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Communications Act 2003

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This is the original version (as it was originally enacted).

Appeals

192Appeals 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;

(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 45;

(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 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 109;

(iii)a direction to OFCOM under section 132;

(iv)a specific direction under section 156 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 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; 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 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 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 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 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.

193Reference of price control matters to the Competition Commission

(1)Tribunal rules must provide in relation to appeals under section 192(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 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

(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 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 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 195, must decide that matter in accordance 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.

(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 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.

(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 87(9);

(b)section 91; or

(c)section 93(3).

194Composition 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 193.

(2)In selecting a group to perform the Commission’s functions in relation to a reference under section 193, 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.

195Decisions of the Tribunal

(1)The Tribunal shall dispose of an appeal under section 192(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.

(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 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 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 109, 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 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.

(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 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.

196Appeals from the Tribunal

(1)A decision of the Tribunal on an appeal under section 192(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 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 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 195(4).

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