(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(b)may be withdrawn or modified,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.
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.