Communications Act 2003, section 192

Appeals against decisions by OFCOM, the Secretary of State etc

Part 2 Networks, services and the radio spectrum

(1)This section applies to the following decisions—

(a)a decision by OFCOM under this Part [F630or any of Parts 1 to 3 of the Wireless Telegraphy Act 2006F630] that is not a decision specified in Schedule 8;

(b)a decision (whether by OFCOM or another) to which effect is given by a direction, approval or consent given for the purposes of a provision of a condition set under section 45;

(c)a decision to which effect is given by the modification or withdrawal of such a direction, approval or consent;

(d)a decision by the Secretary of State to which effect is given by one of the following—

(i)a specific direction under section 5 that is not about the making of a decision specified in Schedule 8;

(ii)a restriction or condition set by regulations under section 109;

[F631 (iia)an order under section 124P;F631]

(iii)a direction to OFCOM under section 132;

(iv)a specific direction under [F632section 5 of the Wireless Telegraphy Act 2006F632] that is not about the making of a decision specified in Schedule 8.

[F633 (e)a decision by the CMA to which effect is given by an order made under section 193A.F633]

(2)A person affected by a decision to which this section applies may appeal against it to the Tribunal.

(3)The means of making an appeal is by sending the Tribunal a notice of appeal in accordance with Tribunal rules.

(4)The notice of appeal must be sent within the period specified, in relation to the decision appealed against, in those rules.

(5)The notice of appeal must set out—

(a)the provision under which the decision appealed against was taken; and

(b)the grounds of appeal.

(6)The grounds of appeal must be set out in sufficient detail to indicate—

(a)to what extent (if any) the appellant contends that the decision appealed against was based on an error of fact or was wrong in law or both; and

(b)to what extent (if any) the appellant is appealing against the exercise of a discretion by OFCOM, by the Secretary of State [F634, by the CMAF634] or by another person.

(7)In this section and Schedule 8 references to a decision under an enactment—

(a)include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but

(b)include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty;

and references in the following provisions of this Chapter to a decision appealed against are to be construed accordingly.

(8)For the purposes of this section and the following provisions of this Chapter a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.

Definitions used in section 192 6

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
the CMA

“the CMA” means the Competition and Markets Authority;

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

“the Tribunal” means the Competition Appeal Tribunal; and

Defined in s.197(1) · see it in the full Act
Tribunal rules

“Tribunal rules” means rules made under section 15 of the Enterprise Act 2002 .

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

“enactment” includes any enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland legislation;

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

Cases considering section 192 14

Competition and Markets Authority v Flynn Pharma Ltd and another

[2022] UKSC 14 · 25 May 2022

The section provides an appeal route to the Tribunal from regulatory and dispute-resolution decisions of Ofcom. Decisions under that route supplied a comparison with Competition Act appeals but did not determine their costs starting point. (see paras [18]; [66]-[79])

Viasat UK Ltd & Anor v The Office of Communications & Anor

[2020] EWCA Civ 624 · 11 May 2020

The Court treated section 192 as providing the statutory appeal route to the Tribunal, subject to the grounds in the notice of appeal. (see para [16]) The Court treated its own appeal jurisdiction as limited to points of law. (see para [16])

British Telecommunications Plc v The Office of Communications

[2018] EWCA Civ 2542 · 14 November 2018

The court determined the costs starting point applicable to an appeal brought under this provision. The provision’s appeal route did not justify disregarding the principles governing costs against public regulators acting reasonably and in the public interest. (see paras [1]; [70]-[72]) Cited only.

What each judgment says about section 192 is in the case-law panel in the full Act.

Explanatory note

416.This section provides for appeal to the Competition Appeal Tribunal (CAT) against decisions (with specified exceptions) made by OFCOM under Part 2 of the Act and the Wireless Telegraphy Acts 1949 and 1998 and against decisions made further to a condition of entitlement set under section 45. The specified exceptions are set out in Schedule 8 and are either (i) decisions that do not have immediate effect on a person, but are of a legislative or quasi-legislative nature that require a further act or decision to be given effect, or (ii) decisions on matters which fall outside the scope of the Communications Directives. For example, a decision taken by OFCOM relating to the making or revision of a statement of policy on information-gathering under section 145 would not have immediate effect on any person. It would only be where OFCOM exercised their powers under section 135 to require the provision of information, in accordance with that statement, that there would be a decision that would actually have effect on any person. Another example is decisions under section 175 (special procedure for contraventions by multiplex licence holders), which fall outside the scope of the Directives.

  • *For the purposes of this section and the rest of this Chapter, a decision includes OFCOM’s exercise of any power and any failure by them to grant an application or to exercise any power following a request (subsection (7) and (8)).

417.Section 192 also applies to specific decisions of the Secretary of State given under section 5 (directions in respect of Part 2 functions) or section 156 (directions with respect to radio spectrum) (in both cases, excluding decisions specified by Schedule 8), under section 109 (restrictions and conditions subject to which the electronic communications code applies) or under section 132 (suspension or restriction of a communication provider’s entitlement).

418.The right of appeal extends to any person affected by a decision to which this section applies. Subsections (3) to (6) provide that an appeal can be made only by sending a notice of appeal to the CAT, and prescribe the contents of the notice. This section and sections 193 to 195 implement Article 4 and 11(3) of the Framework Directive and Article 10(7) of the Authorisation Directive.

All the explanatory notes for the Act

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F630Words in s. 192(1)(a) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 28(a)
  2. F631S. 192(1)(d)(iia) inserted (6.4.2024) by Digital Economy Act 2010 (c. 24), ss. 20(2), 47(3)(a); S.I. 2023/792, art. 3(b)
  3. F632Words in s. 192(1)(d)(iv) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 28(b)
  4. F633S. 192(1)(e) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 43(2); S.I. 2014/416, art. 2(1)(f) (with Sch.)
  5. F634Words in s. 192(6)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 43(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

Modifications

  1. C39S. 192 applied (6.4.2023) by The Trade (Mobile Roaming) Regulations 2023 (S.I. 2023/214), regs. 1(b), 10(2)

Commencement

  1. I331S. 192 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. I332S. 192 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)