Government of Bermuda v Office of Communications & Ors

Where Ofcom is the sole representative of territories before an international communications body, its statutory representative function may include resolving conflicts between those territories. That power may arise by necessary or incidental implication from Communications Act 2003, sections 1(3) and 22. Ofcom is not required to follow one territory’s instructions where doing so would prevent it from representing another. It may assess the conflict by applying the international body’s established technical method, provided the approach is rational and gives the territory no worse a position than it would have held if independently represented.

Bermuda sought judicial review of Ofcom’s decision to submit an amended satellite frequency assignment for the Isle of Man to the International Telecommunications Union. The amendment had been assessed using the ITU’s MSPACEg software and no longer showed interference with Bermuda’s network beyond the limits in Annex 1 to Appendix 30 of the Radio Regulations.

Bermuda argued that Ofcom had exceeded its representative role, was bound to advance Bermuda’s objections, and had irrationally treated MSPACEg as determinative. The central issue was whether section 22 of the Communications Act 2003 enabled Ofcom to resolve the conflict and proceed with the filing.

1. Application refused. The amended proposal no longer caused interference exceeding the Annex 1 limits. Under the Article 4 procedure, Bermuda would therefore no longer have been an affected administration if it had been independently represented. Its agreement was not required before the amended proposal was filed.
2. Ofcom had statutory duties to represent both Bermuda and the Isle of Man before the ITU. The statutory scheme necessarily contemplated conflicts between territories for which Ofcom was the sole administrator. Without an implied power to resolve such conflicts, Ofcom could be unable to perform its international representative function and the Isle of Man’s filing could lapse through delay.
3. It was therefore necessary or incidental to Ofcom’s functions under section 22 of the Communications Act 2003, and consequential upon them, to resolve the dispute. The power could arise under section 1(3) or the common law. It was neither inconsistent with the express representative power nor an unlawful exercise of extra-territorial regulatory jurisdiction. Ofcom was not bound to follow Bermuda’s instructions.
4. Ofcom acted rationally in using MSPACEg, the accepted international method used by the ITU to determine whether the Annex 1 limits were exceeded. Its decision did not place Bermuda in a worse position than independent representation would have done.
5. The further submissions that Ofcom should have referred Bermuda’s latest concerns to the ITU and should have treated the technical issue differently failed. Those matters were unnecessary to determine because the amended proposal no longer affected Bermuda under the applicable procedure.

First-instance judicial review proceedings. The application for judicial review was refused by the High Court (Administrative Court).