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(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 | 5 |
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. | |
(3) Their main power in the excepted case is just to make a declaration setting out | 10 |
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, accessed related | 15 |
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 regulations under section 1 or 3 | |
of the Wireless Telegraphy Act 1949 (c. 54). | 20 |
(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 | |
dispute by alternative means; and | |
(b) the determination made by OFCOM may include provision ratifying | 25 |
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 | 30 |
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 | |
them by a party to the dispute except— | 35 |
(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 | |
party was frivolous or vexatious or that that party has otherwise | 40 |
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 187. | |
186 OFCOM’s power to require information in connection with dispute | 45 |
(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 | |
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(1) 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 | 5 |
(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 | 10 |
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 | 15 |
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 183; | |
(b) the nature of the dispute; and | 20 |
(c) the information that is required. | |
(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 | 25 |
as if it allowed OFCOM to specify such period of less than one month for doing | |
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 | 30 |
187 Appeals 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; | 35 |
(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 41; | |
(c) a decision to which effect is given by the modification or withdrawal of | |
such a direction, approval or consent; | 40 |
(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 105; | 45 |
(iii) a direction to OFCOM under section 128; | |
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(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 | 5 |
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; | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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 | 30 |
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. | |
188 Reference of price control matters to the Competition Commission | 35 |
(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. | |
(2) Where a price control matter is referred in accordance with Tribunal rules to | 40 |
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 | 45 |
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(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 | 5 |
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 | 10 |
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. | 15 |
(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 | 20 |
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 | 25 |
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 services condition the setting of which | |
is authorised by— | |
(a) section 83(9); or | 30 |
(b) section 87. | |
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 | 35 |
reference under section 188, 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. | |
190 Decisions of the Tribunal | |
(1) The Tribunal shall dispose of an appeal under section 187(2) in accordance | 40 |
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. | |
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(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 | 5 |
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 | 10 |
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. | 15 |
(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. | 20 |
(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 | 25 |
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. | |
191 Appeals from the Tribunal | 30 |
(1) A decision of the Tribunal on an appeal under section 187(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 | 35 |
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 | 40 |
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 190(4). | |
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