|
| |
| |
(a) their powers under Chapter 1 of this Part to set, modify or revoke | |
general conditions, universal service conditions, accessed 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; | 5 |
(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 181(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 | 10 |
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— | 15 |
(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. | 20 |
(7) OFCOM are not, under subsection (6)(b), to require payments to be made to | |
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 | 25 |
(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 | |
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. | 30 |
(9) Subsection (8) is subject to section 187. | |
186 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 | 35 |
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. | 40 |
(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). | 45 |
| |
| |
|
| |
| |
(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, | 5 |
to— | |
(a) their obligation to make a determination for resolving the dispute | |
within the period specified in section 183; | |
(b) the nature of the dispute; and | |
(c) the information that is required. | 10 |
(5) Sections 134 to 140 apply for the enforcement of a requirement under this | |
section as they apply for the enforcement of requirements under section 131 or | |
132. | |
(6) In its application for the enforcement of this section, section 134 is to have effect | |
as if it allowed OFCOM to specify such period of less than one month for doing | 15 |
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 | |
187 Appeals against decisions by OFCOM, the Secretary of State etc. | 20 |
(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 | 25 |
a direction, approval or consent given for the purposes of a provision | |
of a condition set under section 41; | |
(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 | 30 |
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 105; | |
(iii) a direction to OFCOM under section 128; | 35 |
(iv) a specific direction under section 151 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 | 40 |
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 | 5 |
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— | 10 |
(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 | 15 |
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. | 20 |
(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. | 25 |
188 Reference of price control matters to the Competition Commission | |
(1) Tribunal rules must provide in relation to appeals under section 187(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. | 30 |
(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 | 35 |
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 | 40 |
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. | 45 |
(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 190, 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 | 5 |
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 | 10 |
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. | 15 |
(10) In this section “price control matter” means a matter relating to the imposition | |
of any form of price control by an SMP services condition the setting of which | |
is authorised by— | |
(a) section 83(9); or | |
(b) section 87. | 20 |
189 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 188. | |
(2) In selecting a group to perform the Commission’s functions in relation to a | |
reference under section 188, the chairman of the Commission must select at | 25 |
least one, and not more than three, of the members appointed under this | |
section to be members of the group. | |
190 Decisions of the Tribunal | |
(1) The Tribunal shall dispose of an appeal under section 187(2) in accordance | |
with this section. | 30 |
(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. | 35 |
(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 | 40 |
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 105, 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 | 5 |
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— | 10 |
(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 | 15 |
(ii) the modification or withdrawal by such a person of such a | |
direction, approval or consent, | |
that other person. | |
191 Appeals from the Tribunal | |
(1) A decision of the Tribunal on an appeal under section 187(2) may itself be | 20 |
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. | 25 |
(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. | 30 |
(5) In this section references to a decision of the Tribunal include references to a | |
direction given by it under section 190(4). | |
Interpretation of Chapter 3 | |
192 Interpretation of Chapter 3 | |
(1) In this Chapter— | 35 |
“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. | |
(2) References in this Chapter, in relation to a dispute, to the regulatory authorities | 40 |
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 | |
| |
| |
|
| |
| |
(2) European Commission as the regulatory authorities of those States for the | |
purposes of the matters to which the dispute relates. | |
(3) In this section “the Framework Directive” has the same meaning as in Chapter | |
1 of this Part. | |
Part 3 | 5 |
Television and Radio Services | |
Chapter 1 | |
The BBC, C4C the Welsh Authority and the Gaelic media service | |
The BBC | |
193 Functions of OFCOM in relation to the BBC | 10 |
(1) It shall be a function of OFCOM, to the extent that provision for them to do so | |
is contained in— | |
(a) an agreement made (whether before or after the coming into force of | |
this section) between the BBC and the Secretary of State, and | |
(b) the provisions of this Act and of Part 5 of the 1996 Act, | 15 |
to regulate the provision of the BBC’s services and the carrying on by the BBC | |
of other activities for purposes connected with the provision of those services. | |
(2) For the purposes of the carrying out of that function OFCOM— | |
(a) are to have such powers and duties as may be conferred on them by an | |
agreement falling within subsection (1)(a); and | 20 |
(b) are entitled, to the extent that they are authorised to do so by the | |
Secretary of State or under the terms of the agreement, to act on his | |
behalf in relation to such an agreement. | |
(3) The powers that may be conferred on OFCOM by an agreement between the | |
BBC and the Secretary of State include power, to such extent as the agreement | 25 |
may provide, to impose penalties on the BBC in respect of contraventions of the | |
agreement or of provisions of this Part. | |
(4) The BBC are also to be liable to pay OFCOM such sums in respect of the | |
carrying out by OFCOM of their functions in relation to the BBC as may be— | |
(a) agreed from time to time between the BBC and OFCOM; or | 30 |
(b) (in default of agreement) fixed by the Secretary of State. | |
(5) The maximum penalty that may be imposed on the BBC on any occasion by | |
virtue of subsection (3) is £250,000. | |
(6) The Secretary of State may by order substitute a different sum for the sum for | |
the time being specified in subsection (5). | 35 |
(7) No order is to be made containing provision authorised by subsection (6) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
(8) It shall be the duty of OFCOM to have regard to their functions under this | |
section when carrying out their functions under the 1990 Act, the 1996 Act and | 40 |
this Part in relation to services provided by persons other than the BBC. | |
| |
| |
|
| |
| |
(9) In this section “the BBC’s services” means such of the services provided by the | |
BBC (excluding the services comprised in the World Service) as are of a | |
description of service which, if provided by a BBC company, would fall to be | |
regulated by OFCOM by virtue of section 206 or 239. | |
C4C | 5 |
194 Functions of C4C | |
(1) The activities that C4C are able to carry on include any activities which appear | |
to them— | |
(a) to be activities that it is appropriate for them to carry on in association | |
with the carrying out of their primary functions; and | 10 |
(b) to be connected, otherwise than merely in financial terms, with | |
activities undertaken by them for the carrying out of those functions. | |
(2) C4C’s primary functions are— | |
(a) securing the continued provision of Channel 4; and | |
(b) the fulfilment of the public service remit for that Channel under section | 15 |
257. | |
(3) Section 24(5)(b) and (6) of the 1990 Act (power of C4C to establish, acquire an | |
interest in or assist a qualifying company) shall cease to have effect. | |
(4) For sub-paragraphs (3) and (4) of paragraph 1 of Schedule 3 to the 1990 Act | |
(power of C4C to do things incidental or conducive to the carrying out of their | 20 |
functions) there shall be substituted— | |
“(3) The Corporation may do anything which appears to them to be | |
incidental or conducive to the carrying out of their functions. | |
(4) The powers of the Corporation under sub-paragraph (3) include | |
power, to the extent that it appears to them incidental or conducive | 25 |
to the carrying out of their functions to do so— | |
(a) to borrow money; | |
(b) to carry on activities (other than those comprised in their | |
duty to carry out their primary functions) through Channel 4 | |
companies; and | 30 |
(c) to participate with others in the carrying on of any such | |
activities.” | |
(5) Schedule 9 (which makes provision for the approval by OFCOM, and for the | |
enforcement, of arrangements made by C4C about the carrying on of their | |
activities) shall have effect. | 35 |
195 Removal of members of C4C | |
(1) In paragraph 3 of Schedule 3 to the 1990 Act (term of office of members of C4C), | |
after sub-paragraph (2) there shall be inserted— | |
“(2A) OFCOM may at any time, by notice to a member of the Corporation, | |
terminate the appointment of that member. | 40 |
(2B) Before terminating a person’s appointment under sub-paragraph | |
(2A), OFCOM must consult the Secretary of State.” | |
| |
| |
|
