Commentary on Sections Part 3: Television and Radio Services Chapter 4: Regulatory Provisions Section 317: Exercise of Broadcasting Act powers for a competition purpose
668.This section applies to OFCOM’s Broadcasting Act powers, as defined in subsection (1). The effect of subsections (2) and (3) is that OFCOM are not to use Broadcasting Act powers for a competition purpose (as defined in subsection (9)), where they consider that a more appropriate way of proceeding would be through the use of their general competition powers under the Competition Act 1998.
	*OFCOM’s Broadcasting Act powers are their powers under Part 3 of this Act and under the Broadcasting Acts to impose or vary licence conditions, their powers to give approvals or directions for the purposes of such conditions and their powers to enforce such conditions.
669.Subsections (4) and (5) require that where OFCOM decide to exercise their Broadcasting Act powers for a competition purpose, they must notify that decision to persons likely to be affected by it, and the notification must include a description of the rights of appeal that apply. Subsection (6) provides that where OFCOM have considered that the exercise of their Broadcasting Act powers for a competition purpose is the more appropriate way to proceed, the route of appeal for any person affected by any decisions under these powers shall be to the Competition Appeal Tribunal. Subsection (8) limits the jurisdiction of the Tribunal in any such appeal, so as to exclude questions as to whether OFCOM have complied with subsections (2) and (3): those questions can, though, be challenged by way of judicial review. Subsection (10) provides that this section does not apply to the exercise by OFCOM of their powers in relation to Channel 3 networking arrangements under sections 290 to 294 and Schedule 11.