Communications Act 2003, section 188

Procedure for resolving disputes

Part 2 Networks, services and the radio spectrum

(1)This section applies where—

(a)OFCOM have decided under section 186(2) that it is appropriate for them to handle a dispute; or

(b)a dispute is referred back to OFCOM under section 186(6).

(2)OFCOM must—

(a)consider the dispute; and

(b)make a determination for resolving it.

(3)The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.

(4)In the case of a dispute referred back to OFCOM under section 186(6), that procedure may involve allowing the continuation of a procedure that has already been begun for resolving the dispute by alternative means.

(5)Except in exceptional circumstances and subject to section 187(3), OFCOM must make their determination no more than four months after the following day—

(a)in a case falling within subsection (1)(a), the day of the decision by OFCOM that it is appropriate for them to handle the dispute; and

(b)in a case falling within subsection (1)(b), the day on which the dispute is referred back to them.

(6)Where it is practicable for OFCOM to make their determination before the end of the four month period, they must make it as soon in that period as practicable.

(7)OFCOM must—

(a)send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute; and

(b)publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.

(8)The publication of information under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention, to the extent that they consider appropriate, of members of the public.

Definitions used in section 188 2

OFCOM

“OFCOM” means the Office of Communications;

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

“information” includes accounts, estimates and projections and any document;

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

Cases considering section 188 5

British Telecommunications Plc v Office of Communications & Ors

[2012] EWCA Civ 1051 · 27 July 2012

The four-month period appears in the statutory procedure for resolving a dispute, rather than in the provisions defining which disputes may be referred. It therefore did not limit Ofcom’s jurisdiction to accept the dispute. (see para [66])

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

[2012] EWCA Civ 1002 · 25 July 2012

Provides the procedure for Ofcom’s consideration and determination of a referred dispute and imposes the ordinary four-month timetable. The short timetable informs the practical regulatory approach. (see paras [58], [63], [93])

British Telecommunications Plc v Office of Communications & Ors

[2011] EWCA Civ 245 · 10 March 2011Interprets

The court treated section 188 as prescribing a short timetable for Ofcom’s dispute determination, while declining to infer a statutory evidential bar on the appeal process (see paras [12]; [67]). Section 188(5) requires Ofcom to determine an accepted dispute within four months except in exceptional circumstances. The court held that this first-instance deadline did not impose a corresponding restriction on fresh evidence before the CAT (see paras [12]; [42]; [67]). Cited only.

What each judgment says about section 188 is in the case-law panel in the full Act.

Explanatory note

407.This section requires OFCOM to consider and determine any dispute referred under section 185 that they decide to handle or any dispute referred back to them under subsection (6) of section 186. Unless there are exceptional circumstances or it is reasonably practicable for OFCOM to make a determination in a shorter period of time, OFCOM must determine a dispute within 4 months of the date on which OFCOM determines that it is appropriate for them to handle the dispute or on which the dispute is referred back to them. OFCOM must send a copy of their determination and the reasons for their decision to each party to the dispute. Subject to commercial confidentiality, OFCOM must also publish its determination. Section 188 implements Article 20(1) and (4) of the Framework Directive.

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

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. I325S. 188 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. I326S. 188 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)