(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
(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 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 183(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.
(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
(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.
(9) Subsection (8) is subject to section 189.
188 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
(1) provide them with all such information as they may require for the purpose
(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
(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,
(a) their obligation to make a determination for resolving the dispute
within the period specified in section 185;
(b) the nature of the dispute; and
(c) the information that is required.
(5) Sections 135 to 141 apply for the enforcement of a requirement under this
section as they apply for the enforcement of requirements under section 132 or
(6) In its application for the enforcement of this section, section 135 is to have effect
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.
189 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;
(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 42;
(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
(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 106;
(iii) a direction to OFCOM under section 129;
(iv) a specific direction under section 153 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;
(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
(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
(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.
190 Reference of price control matters to the Competition Commission
(1) Tribunal rules must provide in relation to appeals under section 189(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
(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 192, 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
(a) section 84(9);
(b) section 88; or
(c) section 90(3).
191 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 190.
(2) In selecting a group to perform the Commission’s functions in relation to a
reference under section 190, 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.
192 Decisions of the Tribunal
(1) The Tribunal shall dispose of an appeal under section 189(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
(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 106, the Tribunal must take only
such steps for disposing of the appeal as it considers are not detrimental to
(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.
193 Appeals from the Tribunal
(1) A decision of the Tribunal on an appeal under section 189(2) may itself be
(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
(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 192(4).