Communications Act 2003, section 190

Resolution of referred disputes

Part 2 Networks, services and the radio spectrum

(1)Where OFCOM make a determination for resolving a dispute referred to them under this Chapter, their only powers are those conferred by this section.

(2)Their main power (except in the case of a dispute relating to rights and obligations conferred or imposed by or under the enactments relating to the management of the radio spectrum) is to do one or more of the following—

(a)to make a declaration setting out the rights and obligations of the parties to the dispute;

(b)to give a direction fixing the terms or conditions of transactions between the parties to the dispute;

(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 overpayment.

[F622 (2A)In relation to a dispute falling within section 185(1), OFCOM must exercise their powers under subsection (2) in the way that seems to them most appropriate for the purpose of securing—

(a)efficiency;

(b)sustainable competition;

(c)efficient investment and innovation; and

(d)the greatest possible benefit for the end-users of public electronic communications services.F622]

(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 [F623regulations under section 8 or 45 of the Wireless Telegraphy Act 2006F623] .

(5)In the case of a dispute referred back to OFCOM under section 186(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.

[F624 and may determine the amount of the costs and when the costs are to be paid.F624]

[F625 (6A)OFCOM may not, under subsection (6)(a), require a party to the dispute to make payments to another party unless OFCOM have considered—

(a)the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempt has been made to resolve the dispute), and

(b)whether OFCOM has made a decision in the party’s favour in respect of the whole or a part of the dispute.

(6B)OFCOM may not, under subsection (6)(b), require payments to be made to them by a party to the dispute unless—

(a)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)they have considered the matters referred to in subsection (6A)(a) and (b).F625]

F626 (7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 192.

Definitions used in section 190 7

OFCOM

“OFCOM” means the Office of Communications;

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
end-user

(10) In sub-paragraph (8) “public electronic communications service” and “end-user” each has the same meaning as in Chapter 1 of Part 2.

Defined in Sch.12 para.5(10) · see it in the full Act
public electronic communications service

(10) In sub-paragraph (8) “public electronic communications service” and “end-user” each has the same meaning as in Chapter 1 of Part 2.

Defined in Sch.12 para.5(10) · see it in the full Act
access

“access” is to be construed in accordance with subsection (4);

Defined in s.405(1) · see it in the full Act
SMP 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
wireless telegraphy licence

“wireless telegraphy licence” means a licence granted under section 8 of the Wireless Telegraphy Act 2006 .

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

Cases considering section 190 6

British Telecommunications Plc v Telefónica O2 UK Ltd and Others

[2014] UKSC 42 · 9 July 2014Defines

The power to declare parties' rights and obligations demonstrates the adjudicatory component of Ofcom's dispute-resolution jurisdiction (see paras [14]; [32]). The power to fix transaction terms demonstrates the regulatory component of Ofcom's dispute-resolution jurisdiction (see paras [14]; [32]). The power to require parties to enter a transaction on terms fixed by Ofcom demonstrates the regulatory component of its dispute-resolution jurisdiction (see paras [14]; [32]). Empowers Ofcom to direct adjustment payments when determining the proper amount of a charge (see para [14]).

British Telecommunications plc v Office Of Communications (OFCOM) & Ors

[2017] EWCA Civ 330 · 4 May 2017Limits

Section 190 defines Ofcom’s powers when determining a referred dispute, including directions needed to give effect to the determination. (see paras [33] and [79]-[90]) The subsection confines Ofcom to the powers conferred by section 190 when resolving a referred dispute, but does not narrow the natural meaning of section 190(2)(d). (see paras [33], [77] and [89]) The subsection confers Ofcom’s main dispute-resolution powers, which must be interpreted consistently with the regulatory scheme. (see paras [33] and [79]-[90]) Ofcom may fix contractual terms prospectively, including terms addressing interest if an overpayment is later found. (see para [90]) A direction requiring sums by way of adjustment of an overpayment may include interest reflecting the time value of money. The power enables effective rectification and compliance with SMP obligations. (see paras [79]-[90])

British Telecommunications Plc v Office of Communications & Ors

[2012] EWCA Civ 1051 · 27 July 2012Interprets

This provision forms part of a statutory code giving effect to the regulatory framework. Its remedies need not be aligned with common-law claims for damages or unjust enrichment. (see paras [82]-[84]) The power to adjust an underpayment or overpayment gives Ofcom a principled, non-binary repayment discretion. Repayment of an overcharge is the starting point, but partial or no repayment may be ordered where it better achieves the statutory and regulatory objectives. (see paras [82]-[84])

What each judgment says about section 190 is in the case-law panel in the full Act.

Explanatory note

411.When determining a dispute under Chapter 3 of Part 2 of the Act, OFCOM may:

  • issue a declaration setting out the rights and obligations of each party to the dispute;

  • fix terms or conditions of transactions between the parties to a dispute (except where the dispute relates to radio spectrum management legislation);

  • impose enforceable obligations requiring the parties to enter into a transactions on terms or conditions set by OFCOM (except where the dispute relates to radio spectrum management legislation);

  • direct a party to the dispute to make payments to adjust under- or overpayment (except where the dispute relates to radio spectrum management legislation);

  • require a party to make payments in respect of costs and expenses incurred by another party;

  • require a party to make payments in respect of costs and expenses incurred by OFCOM, where the dispute relates to radio spectrum management legislation or where it appears to OFCOM that the reference was frivolous or vexatious or that a party otherwise abused his right of reference under Chapter 3;

  • take account of any decisions made by others and ratify any such decisions, where a dispute has been referred back under subsection (6) of section 186.

412.These powers to resolve a dispute do not prevent OFCOM from separately exercising their powers to (i) set, modify or revoke general conditions, specific conditions dealing with universal service, access, privileged suppliers or SMP, (ii) to modify or revoke wireless telegraphy licences or grants of recognised spectrum access; or (iii) to make, vary or revoke any regulations under section 1 or 3 of the Wireless Telegraphy Act 1949.

413.Any determination made by OFCOM is binding on the parties to the dispute; however, they may appeal against the determination in accordance with section 192.

All the explanatory notes for the Act

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F622S. 190(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(a) (with Sch. 3 para. 2)
  2. F623Words in s. 190(4)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 27
  3. F624Words in s. 190(6) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(b) (with Sch. 3 para. 2)
  4. F625S. 190(6A)(6B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(c) (with Sch. 3 para. 2)
  5. F626S. 190(7) 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. 95(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. I327S. 190 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. I328S. 190 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)