Ofcom published its new guidelines for the handling of regulatory disputes on 7 June 2011 (click here) (New Guidelines).

Ofcom deemed that it was necessary to review its existing guidelines that covered competition complaints and regulatory disputes which were published in 2004 (click here) to update them in light of:

  1. Ofcom’s experience in handling disputes;
  2. the increasing number of disputes being submitted to Ofcom; and
  3. the need for Ofcom to be cost-effective and efficient, in particular following the Government’s comprehensive spending review in October 2010.

Background

Ofcom therefore published a consultation in December 2010 (click here) proposing revisions to its guidance on regulatory disputes, with comments invited by 11 February 2011 (2010 Consultation).  It also published a statement following the 2010 Consultation (click here).

On 4 May 2011 the Secretary of State made The Electronic Communications and Wireless Telegraphy Regulations 2011 (Regulations) (click here) which implement the revisions to the European Framework on Electronic Communications as set out in the Better Regulation Directive (click here) as amended by schedule 1, sections 91-96 of the Regulations.  The Regulations came into force on 26 May 2011.

The New Guidelines therefore take into account both the responses to the 2010 Consultation and the changes that the Regulations make to the dispute resolution provisions in the Communications Act 2003 (2003 Act) (click here), pursuant to which Ofcom has a duty to resolve certain disputes in the communication sector.

The Main Changes

The main changes in the New Guidelines in respect to Ofcom’s dispute resolution powers and duties are:

  1. a discretionary power for Ofcom to intervene in network access disputes by inviting the parties to refer their dispute to Ofcom;
  2. a discretionary power to decide, taking into account Ofcom’s priorities and available resources at the time, whether or not it is appropriate to handle network access disputes between:  (a) different communications providers; (b)  a communications provider and a person who makes associated facilities available; and (c) different persons making such facilities available;  rather than the previous mandatory duty it had to handle and resolve such disputes (unless there are alternative means to resolve the dispute promptly and satisfactorily);
  3. a corresponding reduction of the number of types of disputes which Ofcom has a mandatory duty to resolve. These are now limited to: (a)  disputes between a communications provider and a person who is identified in a condition imposed on the communications provider by Ofcom[1]; and (b) relating to entitlements to network access; other disputes between communications providers relating to rights and obligations pursuant to the provisions of the 2003 Act which relate to networks, services and radio spectrum [2];
  4. the power to seek an opinion from the Body of European Regulators for Electronic Communications (BEREC);
  5. the requirement for Ofcom to coordinate its activities with other national regulatory authorities (NRAs) involved in a cross-border dispute;
  6. a discretionary power for Ofcom to recover its costs in resolving disputes from disputing parties (on which Ofcom is expected to provide further guidance); and
  7. the power for Ofcom to impose fines of up to £2 million (increased from £50,000 as a result of the Authorisation Directive (click here)) for failure to comply with an information gathering request.

These changes will apply to all disputes referred to Ofcom for resolution where the enquiry phase begins after 26 May 2011, when the changes became effective.

Timing and Early Party Involvement

The New Guidelines also contain changes to the timing and mechanism of processes involved in a dispute resolution.

For example, Ofcom expects the involvement of the parties at an early stage, normally including a joint Enquiry Phase Meeting (EPM), to confirm the agreed and disputed facts and confirm the scope of the dispute, before Ofcom decides to take on the dispute.

This increased clarity and transparency may assist in the efficient resolution of a dispute within the four-month deadline, which remains unchanged.

The New Guidelines take effect from 7 June 2011 and will apply to all disputes accepted by Ofcom for resolution from this date.

Next Steps

Ofcom intends to update the New Guidelines, as and when required, to reflect further changes to Ofcom’s duties, powers and procedures.

Ofcom also intends to publish a further guidance, although it is not clear when, as to the types of dispute in which Ofcom may seek to recover its costs and how it will calculate them.

It is therefore advisable to check the latest guidance if you seek to bring, or are otherwise involved in, a regulatory dispute.