West Law Report

Tribunal not apt to appeal Ofcom licence awards

Posted in Times Law Report by mrkooenglish on December 20, 2008

From The TimesDecember 18, 2008

Tribunal not apt to appeal Ofcom licence awards
Court of Appeal
Published December 18, 2008
T-Mobile (UK) Ltd and Another v Office of Communications
Before Lord Justice Tuckey, Lord Justice Jacob and Sir William Aldous
Judgment December 12, 2008

An appeal from a decision of the Office of Communications (Ofcom) concerning the award of wireless telegraphy licences lay by way of judicial review and not to the Competition Appeal Tribunal.

The Court of Appeal so held in a reserved judgment in dismissing an appeal brought by T-Mobile (UK) Ltd and Telefonica O2 UK Ltd against the decision of the Competition Appeal Tribunal (Ms Vivien Rose, Mr Arthur Pryor and Mr Adam Scott) on July 10, 2008, that it did not have jurisdiction to hear an appeal against a decision of Ofcom, on April 4, 2008, to proceed with the auction of two wavebands.

Mr Michael Fordham, QC and Mr Merdith Pickford for T-Mobile; Lord Pannick, QC, Mr Thomas de la Mare and Mr Tom Richards for Telefonica; Miss Dinah Rose, QC, Mr Josh Holmes and Mr Ben Lask for Ofcom.

LORD JUSTICE JACOB said that Ofcom was the UK’s independent regulatory authority for electronic communications, services and networks. On April 4, 2008, following substantial consultation, it published its decisions for the award of wireless telegraphy licences in the spectrum bands: 2500-2690 MHz, 2010-2025MHz.

Both appellants objected to the manner of proceeding on the basis that they already held licences for other parts of the spectrum; that there was a possibility that they might lose some of the licences they now had for other parts of the spectrum pursuant to a decision to be made by Ofcom at some time in the future, called re-farming, so that it would be unfair to make them bid now for more licences when they would not know what they would need until the re-farming decision had been made.

The narrow point before their Lordships was whether those matters were to be raised by way of an appeal to the Competition Appeal Tribunal, or whether they should go by way of judicial review.

O2 and T-Mobile launched appeals to the Competition Appeal Tribunal. On July 10, 2008, that tribunal decided it did not have jurisdiction to hear the appeals.

Section 192 of the Communications Act 2003 provided: “(2) A person affected by a decision to which this section applies may appeal against it to the tribunal.”

Section 192(1)(a) provided that the section applied to a decision by Ofcom that was not a decision specified in Schedule 8.

Schedule 8 identified a mass of provisions of the 2003 Act and the Wireless Telegraphy Act 2006, all of which were not subject to appeal. The relevant provision was rule 40.

That included a decision given effect to by regulations under, inter alia, section 14 of the 2006 Act. Section 14 set out Ofcom’s power to make regulations which specified a procedure for bidding for licences.

The question therefore arose as to whether the award, or part of it, was a decision given effect to by regulations under section 14.

His Lordship accepted the arguments on behalf of Ofcom but above all he accepted the overriding contention about the nature of the matters excluded from the tribunal appeal jurisdiction. All the legislative powers of Ofcom to make regulations had been systematically included in Schedule 8.

Parliament did not intend legislative and quasi-legislative decisions to go to the tribunal. It was not the function of a statutory tribunal to impugn statutory instruments or regulations made pursuant to statutory powers.

Challenges to those were classically matters for judicial review and that was so in the case of the award.

Sir William Aldous and Lord Justice Tuckey agreed.

Solicitors: Lovells LLP; Ashurst LLP; Ms Eve Salomon, Southwark.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: