Communications Act 2003, section 185

Reference of disputes to OFCOM

Part 2 Networks, services and the radio spectrum

(1)This section applies in the case of a dispute relating to the provision of network access if it is—

(a)a dispute between different communications providers;

(b)a dispute between a communications provider and a person who makes associated facilities available;

(c)a dispute between different persons making such facilities available;

F612 (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F612 (e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F613 (1A)This section also applies in the case of a dispute relating to the provision of network access if—

(a)it is a dispute between a communications provider and a person who is identified, or is a member of a class identified, in a condition imposed on the communications provider under section 45; and

(b)the dispute relates to entitlements to network access that the communications provider is required to provide to that person by or under that condition.F613]

(2)This section also applies in the case of any other dispute if—

(a)it relates to rights or obligations conferred or imposed by or under [F614a condition set under section 45, or any of the enactments relating to the management of the radio spectrumF614] ;

(b)it is a dispute between different communications providers; and

(c)it is not an excluded dispute.

(3)Any one or more of the parties to the dispute may refer it to OFCOM.

(4)A reference made under this section is to be made in such manner as OFCOM may require.

(5)The way in which a requirement under subsection (4)—

(a)is to be imposed, or

(b)may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(6)Requirements imposed under subsection (4) may make different provision for different cases.

(7)A dispute is an excluded dispute for the purposes of subsection (2) if it is about—

(a)obligations imposed on a communications provider by SMP apparatus conditions;

F615 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F615 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F615 (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)For the purposes of this section—

(a)the disputes that relate to the provision of network access include disputes as to the terms or conditions on which it is or may be provided in a particular case; and

(b)the disputes that relate to an obligation include disputes as to the terms or conditions on which any transaction is to be entered into for the purpose of complying with that obligation.

Definitions used in section 185 8

network access

“network access” has the same meaning as in Chapter 1 of this Part;

Defined in s.197(1) · see it in the full Act
communications provider

“communications provider” means a person who (within the meaning of section 32(4)) provides an electronic communications network or an electronic communications service;

Defined in s.405(1) · see it in the full Act
associated facility

(3) In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a)making the provision of that network or service possible;

(b)making possible the provision of other services provided by means of that network or service; or

(c)supporting the provision of such other services.

Defined in s.32(3) · see it in the full Act

“associated facility” has the meaning given by section 32;

Defined in s.405(1) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act
the enactments relating to the management of the radio spectrum

“the enactments relating to the management of the radio spectrum” means—

(a)

the Wireless Telegraphy Act 2006; and

(g)

the provisions of this Act so far as relating to that Act;

Defined in s.405(1) · see it in the full Act
OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act
modification

“modification” includes omissions, alterations and additions, and cognate expressions are to be construed accordingly;

Defined in s.405(1) · see it in the full Act
SMP apparatus condition

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act

Cases considering section 185 7

British Telecommunications Plc v Office of Communications & Ors

[2012] EWCA Civ 1051 · 27 July 2012Limits

The Court held that this provision contains no implied jurisdictional bar on Ofcom accepting a dispute likely to require more than four months. The express scope and exclusions of the provision made the proposed implication impossible. (see paras [65]-[66]) The specified excluded disputes did not include disputes likely to take longer than four months. Their omission supported the rejection of BT’s proposed implied jurisdictional restriction. (see para [66])

Telefonica O2 UK Ltd & Ors v British Telecommunications Plc & Anor

[2012] EWCA Civ 1002 · 25 July 2012Interprets

Interprets Ofcom’s dispute-resolution jurisdiction as a regulatory power concerning the provision of network access. It is the statutory route by which disputes about termination charges reached Ofcom. (see paras [11], [36], [58], [63]) Applies to disputes relating to network access between different communications providers. (see para [11]) Applies the statutory category of disputes between different communications providers to the disputes under appeal. (see paras [11], [63]) Confirms that any one or more parties to the dispute may refer it to Ofcom. (see para [11]) Defines the relevant scope of network-access disputes by including disputes about the terms or conditions on which access is or may be provided. (see paras [11], [63]) Applies the inclusion of disputes about particular network-access terms and conditions to the pricing dispute. (see paras [11], [63])

Hutchison 3G UK Ltd v The Office of Communications & Anor

[2009] EWCA Civ 683 · 16 July 2009Interprets

The court treated section 185 as providing ex post dispute resolution between communications providers and as capable of restraining both excessively high and unreasonably low charges. (see paras [32]; [57]-[68]; [94]-[100]) Cited only. The court noted that disputes concerning access-related conditions, including BT’s end-to-end obligation, could be referred to Ofcom. (see para [86]) Cited only. Cited only. Cited only.

What each judgment says about section 185 is in the case-law panel in the full Act.

Explanatory note

401.This section enables parties to certain disputes relating to network access or dealing with obligations under Part 2 of the Act and other legislation relating to radio spectrum management to be referred by a party to OFCOM. The types of disputes that may be referred are: (i) network access disputes between different communications providers, between communications providers and persons making associated facilities available or between different persons making associated facilities available; (ii) disputes concerning the access-related conditions set under section 74(1) between communications providers or persons making associated facilities available and persons to whom that section applies or between different persons to whom that section applies; (iii) disputes between different communications providers dealing with obligations under Part 2 of the Act (other than disputes about obligations imposed by SMP apparatus conditions, the persistent misuse of networks or services, restrictions in leases and licences or offences relating to networks and services) or under other legislation relating to radio spectrum management.

402.Under subsection (4), OFCOM may stipulate the manner in which a reference may be made by a party to the dispute. Any requirements imposed by OFCOM must be published in a notice. This section implements Article 20(1) of the Framework Directive.

403.Paragraph 22 of Schedule 18 (transitional provisions) makes provision for OFCOM to deal with disputes arising under ‘old’ rules (notably, the Telecommunications (Interconnection) Regulations 1997). Such disputes will in effect continue to be resolved under the ‘old’ rules as regards their substance. This means that, for example, only the latter’s (more restricted) range of remedies can be applied; in particular, OFCOM cannot award costs or compensation. However, these disputes will be handled under the new procedural arrangements – so that, for example, the decisions will be appealable to the CAT, and must be taken within 4 months (rather than 6 as in the present rules) –(see subparagraph (1)). After the end of the transitional period (specified in section 408), OFCOM will only be able to deal with these disputes if they are satisfied that the circumstances are ‘exceptional’ – e.g. if it was not reasonable or possible for the issue in dispute to have been discovered before (subparagraph (2)(d)). Where they take a decision under these provisions, OFCOM must also take steps as soon as possible to decide whether or not to replace the direction giving effect to such a decision with a condition of entitlement under the new regime, and then to either introduce such a condition or else abandon the old direction.

404.Any direction given under regulation 6 before the Telecommunications (Interconnection) Regulations 1997 are revoked will be enforceable under paragraph 13 of Schedule 18. Paragraph 22 also provides (subparagraphs (5) to (7)) for directions made by Oftel to resolve disputes under the Interconnection Regulations to have continued effect even after the revocation of the Regulations by the Act. However OFCOM’s powers to continue such directions are restricted to obligations which could be replaced by new-style obligations and are subject to the duty to review and either replace or abandon them as described above.

All the explanatory notes for the Act

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F612S. 185(1)(d)(e) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(a) (with Sch. 3 para. 2)
  2. F613S. 185(1A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(b) (with Sch. 3 para. 2)
  3. F614Words in s. 185(2)(a) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(c) (with Sch. 3 para. 2)
  4. F615S. 185(7)(b)-(d) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(d) (with Sch. 3 para. 2)

Modifications

  1. C38Ss. 185-191(4) applied (6.4.2023) by The Trade (Mobile Roaming) Regulations 2023 (S.I. 2023/214), regs. 1(b), 9(2)(3)

Commencement

  1. I319S. 185 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
  2. I320S. 185 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)