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Ofcom’s Approach to Complaints and Disputes

July 2004

Summary

1. Ofcom, as sectoral regulator for the communications sector, has concurrent powers under the Competition Act 1998 ('the Competition Act') to deal with anti-competitive behaviour in broadcasting, spectrum and telecommunications. Ofcom also has the power to apply Article 81 and Article 82 of the EC Treaty in addition to the Chapter I and Chapter II prohibitions of the Competition Act.

2. Under the Communications Act 2003 ('the Communications Act') and the Broadcasting Acts, Ofcom has powers to investigate complaints about breaches of conditions imposed on providers and a duty to resolve disputes relating to conditions imposed under the EU Directives ^(-1-).

3. These guidelines set out Ofcom's processes and submission requirements for complaints about anti-competitive behaviour, breaches of certain ex ante conditions and disputes. In this document, 'dispute' means a matter that Ofcom may resolve by using its dispute resolution powers under section 190 of the Communications Act. These powers are limited in scope and do not cover all of the subject areas within Ofcom's remit. Issues that do not fall within Ofcom's dispute resolution powers may still be referred to Ofcom as a complaint.

4. These guidelines are intended to help businesses and their advisers to understand Ofcom's processes and how best to present a case so that Ofcom can deal with it in an efficient manner. These guidelines are not binding on Ofcom. However, where Ofcom departs from these guidelines it expects to give reasons for doing so.

5. Section 2 sets out Ofcom's powers and duties and discusses the difference between a complaint and a dispute. Section 3 sets out Ofcom's procedures for handling complaints and disputes.

6. Ofcom's required format for submitting complaints is set out in Annex 1. Ofcom's required format for submitting a request for Ofcom to resolve a dispute is set out in Annex 2.

7. Ofcom published these guidelines in draft on 6 February 2004 and invited comments from stakeholders by 19 March. Ofcom received a number of responses, which it has taken into account in finalising these guidelines.

What these guidelines do not cover

8. These guidelines do not cover complaints about television and radio programmes, EPG content or spectrum interference. They do not cover consumer complaints about communications providers, including complaints about unfair contract terms. Details of Ofcom's processes for dealing with other types of complaints are available from Ofcom's website (www.ofcom.org.uk) under 'Complain to Ofcom'.

9. Ofcom recently announced proposals to transfer handling of complaints about broadcast advertising content to a new system to be established under the umbrella of the Advertising Standards Authority (ASA).

10. Ofcom recently announced the establishment of a new independent office, the Telecommunications Adjudicator. The role of the adjudicator is to help accelerate the implementation and delivery of fit for purpose and appropriately industrialised products and processes for LLU. Where a dispute about LLU products and processes is submitted to Ofcom under section 185 of the Communications Act and the parties have not made use of the Adjudicator Scheme then Ofcom may consider that alternative opportunities to resolve the dispute have not been fully exhausted.

A summary of the guidelines

11. The key points of Ofcom's procedures are summarised below:

Evidence is required before Ofcom will formally investigate a complaint or resolve a dispute

Investigations into allegations of anti-competitive behaviour impose significant costs on Ofcom, on the target of the complaint and often on other industry players who are required by Ofcom to provide evidence and information. A requirement to provide evidence to back up allegations will enable Ofcom to identify those complaints that raise real concerns about anti-competitive behaviour and allow Ofcom to target its resources on the most important issues.

Table 1: Summary of submission requirements for disputes and complaints
Type of investigation	Submission requirements
Disputes	a clearly defined scope evidence of failed commercial negotiation a statement by an officer of the company, preferably the CEO, that best endeavours have been used to resolve the dispute through commercial negotiation
Complaints	clear identification of the relevant ex ante obligation or abuse under the Competition Act factual evidence supporting the allegation made a statement by an officer of the company, preferably the CEO, that the information provided to Ofcom in the complaint submission is correct and complete

13. In these guidelines, Ofcom has deliberately sought to set a minimum standard that all submissions must meet before Ofcom will open an investigation. Ofcom will not accept a dispute without evidence of the failure of meaningful commercial negotiations. Ofcom will not accept a complaint without evidence to back up the allegation. Ofcom will require an officer, preferably the Chief Executive Officer, of the company making the submission to verify that the company has taken due care in checking that the evidence submitted is correct and complete and (in the case of a dispute) that best endeavours have been used to resolve the dispute through commercial negotiation.

14. Ofcom expects large, well resourced companies to make adequate submissions. Ofcom will reject inadequate submissions and will enforce the required submission standards. However, Ofcom will devote resources to assisting small businesses, new entrants or those companies without experience of bringing complaints to competition authorities or the legacy regulators that Ofcom replaced. Ofcom may agree to waive the submission requirements in very special circumstances e.g. when the complainant is an individual consumer.

Ofcom's timescales for dealing with complaints and disputes

15. Once Ofcom has accepted a complaint or dispute it will work to resolve the issue as fast as possible. The deadlines below are the maximum deadlines that Ofcom will impose. If Ofcom exceeds these deadlines it will publish the reason for the delay.

Table 2: Summary of targets for different types of investigations
Type of investigation	Deadline
Disputes	Four months
Complaints	Six months where no grounds for action decision is made Twelve months for an infringement decision
Breaches of ex ante conditions	Four months for a closure statement or notification that a condition has been breached

Declining to resolve a dispute because alternatives to regulatory intervention exist

16. Ofcom will be reluctant to resolve a dispute unless one party is dominant and/or failure to agree would result in detriment to competition or consumers. In the absence of these circumstances, Ofcom may consider that alternative mechanisms for dispute resolution would be more appropriate, and may decline to resolve a dispute on that basis.

Ofcom will fix the scope of a dispute and check it understands complaints

17. Ofcom will not open a dispute until the scope of the dispute is clear. Once the scope is established, Ofcom does not expect to deviate from this scope. Ofcom will check it understands complaints and will normally restrict the scope of an investigation to the complainant's original submission. However, where Ofcom uncovers indications of anti-competitive behaviour, it will not consider itself bound by the scope of a complaint.

Ofcom will use formal powers to collect information

18. Accurate information, provided in a timely manner, is critical to efficient investigations. Delays in the provision of information can have a significant impact on overall timescales and, in the case of an investigation into anti-competitive behaviour, can significantly disadvantage one or more of the parties involved. Ofcom will use its formal powers to collect the information it needs to pursue investigations and will take enforcement action against companies that fail to respond to formal requests for information.

Consulting on the outcome of disputes

19. Ofcom will only consult on the outcome of a dispute when the issue is of interest to a large number of stakeholders. In all other cases, consultation will be restricted to the parties involved in the dispute.