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Communications Bill


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

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           (a)           OFCOM have decided under section 184(2) that it is appropriate for

them to handle a dispute; or

           (b)           a dispute is referred back to OFCOM under section 184(6).

     (2)    OFCOM must—

           (a)           consider the dispute; and

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           (b)           make a determination for resolving it.

     (3)    The procedure for the consideration and determination of the dispute is to be

the procedure that OFCOM consider appropriate.

     (4)    In the case of a dispute referred back to OFCOM under section 184(6), that

procedure may involve allowing the continuation of a procedure that has

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already been begun for resolving the dispute by alternative means.

     (5)    Except in exceptional circumstances and subject to section 185(3), OFCOM

must make their determination no more than four months after the following

day—

           (a)           in a case falling within subsection (1)(a), the day of the decision by

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OFCOM that it is appropriate for them to handle the dispute; and

           (b)           in a case falling within subsection (1)(b), the day on which the dispute

is referred back to them.

     (6)    Where it is practicable for OFCOM to make their determination before the end

of the four month period, they must make it as soon in that period as

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practicable.

     (7)    OFCOM must—

           (a)           send a copy of their determination, together with a full statement of

their reasons for it, to every party to the dispute; and

           (b)           publish so much of their determination as (having regard, in particular,

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to the need to preserve commercial confidentiality) they consider it

appropriate to publish.

     (8)    The publication of information under this section must be in such manner as

OFCOM consider appropriate for bringing it to the attention, to the extent that

they consider appropriate, of members of the public.

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 187   Disputes involving other member States

     (1)    This section applies where it appears to OFCOM that a dispute referred or

referred back to them under this Chapter relates partly to a matter falling

within the jurisdiction of the regulatory authorities of another member State.

     (2)    A dispute relates to matters falling within the jurisdiction of the regulatory

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authorities of another member State to the extent that—

           (a)           it relates to the carrying on of activities by one or both of the parties to

the dispute in more than one member State or to activities carried on by

different parties to the dispute in different member States; and

           (b)           the activities to which the dispute relates, so far as they are carried on

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in another member State, are carried on in the member State for which

those authorities are the regulatory authorities.

     (3)    For the purposes of subsection (2) the activities that are carried on in a member

State include anything done by means of an electronic communications

network, or part of such a network, which is situated in that member State.

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

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     (4)    Before taking any steps under this Chapter in relation to the reference or the

dispute, OFCOM must consult the other regulatory authorities within whose

jurisdiction the matter falls.

     (5)    It shall be the duty of OFCOM to secure that steps taken in relation to the

reference or dispute (whether taken by them or by the other regulatory

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authorities) are, so far as practicable, agreed between OFCOM and those

authorities.

     (6)    Accordingly, section 186 is to have effect in relation to the reference as if the

period for making a determination which is specified in subsection (5) of that

section were such period (if any) as may be agreed between—

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           (a)           OFCOM; and

           (b)           the other regulatory authorities within whose jurisdiction the matter

falls.

 188   Resolution of referred disputes

     (1)    Where OFCOM make a determination for resolving a dispute referred to them

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under this Chapter, their only powers are those conferred by this section.

     (2)    Their main power (except in the case of a dispute relating to rights and

obligations conferred or imposed by or under the enactments relating to the

management of the radio spectrum) is to do one or more of the following—

           (a)           to make a declaration setting out the rights and obligations of the

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parties to the dispute;

           (b)           to give a direction fixing the terms or conditions of transactions

between the parties to the dispute;

           (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

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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

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

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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

the rights and obligations of the parties to the dispute.

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

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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

conditions, privileged supplier conditions or SMP conditions;

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

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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).

     (5)    In the case of a dispute referred back to OFCOM under section 184(6)—

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

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

dispute by alternative means; and

 

 

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

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

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

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expenses incurred by that other party in consequence of the reference

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

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them by a party to the dispute except—

           (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

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party was frivolous or vexatious or that that party has otherwise

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 190.

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

     (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

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

of—

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           (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

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

     (2)    This subsection applies to—

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           (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

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

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

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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

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

to— 

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

within the period specified in section 186;

           (b)           the nature of the dispute; and

           (c)           the information that is required.

 

 

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

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     (5)    Sections 136 to 142 apply for the enforcement of a requirement under this

section as they apply for the enforcement of requirements under section 133 or

134.

     (6)    In its application for the enforcement of this section, section 136 is to have effect

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

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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

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

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     (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;

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

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

of a condition set under section 43;

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

such a direction, approval or consent;

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

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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 107;

                  (iii)               a direction to OFCOM under section 130;

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                  (iv)                a specific direction under section 154 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

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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;

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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

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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—

 

 

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

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

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

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

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.

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

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.

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 191   Reference of price control matters to the Competition Commission

     (1)    Tribunal rules must provide in relation to appeals under section 190(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.

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

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

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of powers conferred by the rules; and

           (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

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

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.

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

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 193, must decide that matter in accordance

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with the determination of that Commission.

     (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.

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

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

 

 

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

    176

 

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

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

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     (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 85(9);

           (b)           section 89; or

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           (c)                         section 91(3).

 192   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 191.

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

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reference under section 191, 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.

 193   Decisions of the Tribunal

     (1)    The Tribunal shall dispose of an appeal under section 190(2) in accordance

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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.

     (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-

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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

effect to its decision.

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

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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

under subsection (4).

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

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condition set by regulations under section 107, the Tribunal must take only

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

good administration.

     (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

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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.

 

 

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

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     (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

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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.

 194   Appeals from the Tribunal

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     (1)    A decision of the Tribunal on an appeal under section 190(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

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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

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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 193(4).

Interpretation of Chapter 3

 195   Interpretation of Chapter 3

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     (1)    In this Chapter—

                    “network access” has the same meaning as in Chapter 1 of this Part;

                    “the Tribunal” means the Competition Appeal Tribunal; and

                    “Tribunal rules” means rules made under section 15 of the Enterprise Act

2002 (c. 40).

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     (2)    References in this Chapter, in relation to a dispute, to the regulatory authorities

of other member States are references to such of the authorities of the other

member States as have been notified under the Framework Directive to the

European Commission as the regulatory authorities of those States for the

purposes of the matters to which the dispute relates.

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     (3)    In this section “the Framework Directive” has the same meaning as in Chapter

1 of this Part.

 

 

 
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