Textual Amendments
F1Pt. 3A inserted (24.5.2024 for specified purposes, 23.8.2024 except for the insertion of ss. 362AA(1)(a)(c)(5)(8), 362AJ, 362AK, 362AO) by Media Act 2024 (c. 15), ss. 28(1), 55(1)(a); S.I. 2024/858, reg. 2(1)(h) (with reg. 2(2))
(1)This section applies in the case of a dispute between the provider of a designated internet programme service and the provider of a regulated television selection service about—
(a)the arrangements that should be made between them in order to give effect to the prominence duties that relate to them, or
(b)the operation of arrangements made between them in order to give effect to those duties.
(2)For the purposes of subsection (1)—
(a)the prominence duties relating to the provider of a designated internet programme service are—
(i)in the case of a provider other than the BBC, the duties under section 362AJ;
(ii)in the case of the BBC, any duties of the BBC under the BBC Charter and Agreement that are comparable to the duties of other providers under section 362AJ;
(b)the prominence duties relating to the provider of a regulated television selection service are the duties under sections 362AK and 362AO(1).
(3)Any one or more of the parties to the dispute may refer it to OFCOM but only if (and when) there is no realistic prospect of resolving the dispute without referring it.
(4)OFCOM may invite any one or more of the parties to the dispute to make a reference under subsection (3).
(5)OFCOM—
(a)may impose requirements about the manner in which a reference must be made by publishing a notice setting out those requirements,
(b)may withdraw or modify any requirements that have been imposed by publishing a further notice, and
(c)in exercising their powers under paragraph (a) or (b), may make different provision for different cases.
(6)OFCOM may publish a notice under subsection (5) in such ways as they consider appropriate for bringing the notice to the attention of those who, in their opinion, are likely to be affected by it.
(1)This section applies where—
(a)a dispute is referred to OFCOM under section 362AT(3), and
(b)any requirements imposed by OFCOM under section 362AT(5) are met in relation to the reference.
(2)OFCOM must decide whether or not it is appropriate for them to handle the dispute.
(3)Subsection (4) applies where—
(a)the dispute is of the kind described in section 362AT(1)(a) (disputes between the provider of a designated internet programme service and the provider of a regulated television selection service about the arrangements that should be made between them for the purposes of their prominence duties), and
(b)unless the dispute is resolved, it is highly likely that the designated internet programme service will—
(i)not be included in the regulated television selection service, or
(ii)not be given the appropriate degree of prominence within it.
(4)OFCOM must decide that it is appropriate for them to handle the dispute unless they consider—
(a)that there are alternative means available for resolving the dispute,
(b)that a resolution by those means is likely to result in an outcome that is consistent with the agreement objectives, and
(c)that a prompt and satisfactory resolution of the dispute is likely if those alternative means are used.
(5)As soon as reasonably practicable after OFCOM have decided whether or not it is appropriate for them to handle the dispute, they must inform each of the parties to the dispute of—
(a)their decision and the date on which it was made, and
(b)their reasons for it.
(6)Where OFCOM decide that it is not appropriate for them to handle the dispute, the dispute may subsequently be referred back to OFCOM by one or more of the parties if—
(a)the parties have used alternative means for resolving the dispute but it has not been resolved within a reasonable period of time, or
(b)the parties have not used alternative means for resolving the dispute but OFCOM consider that there is a satisfactory explanation for that.
(1)This section applies where—
(a)OFCOM decide under section 362AU(2) whether or not it is appropriate for them to handle a dispute, or
(b)a dispute is referred back to OFCOM under section 362AU(6).
(2)OFCOM may do one or more of the following—
(a)make an interim declaration setting out the rights and obligations of the parties to the dispute;
(b)give an interim direction fixing the terms or conditions of transactions between the parties to the dispute;
(c)give an interim direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM.
(3)OFCOM must exercise their powers under subsection (2) in the way that seems to them to be most appropriate in the light of the agreement objectives.
(4)Before exercising their powers under subsection (2), OFCOM must—
(a)give the parties to the dispute an opportunity to make representations about the exercise of those powers, and
(b)consider those representations.
(5)In other respects, the procedure to be followed by OFCOM in connection with the exercise of their powers under subsection (2) is to be the procedure that OFCOM consider appropriate.
(6)In the case of a dispute referred back to OFCOM under section 362AU(6), OFCOM may, in exercising their powers under subsection (2), take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means.
(7)OFCOM must withdraw an interim declaration or an interim direction if requested to do so by the parties to the dispute.
(8)OFCOM may withdraw an interim declaration or an interim direction otherwise than at the request of the parties to the dispute if they consider that it is appropriate to do so in the light of the agreement objectives.
(9)An interim declaration or an interim direction binds the parties to the dispute (unless withdrawn by OFCOM or ceasing to have effect under section 362AY(4)).
(10)In this section—
(a)“an interim declaration” means a declaration that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY(4));
(b)“an interim direction” means a direction that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY(4)).
(1)This section applies where—
(a)OFCOM decide under section 362AU(2) that it is appropriate for them to handle a dispute, or
(b)a dispute is referred back to OFCOM under section 362AU(6).
(2)OFCOM must—
(a)consider the dispute, and
(b)make a determination for resolving it.
(3)The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.
(4)In the case of a dispute referred back to OFCOM under section 362AU(6), that procedure may involve allowing the continuation of a procedure that has already begun for resolving the dispute by alternative means.
(5)Unless there are exceptional circumstances, OFCOM must make their determination before the end of the period of four months beginning with—
(a)where OFCOM decide under section 362AU(2) that it is appropriate for them to handle the dispute, the day on which they make that decision;
(b)where the dispute is referred back to OFCOM under section 362AU(6), the day on which it is referred back.
(6)Where it is practicable for OFCOM to make their determination before the end of the period of four months referred to in subsection (5), they must make it as soon in that period as is practicable.
(7)The requirements of subsections (5) and (6) are subject to section 362AY(4).
(8)OFCOM must—
(a)send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute, and
(b)publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.
(9)OFCOM may fulfil their duty under subsection (8)(b) in such ways as they consider appropriate for bringing the material that they consider it appropriate to publish to the attention of members of the public.
(1)This section applies where OFCOM make a determination for resolving a dispute under section 362AW(2).
(2)OFCOM may do one or more of the following—
(a)make a declaration setting out the rights and obligations of the parties to the dispute;
(b)give a direction fixing the terms or conditions of transactions between the parties to the dispute;
(c)give a direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM;
(d)for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties to the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.
(3)OFCOM must exercise their powers under subsection (2) in the way that they consider to be the most appropriate for meeting the agreement objectives.
(4)In the case of a dispute referred back to OFCOM under section 362AU(6)—
(a)OFCOM may, in making their determination, take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means, and
(b)the determination made by OFCOM may include provision ratifying such decisions.
(5)Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute—
(a)to make payments to another party to the dispute in respect of costs and expenses incurred by that other party in consequence of the reference of the dispute to OFCOM or in connection with it;
(b)to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute.
(6)OFCOM may determine—
(a)the amount of any costs or expenses required to be paid under subsection (5)(a) or (b), and
(b)when those costs or expenses are to be paid.
(7)OFCOM may not require a party to the dispute to make payments to another party or to OFCOM under subsection (5) unless they have considered—
(a)the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempts have been made to resolve the dispute), and
(b)whether OFCOM have made a decision in the party’s favour in respect of the whole or a part of the dispute.
(8)A determination made by OFCOM for resolving a dispute referred to them under section 362AT(3), or referred back to them under section 362AU(6), binds the parties to the dispute.
(1)This section applies where—
(a)a dispute is referred to OFCOM under section 362AT(3), or
(b)a dispute is referred back to OFCOM under section 362AU(6).
(2)The reference, or reference back, does not prevent the person making it, the other party to the dispute, OFCOM or any other person from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.
(3)The reference, or reference back, also does not prevent OFCOM from—
(a)giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of an obligation imposed by or under an enactment;
(b)exercising any of their powers under any enactment in relation to a contravention of an obligation imposed by or under an enactment;
(c)taking any other step in preparation for, or with a view to, doing anything mentioned in the preceding paragraphs.
(4)If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—
(a)OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires,
(b)the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make a determination, and
(c)any interim declaration or interim direction made or given by OFCOM under section 362AV(2) ceases to have effect.
(5)In this section, “legal proceedings” means civil or criminal proceedings in or before a court.
(6)Subsection (2) is subject to—
(a)section 362AX (8), and
(b)any agreement to the contrary binding the parties in dispute.]