Part 5Competition in communications markets

Chapter 1Functions of OFCOM under competition legislation

371OFCOM’s functions under the Competition Act 1998

(1)

The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the F1CMA.

F2(2)

This subsection applies to the functions of the F1CMA under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) F3, 35C, 38(1) to (6) F4, 40B(1) to (4) and 51), so far as relating to—

(a)

agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b)

conduct of the kind mentioned in section 18(1) of that Act, F5or

F6(c)

transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),

which relate to activities connected with communications matters.

(3)

So far as necessary for the purposes of, or in connection with, the provisions of subsections (1) and (2), references to the F1CMA in Part 1 of the Competition Act 1998 F7(including references in provisions of the Enterprise Act 2002 applied by that Part) are to be read as including references to OFCOM, except—

(a)

F8in sections 31D(1) to (6) F9, 35C, 38(1) to (6) F10, 40B(1) to (4), 51, 52(6) and (8) and 54, and

(b)

where the context otherwise requires.

(4)

In subsection (2), the reference to activities connected with communications matters, so far as it is a reference to activities connected with any apparatus falling within paragraph (d) of section 369(1), includes a reference to—

(a)

the supply and export of any such apparatus; and

(b)

the production or acquisition of any such apparatus for supply or export.

(5)

In section 54 of the Competition Act 1998—

(a)

in subsection (1) (definition of “regulator” for the purposes of Part 1 of that Act), for paragraph (a) there shall be substituted—

“(a)

the Office of Communications;”

(b)

in subsection (4) (power to make regulations about concurrent functions of the F1CMA and sectoral regulators), “or by Chapter V of Part I of the Transport Act 2000” there shall be inserted “ to this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section 371 of the Communications Act 2003 ”.

(6)

In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of networking arrangements under the 1990 Act excluded from the Chapter 1 prohibition)—

(a)

in sub-paragraph (2), for “The Independent Television Commission (“ITC”)” there shall be substituted “ OFCOM ”; and

(b)

in sub-paragraph (3), for “The ITC” there shall be substituted “ OFCOM ”.

(7)

In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the definition of “Minister of the Crown” there shall be inserted—

““OFCOM” means the Office of Communications;”.

(8)

OFCOM may carry out, in respect of activities connected with communications matters and concurrently with the F1CMA, the functions of the F1CMA under any of paragraphs 3, 7, 19(3) and 36 to 39 of Schedule 13 to the Competition Act 1998 (transitional provisions).

(9)

If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to a particular case, that question shall be referred to and determined by the Secretary of State.

(10)

No objection shall be taken to anything done under by or in relation to OFCOM under the Competition Act 1998 (c. 41) on the ground that it should have been done by or in relation to the F1CMA.

(11)

Subject to subsection (12), F11section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

(12)

In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by F12section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the F1CMA is entitled to have regard in the carrying out of those functions.

F13(13)

In making any decision, or otherwise taking action, for the purposes of any of its functions that—

(a)

by virtue of this section, are functions exercisable concurrently with the CMA, and

(b)

are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule,

OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.