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Introduction

1.1 This report provides a detailed analysis of the work of Ofcom’s Investigations Programme during the period between 1 October 2007 and 31 March 2008 and compares this activity with that for the preceding period between 1 April and 30 September 2007. Unless stated, it reflects the position as at 31 March 2008.

Ofcom’s roles and duties

1.2 Ofcom has a number of roles and duties relating to identifying and responding to conduct which is unlawful or which is anti-competitive, and in resolving disputes. Responding to complaints or disputes filed by market participants - or in some instances by consumers - the Investigations Programme ensures that Ofcom responds quickly, firmly and effectively to breaches of regulatory rules or relevant law and is able to act effectively in resolving disputes.

1.3 As a sectoral regulator, under the Communications Act, Ofcom has responsibilities to enforce ex ante rules (for example, rules imposed on providers with significant market power, and rules imposed on all providers as general conditions) and to determine disputes between providers of electronic communications networks and services. Ofcom also has responsibilities under the Broadcasting Acts to enforce ex ante rules.

1.4 As a national competition authority, Ofcom is empowered to enforce competition law concurrently with the OFT and acts as the competition enforcement authority for the communications sector. Ofcom’s role under competition law includes:

• enforcing the Chapter I and Chapter II prohibitions of the Competition Act 1998;
• enforcing Articles 81 and 82 of the EC Treaty; and
• investigating markets and making references under the Enterprise Act 2002.

1.5 Ofcom also has a role to enforce consumer protection law for the communications sector. Whilst the primary role for handling individual consumer complaints rests with the Ofcom Advisory Team (OAT), Ofcom’s Investigations Programme conducts investigations under:

• The Communications Act 2003;
• Part 8 of the Enterprise Act 2002; and
• The Unfair Terms in Consumer Contracts Regulations 1999 (and other consumer protection legislation);

1.6 This enforcement activity is carried out by Ofcom’s Investigations Team, which sits within the Competition Group. The role of the Investigations Team is to identify any areas of concern regarding Communications Providers’ compliance with rules relating to consumers’ rights and competition between communications companies. If an area of concern relating to these rules is identified, either by Ofcom itself or by complaints made to Ofcom by customers, Communications Providers or other relevant organisations, the Investigations Team will evaluate the evidence and, if necessary, take enforcement action against the relevant company.

1.7 In July 2004 Ofcom published Guidelines setting out its approach when investigating competition complaints and resolving disputes between companies in the communications sector. The Guidelines provide companies with a clear, easy to follow tool-kit explaining how both small and large companies should prepare the evidence required before Ofcom will take forward a formal investigation.

1.8 In July 2006 Ofcom issued revised Enforcement Guidelines for consultation.[^(-1-)] The revised guidelines reflect the outcome of Ofcom’s internal review of its investigations function and Ofcom’s growing body of practice and established decisions in this area, as well as the developing jurisprudence of the Competition Appeals Tribunal. The revised guidelines set out a number of changes to Ofcom’s existing processes for the handling of competition complaints, and complaints and disputes concerning regulatory rules, including the following:

• More information about Ofcom’s approach to consumer protection;
• Greater clarity about the handling of investigations, including the factors that Ofcom will consider in deciding whether to conduct an investigation;
• Changes to Ofcom’s timing for the handling of competition law investigations; and
• Information about Ofcom’s approach to enforcing BT’s Undertakings.

1.9 Ofcom expects to publish a further document in relation to the Enforcement Guidelines in due course.

1.10 Ofcom’s approach continues to seek to reduce the costs to industry of Ofcom’s work and to focus scarce resources to deliver the best outcomes for citizens and consumers. Unsubstantiated complaints, or those which could be better resolved elsewhere, are dealt with quickly at an early stage. This allows Ofcom to focus on the most serious allegations inhibiting fair and effective competition in the sector, or in relation to the most serious cases of harm to consumers.

1.11 Ofcom has published seven previous six-monthly reports, setting out in detail the work of the Investigations Programme. This, the eighth report, covers the period between 1 October 2007 and 31 March 2008 and compares the level of activity with that during the preceding six months.

Footnotes:

1.-Available at http://www.ofcom.org.uk/consult/condocs/enforcement/enforcement.pdf

• Ofcom’s Investigations Programme [pdf]
  Report on activity between 1 October 2007 and 31 March 2008

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