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Communications Act 2003

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DisputesE+W+S+N.I.

185Reference of disputes to OFCOME+W+S+N.I.

(1)This section applies in the case of a dispute relating to the provision of network access if it is—

(a)a dispute between different communications providers;

(b)a dispute between a communications provider and a person who makes associated facilities available;

(c)a dispute between different persons making such facilities available;

F1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2(1A)This section also applies in the case of a dispute relating to the provision of network access if—

(a)it is a dispute between a communications provider and a person who is identified, or is a member of a class identified, in a condition imposed on the communications provider under section 45; and

(b)the dispute relates to entitlements to network access that the communications provider is required to provide to that person by or under that condition.]

(2)This section also applies in the case of any other dispute if—

(a)it relates to rights or obligations conferred or imposed by or under [F3a condition set under section 45, or any of the enactments relating to the management of the radio spectrum] ;

(b)it is a dispute between different communications providers; and

(c)it is not an excluded dispute.

(3)Any one or more of the parties to the dispute may refer it to OFCOM.

(4)A reference made under this section is to be made in such manner as OFCOM may require.

(5)The way in which a requirement under subsection (4)—

(a)is to be imposed, or

(b)may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(6)Requirements imposed under subsection (4) may make different provision for different cases.

(7)A dispute is an excluded dispute for the purposes of subsection (2) if it is about—

(a)obligations imposed on a communications provider by SMP apparatus conditions;

F4(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)For the purposes of this section—

(a)the disputes that relate to the provision of network access include disputes as to the terms or conditions on which it is or may be provided in a particular case; and

(b)the disputes that relate to an obligation include disputes as to the terms or conditions on which any transaction is to be entered into for the purpose of complying with that obligation.

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Amendments (Textual)

Commencement Information

I1S. 185 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I2S. 185 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F5185A.Power of OFCOM to invite parties to refer disputeE+W+S+N.I.

OFCOM may invite any one or more of the parties to a dispute falling within section 185(1) to refer the dispute to OFCOM under section 185(3).]

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Amendments (Textual)

186Action by OFCOM on dispute referenceE+W+S+N.I.

(1)This section applies where a dispute is referred to OFCOM under and in accordance with section 185.

(2)OFCOM must decide whether or not it is appropriate for them to handle the dispute.

[F6(2A)In relation to a dispute falling within subsection 185(1), OFCOM may in particular take into account their priorities and available resources in considering whether it is appropriate for them to handle the dispute.]

(3)[F7In relation to a dispute falling within section 185(1A) or (2),] Unless they consider—

(a)that there are alternative means available for resolving the dispute,

(b)that a resolution of the dispute by those means would be consistent with [F8European Union] requirements set out in section 4, and

(c)that a prompt and satisfactory resolution of the dispute is likely if those alternative means are used for resolving it,

their decision must be a decision that it is appropriate for them to handle the dispute.

(4)As soon as reasonably practicable after OFCOM have decided—

(a)that it is appropriate for them to handle the dispute, or

(b)that it is not,

they must inform each of the parties to the dispute of their decision and of their reasons for it.

(5)The notification must state the date of the decision.

(6)[F9In relation to a dispute falling within section 185(1A) or (2),] Where—

(a)OFCOM decide that it is not appropriate for them to handle the dispute, but

(b)the dispute is not resolved by other means before the end of the four months after the day of OFCOM’s decision,

the dispute may be referred back to OFCOM by one or more of the parties to the dispute.

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Amendments (Textual)

Commencement Information

I3S. 186 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I4S. 186 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

187Legal proceedings about referred disputesE+W+S+N.I.

(1)Where a dispute is referred or referred back to OFCOM under this Chapter, the reference is not to prevent—

(a)the person making it,

(b)another party to the dispute,

(c)OFCOM, or

(d)any other person,

from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.

(2)Nor is the reference or reference back to OFCOM under this Chapter of a dispute to prevent OFCOM from—

(a)giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of any obligation imposed by or under any an enactment;

(b)exercising any of their other powers under any enactment in relation to a contravention of such an obligation; or

(c)taking any other step in preparation for or with a view to doing anything mentioned in the preceding paragraphs.

(3)If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—

(a)OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires; and

(b)the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make such a determination.

(4)Subsection (1) is subject to section 190(8) and to any agreement to the contrary binding the parties to the dispute.

(5)In this section “legal proceedings” means civil or criminal proceedings in or before a court.

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Commencement Information

I5S. 187 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I6S. 187 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

188Procedure for resolving disputesE+W+S+N.I.

(1)This section applies where—

(a)OFCOM have decided under section 186(2) that it is appropriate for them to handle a dispute; or

(b)a dispute is referred back to OFCOM under section 186(6).

(2)OFCOM must—

(a)consider the dispute; and

(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 186(6), that procedure may involve allowing the continuation of a procedure that has already been begun for resolving the dispute by alternative means.

(5)Except in exceptional circumstances and subject to section 187(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 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 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, 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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Commencement Information

I7S. 188 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I8S. 188 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

189Disputes involving other member StatesE+W+S+N.I.

(1)This section applies where it appears to OFCOM that a dispute referred or referred back to them under this Chapter [F10(other than a dispute falling within section 185(1))] 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 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 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.

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

[F11(a)must co-ordinate their efforts with the other regulatory authorities within whose jurisdiction the matter falls,

(b)may consult BEREC in order to bring about a consistent resolution of the dispute, and

(c)may request BEREC to adopt an opinion as to the action to be taken to resolve the dispute.]

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

[F12(5A)Where an opinion is received from BEREC in relation to the reference or dispute, it shall be the duty of OFCOM to secure that steps taken in relation to the reference or dispute take account of the opinion (whether the opinion was requested by OFCOM or by the other regulatory authorities).]

(6)Accordingly, section 188 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—

(a)OFCOM; and

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

[F13(7)OFCOM must—

(a)ensure, so far as practicable, that a period agreed under subsection (6) is long enough for BEREC to provide an opinion, if one has been requested by OFCOM or by the other regulatory authorities, and

(b)agree to any necessary extension of the period if an opinion is requested from BEREC (by OFCOM or by the other regulatory authorities) after the period has been agreed.

(8)Subsection (7) does not apply if the dispute in question has resulted in, or creates an immediate risk of—

(a)a serious threat to the safety of the public, to public health or to national security;

(b)serious economic or operational problems for persons who are communications providers or persons who make associated facilities available; or

(c)serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities, or for other users of the radio spectrum.]

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Amendments (Textual)

Commencement Information

I9S. 189 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I10S. 189 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

190Resolution of referred disputesE+W+S+N.I.

(1)Where OFCOM make a determination for resolving a dispute referred to them 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 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 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 payment of sums by way of adjustment of an underpayment or overpayment.

[F14(2A)In relation to a dispute falling within section 185(1), OFCOM must exercise their powers under subsection (2) in the way that seems to them most appropriate for the purpose of securing—

(a)efficiency;

(b)sustainable competition;

(c)efficient investment and innovation; and

(d)the greatest possible benefit for the end-users of public electronic communications services.]

(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 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 grants of recognised spectrum access;

(c)their power to make, amend or revoke [F15regulations under section 8 or 45 of the Wireless Telegraphy Act 2006] .

(5)In the case of a dispute referred back to OFCOM under section 186(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 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 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.

[F16and may determine the amount of the costs and when the costs are to be paid.]

[F17(6A)OFCOM may not, under subsection (6)(a), require a party to the dispute to make payments to another party unless OFCOM have considered—

(a)the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempt has been made to resolve the dispute), and

(b)whether OFCOM has made a decision in the party’s favour in respect of the whole or a part of the dispute.

(6B)OFCOM may not, under subsection (6)(b), require payments to be made to them by a party to the dispute unless—

(a)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)they have considered the matters referred to in subsection (6A)(a) and (b).]

F18(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 192.

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Amendments (Textual)

F15Words in s. 190(4)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 27

Commencement Information

I11S. 190 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I12S. 190 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

191OFCOM’s power to require information in connection with disputeE+W+S+N.I.

(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—

(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—

(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 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—

(a)their obligation to make a determination for resolving the dispute within the period specified in section 188;

(b)the nature of the dispute; and

(c)the information that is required.

(5)Sections 138 to 144 apply for the enforcement of a requirement under this section as they apply for the enforcement of requirements under section 135 or 136.

F19(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I13S. 191 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I14S. 191 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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