House of Lords portcullis
House of Lords
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

    170

 

           (c)           to give a direction imposing an obligation, enforceable by the parties to

the dispute, to enter into a transaction between themselves on the terms

and conditions fixed by OFCOM; and

           (d)           for the purpose of giving effect to a determination by OFCOM of the

proper amount of a charge in respect of which amounts have been paid

5

by one of the parties of the dispute to the other, to give a direction,

enforceable by the party to whom the sums are to be paid, requiring the

payment of sums by way of adjustment of an underpayment or

overpayment.

     (3)    Their main power in the excepted case is just to make a declaration setting out

10

the rights and obligations of the parties to the dispute.

     (4)    Nothing in this section prevents OFCOM from exercising the following powers

in consequence of their consideration under this Chapter of any dispute—

           (a)           their powers under Chapter 1 of this Part to set, modify or revoke

general conditions, universal service conditions, access related

15

conditions, privileged supplier conditions or SMP conditions;

           (b)           their powers to vary, modify or revoke wireless telegraphy licences or

grants of recognised spectrum access;

           (c)           their power to make, amend or revoke regulations under section 1 or 3

of the Wireless Telegraphy Act 1949 (c. 54).

20

     (5)    In the case of a dispute referred back to OFCOM under section 183(6)—

           (a)           OFCOM may, in making their determination, take account of decisions

already made by others in the course of an attempt to resolve the

dispute by alternative means; and

           (b)           the determination made by OFCOM may include provision ratifying

25

decisions so made.

     (6)    Where OFCOM make a determination for resolving a dispute, they may

require a party to the dispute—

           (a)           to make payments to another party to the dispute in respect of costs and

expenses incurred by that other party in consequence of the reference

30

of the dispute to OFCOM, or in connection with it; and

           (b)           to make payments to OFCOM in respect of costs and expenses incurred

by them in dealing with the dispute.

     (7)    OFCOM are not, under subsection (6)(b), to require payments to be made to

them by a party to the dispute except—

35

           (a)           in a case where the dispute relates to the rights and obligations of the

parties to the dispute under the enactments relating to the management

of the radio spectrum; or

           (b)           where it appears to OFCOM that the reference of the dispute by that

party was frivolous or vexatious or that that party has otherwise

40

abused the right of reference conferred by this Chapter.

     (8)    A determination made by OFCOM for resolving a dispute referred or referred

back to them under this Chapter binds all the parties to the dispute.

     (9)    Subsection (8) is subject to section 189.

 188   OFCOM’s power to require information in connection with dispute

45

     (1)    Where a dispute has been referred or referred back to OFCOM under this

Chapter, they may require any person to whom subsection (2) applies to

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

    171

 

     (1)    provide them with all such information as they may require for the purpose

of—

           (a)           deciding whether it is appropriate for them to handle the dispute;

           (b)           determining whether it is necessary for them to consult the regulatory

authorities of another member State; or

5

           (c)           considering the dispute and making a determination for resolving it.

     (2)    This subsection applies to—

           (a)           a party to the dispute; and

           (b)           a person who is not a party to the dispute but appears to OFCOM to

have information that is relevant to the matters mentioned in

10

subsection (1)(a) to (c).

     (3)    A person required to provide information under this section must provide it in

such manner and within such reasonable period as may be specified by

OFCOM.

     (4)    In fixing the period within which information is to be provided in accordance

15

with a requirement under this section OFCOM must have regard, in particular,

to— 

           (a)           their obligation to make a determination for resolving the dispute

within the period specified in section 185;

           (b)           the nature of the dispute; and

20

           (c)           the information that is required.

     (5)    Sections 135 to 141 apply for the enforcement of a requirement under this

section as they apply for the enforcement of requirements under section 132 or

133.

     (6)    In its application for the enforcement of this section, section 135 is to have effect

25

as if it allowed OFCOM to specify such period of less than one month for doing

the things mentioned in subsection (3) of that section as they consider

appropriate for the purpose of enabling them to comply with an obligation of

theirs to make a determination within a particular period.

Appeals

30

 189   Appeals against decisions by OFCOM, the Secretary of State etc.

     (1)    This section applies to the following decisions—

           (a)           a decision by OFCOM under this Part, the Wireless Telegraphy Act

1949 (c. 54) or the Wireless Telegraphy Act 1998 (c. 6) that is not a

decision specified in Schedule 8;

35

           (b)           a decision (whether by OFCOM or another) to which effect is given by

a direction, approval or consent given for the purposes of a provision

of a condition set under section 42;

           (c)           a decision to which effect is given by the modification or withdrawal of

such a direction, approval or consent;

40

           (d)           a decision by the Secretary of State to which effect is given by one of the

following—

                  (i)                 a specific direction under section 5 that is not about the making

of a decision specified in Schedule 8;

                  (ii)                a restriction or condition set by regulations under section 106;

45

                  (iii)               a direction to OFCOM under section 129;

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

    172

 

                  (iv)                a specific direction under section 153 that is not about the

making of a decision specified in Schedule 8.

     (2)    A person affected by a decision to which this section applies may appeal

against it to the Tribunal.

     (3)    The means of making an appeal is by sending the Tribunal a notice of appeal

5

in accordance with Tribunal rules.

     (4)    The notice of appeal must be sent within the period specified, in relation to the

decision appealed against, in those rules.

     (5)    The notice of appeal must set out—

           (a)           the provision under which the decision appealed against was taken;

10

and

           (b)           the grounds of appeal.

     (6)    The grounds of appeal must be set out in sufficient detail to indicate—

           (a)           to what extent (if any) the appellant contends that the decision

appealed against was based on an error of fact or was wrong in law or

15

both; and

           (b)           to what extent (if any) the appellant is appealing against the exercise of

a discretion by OFCOM, by the Secretary of State or by another person.

     (7)    In this section and Schedule 8 references to a decision under an enactment—

           (a)           include references to a decision that is given effect to by the exercise or

20

performance of a power or duty conferred or imposed by or under an

enactment; but

           (b)           include references to a failure to make a decision, and to a failure to

exercise a power or to perform a duty, only where the failure

constitutes a failure to grant an application or to comply with any other

25

form of request to make the decision, to exercise the power or to

perform the duty;

            and references in the following provisions of this Chapter to a decision

appealed against are to be construed accordingly.

     (8)    For the purposes of this section and the following provisions of this Chapter a

30

decision to which effect is given by the exercise or performance of a power or

duty conferred or imposed by or under an enactment shall be treated, except

where provision is made for the making of that decision at a different time, as

made at the time when the power is exercised or the duty performed.

 190   Reference of price control matters to the Competition Commission

35

     (1)    Tribunal rules must provide in relation to appeals under section 189(2) relating

to price control that the price control matters arising in that appeal, to the

extent that they are matters of a description specified in the rules, must be

referred by the Tribunal to the Competition Commission for determination.

     (2)    Where a price control matter is referred in accordance with Tribunal rules to

40

the Competition Commission for determination, the Commission is to

determine that matter—

           (a)           in accordance with the provision made by the rules;

           (b)           in accordance with directions given to them by the Tribunal in exercise

of powers conferred by the rules; and

45

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

    173

 

           (c)           subject to the rules and any such directions, using such procedure as

the Commission consider appropriate.

     (3)    The provision that may be made by Tribunal rules about the determination of

a price control matter referred to the Competition Commission in accordance

with the rules includes provision about the period within which that matter is

5

to be determined by that Commission.

     (4)    Where the Competition Commission determines a price control matter in

accordance with Tribunal rules, they must notify the Tribunal of the

determination they have made.

     (5)    The notification must be given as soon as practicable after the making of the

10

notified determination.

     (6)    Where a price control matter arising in an appeal is required to be referred to

the Competition Commission under this section, the Tribunal, in deciding the

appeal on the merits under section 192, must decide that matter in accordance

with the determination of that Commission.

15

     (7)    Subsection (6) does not apply to the extent that the Tribunal decides, applying

the principles applicable on an application for judicial review, that the

determination of the Competition Commission is a determination that would

fall to be set aside on such an application.

     (8)    Section 117 of the Enterprise Act 2002 (c. 40) (offences of supplying false or

20

misleading information) shall have effect in relation to information supplied to

the Competition Commission in connection with their functions under this

section as it has effect in relation to information supplied to them in connection

with their functions under Part 3 of that Act.

     (9)    For the purposes of this section an appeal relates to price control if the matters

25

to which the appeal relates are or include price control matters.

     (10)   In this section “price control matter” means a matter relating to the imposition

of any form of price control by an SMP condition the setting of which is

authorised by—

           (a)           section 84(9);

30

           (b)           section 88; or

           (c)                         section 90(3).

 191   Composition of Competition Commission for price control references

     (1)    The Secretary of State must appoint not less than three members of the

Competition Commission for the purposes of references under section 190.

35

     (2)    In selecting a group to perform the Commission’s functions in relation to a

reference under section 190, the chairman of the Commission must select at

least one, and not more than three, of the members appointed under this

section to be members of the group.

 192   Decisions of the Tribunal

40

     (1)    The Tribunal shall dispose of an appeal under section 189(2) in accordance

with this section.

     (2)    The Tribunal shall decide the appeal on the merits and by reference to the

grounds of appeal set out in the notice of appeal.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

    174

 

     (3)    The Tribunal’s decision must include a decision as to what (if any) is the

appropriate action for the decision-maker to take in relation to the subject-

matter of the decision under appeal.

     (4)    The Tribunal shall then remit the decision under appeal to the decision-maker

with such directions (if any) as the Tribunal considers appropriate for giving

5

effect to its decision.

     (5)    The Tribunal must not direct the decision-maker to take any action which he

would not otherwise have power to take in relation to the decision under

appeal.

     (6)    It shall be the duty of the decision-maker to comply with every direction given

10

under subsection (4).

     (7)    In the case of an appeal against a decision given effect to by a restriction or

condition set by regulations under section 106, the Tribunal must take only

such steps for disposing of the appeal as it considers are not detrimental to

good administration.

15

     (8)    In its application to a decision of the Tribunal under this section, paragraph

1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of commercial

information from documents recording Tribunal decisions) is to have effect as

if for the reference to the undertaking to which commercial information relates

there were substituted a reference to any person to whom it relates.

20

     (9)    In this section “the decision-maker” means—

           (a)           OFCOM or the Secretary of State, according to who took the decision

appealed against; or

           (b)           in the case of an appeal against—

                  (i)                 a direction, approval or consent given by a person other than

25

OFCOM or the Secretary of State, or

                  (ii)                the modification or withdrawal by such a person of such a

direction, approval or consent,

                         that other person.

 193   Appeals from the Tribunal

30

     (1)    A decision of the Tribunal on an appeal under section 189(2) may itself be

appealed.

     (2)    An appeal under this section—

           (a)           lies to the Court of Appeal or to the Court of Session; and

           (b)           must relate only to a point of law arising from the decision of the

35

Tribunal.

     (3)    An appeal under this section may be brought by—

           (a)           a party to the proceedings before the Tribunal; or

           (b)           any other person who has a sufficient interest in the matter.

     (4)    An appeal under this section requires the permission of the Tribunal or of the

40

court to which it is to be made.

     (5)    In this section references to a decision of the Tribunal include references to a

direction given by it under section 192(4).

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2003
Revised 7 March 2003