Ofcom decision appeals process will be streamlined, Government says

In the UK telecoms companies can appeal against some decisions taken by Ofcom, the telecoms regulator, under the provisions of the Communications Act, including on issues about price control. The Act states that the Competition Appeals Tribunal (CAT) "shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal".

The Government has proposed changes to the wording of the Communications Act in a way that it said will alter how the appeals system works. The Act transposes the EU's Electronic Communications Framework Directive, which sets out rules on telecom companies' rights to appeal against decisions made by national regulators, into UK law. The Directive states that member states must ensure "the merits of the case are duly taken into account" in hearings.

The "standard of review" that the Act currently provides for is greater than what EU laws require, the Government consultation said.

"The current transposition [of the Directive] has been interpreted by some appellants as requiring a full rehearing of the case," the Department for Culture Media and Sport (DCMS) consultation (48-page / 270KB PDF) said.

"Some contend that the UK transposition intentionally goes beyond the requirements of [the Directive] and provides for a very high standard of appeal. In practice too, appeals before the CAT are considered by many to have become a full rehearing, with full consideration and interrogation of Ofcom’s evidence, analysis and decision. This results in a lengthy appeals process, in which decisions lag behind the pace of technological change and market development," the consultation said.

The Government has proposed altering the wording of the Act so that the CAT "in deciding the appeal" would have to "apply the same principles as would be applied by a court on an application for judicial review, ensuring that the merits of the case are duly taken into account".

In the UK judicial reviews are reviews conducted by the courts into the way in which a decision by a public body has been made. The High Court must give permission for a judicial review to take place. In deciding whether to allow a judicial review to proceed the Court will determine whether applications were made promptly enough, whether applicants have a sufficient interest in a case for it to be reviewed and whether applications are concerned with public law.

Changing the wording of the Act will mean that the CAT will be able to make appeals decisions without having to examine "the merits" of every case in every case, the Government said.

"The Government proposes to amend the appeals provisions in the Communications Act 2003 by removing the requirement for the case to be decided on the merits and instead requiring the CAT to decide the case by applying the same principles that would be applied by a court on an application for judicial review, ensuring that the merits of the case are duly taken into account," the DCMS consultation said.

"This change will ensure that the requirements of ... the Directive are fully met but not exceeded, by importing verbatim the requirement to take due account of the merits, while also ensuring that stakeholder’s rights of appeal are fully protected ... Government anticipates that changing the standard of review to that required by [the Directive] will result in appeals which are more focussed on material points, with a corresponding reduction in the need for and/ or scope of oral examination and cross examination of factual and expert witnesses, leading to shorter hearings and more focussed pleadings than is presently the case," the DCMS consultation said.

The Government's consultation is open to responses until 14 October.