pricing disputes where the SMP operator charges above the regulated price or inflates costs through ancillary charges. We prepare and file complaints to Ofcom about SMP operators’ conduct. We advise on competition law claims where SMP conduct constitutes abuse of dominance. We prepare submissions to Ofcom market review consultations to influence the remedies imposed. We model the commercial impact of SMP remedies for investment and transaction due diligence. We advise on SMP compliance obligations for operators that are themselves designated with SMP.

FAQs

We buy wholesale broadband access from an SMP-designated operator. What are we entitled to?

The SMP remedies require the operator to provide you with access on fair, reasonable and non-discriminatory terms. The operator must publish a reference offer setting out what it will provide and at what price. It must not charge more than the regulated price (typically cost-based). It must not discriminate between different access seekers or favour its own retail arm over competitors. It must provide access within specified timescales. If the operator’s terms do not meet these requirements, you can challenge them with Ofcom. You should review the reference offer and compare it against the specific remedies in the relevant market review (for wholesale broadband access, the TAR 2026-31).

The SMP operator is offering volume discounts to our larger competitor but not to us. Is this lawful?

It may not be. SMP operators are subject to non-discrimination obligations. Offering volume discounts to some access seekers but not others may breach those obligations, particularly where the discount structure is designed so that only one or two competitors can qualify. The test is whether the terms are objectively justified. If the discount reflects genuine cost savings from volume, it may be defensible. If it is structured to favour particular competitors or to exclude smaller access seekers, it is likely discriminatory. You should seek advice on whether the discount structure breaches the non-discrimination remedy and consider raising the issue with Ofcom.

Can we bring a competition law claim as well as an Ofcom complaint?

Yes. SMP designation maps closely to dominance under competition law. Conduct that breaches an SMP non-discrimination or pricing obligation will often also constitute an abuse of a dominant position under the Chapter II prohibition of the Competition Act 1998. You can complain to Ofcom (which has concurrent competition powers in telecoms) or to the CMA. You can also bring a private damages claim in the Competition Appeal Tribunal. The choice of route depends on what outcome you want: Ofcom can impose remedies and penalties; a damages claim can recover your financial losses. In some cases, pursuing both routes in parallel is appropriate.

An Ofcom market review is starting. How can we influence the outcome?

Market reviews are the moment when Ofcom decides which operators have SMP and what remedies to impose. As an access seeker, you can make submissions to the consultation setting out your experience of the market, the access terms you face, and what remedies you need. Ofcom takes seriously submissions that engage with its methodology and are supported by market evidence. If you have concerns about access terms or the risk of access being withdrawn, the market review is the time to raise them. We can help you prepare a submission that influences Ofcom’s final decision on remedies.

We suspect the SMP operator is engaging in a margin squeeze. What can we do?

A margin squeeze occurs when an SMP operator sets wholesale access prices and retail prices such that an efficient competitor cannot profitably compete at the retail level. This is both a potential breach of SMP obligations and an abuse of dominance under competition law. You should gather evidence of the wholesale price you pay, the retail prices the operator charges to end customers, and the costs an efficient competitor would incur. If the margin between wholesale and retail is insufficient to cover those costs, a margin squeeze may exist. You can complain to Ofcom, to the CMA, or bring a damages claim. Margin squeeze cases are fact-intensive and require economic analysis, but they can result in material remedies and damages awards.

Representative experience

Recent and representative matters include:

• Advised a national operator on its response to Ofcom’s Wholesale Fixed Telecoms Market Review, including submissions on geographic market definition and proposed access remedies.
• Supported a challenger fibre provider in negotiating regulated wholesale access terms with the incumbent SMP operator, including pricing disputes under the charge control framework.
• Prepared a consultation response on behalf of a wholesale customer challenging Ofcom’s proposed SMP remedies in the business connectivity market.
• Advised on the regulatory due diligence aspects of an acquisition where the target held SMP-regulated wholesale assets, assessing the impact of existing and forthcoming market review obligations.
• Supported an operator through a Competition Appeal Tribunal challenge to an Ofcom SMP determination, coordinating with economic experts on market definition evidence.

Related telecoms regulation pages

See also our other telecoms regulation pages:

• Interconnection regulation
• Ofcom General conditions of entitlement
• Numbering
• Spectrum
• Lawful intercept and the Investigatory Powers Act 2016
• Ofcom Licence Fees
• Code Powers and access to land
• Am I regulated?
• Telecoms Security
• Ofcom
• Complaints and investigations
• Connected Vehicles and IoT Regulation

See more

• Why Bratby Law? UK Telecoms Lawyers and AI Lawyers for Regulated Markets
• Services
• Transactions
• Co-counsel
• Fractional General Counsel

Frequently asked questions

What is SMP regulation?

SMP regulation is Ofcom’s ex-ante framework for assessing competition in wholesale telecoms markets, determining significant market power and imposing targeted obligations on SMP providers.

How does Ofcom decide if a provider has SMP?

Ofcom assesses market shares, barriers to entry, buyer power, competitive constraints and access to essential facilities, applying competition-law principles

What remedies can Ofcom impose for SMP?

Remedies include access obligations, non-discrimination, transparency, price controls, accounting separation, quality-of-service standards and, in rare cases, functional separation.

How often does Ofcom carry out market reviews?

Typically every five years, though reviews may be conducted earlier if market conditions materially change.

Can Ofcom’s SMP decisions be appealed?

Yes. Appeals may be brought to the Competition Appeal Tribunal under CA 2003 s 192, normally on judicial review grounds.

Independent directory rankings

Our specialist expertise is recognised in major independent legal directories:

• Chambers & Partners: Rob Bratby is ranked as a band 2 lawyer in the UK Guide 2026 in the “Telecommunications” category: Chambers
• The Legal 500: Rob Bratby is listed as a “Leading Partner – Telecoms” in London (TMT – IT & Telecoms): The Legal 500
• Lexology: Rob Bratby is featured on Lexology’s expert profiles as a Global Elite Thought Leader for data: Lexology