Policy background Miscellaneous Ofcom appeals
Sections 192 to 196 of the 2003 Act set out the rights of appeal against the majority of Ofcom’s decisions regarding the regulation of electronic communications networks, services and spectrum. These provisions also apply to appeals against Ofcom’s decisions in respect of radio and television regulation that are made under powers in the Broadcasting Act 1990, the Broadcasting Act 1996 and Part 3 of the 2003 Act for a competition purpose. These appeals are heard by the Competition Appeal Tribunal ("the CAT"), which the 2003 Act requires to carry out a review of Ofcom’s decisions "on the merits". In the case of appeals against price control decisions, the CAT must refer the case to the Competition and Markets Authority ("the CMA") and then decide the matter in accordance with the determination of the CMA.
	The government believes that an "on the merits" standard of review is overly burdensome. A 2013 analysis by the Department for Business, Innovation & Skills found that the average length of an appeal to the CAT reviewed "on the merits" was 11 months. The high costs of continuing litigation and subsequent delays in the regulatory regime can hinder effective regulation that must be able to keep pace with technological advances in the sector. The CAT itself has stressed "an appeal before the Tribunal is not a de novo hearing" (BT v Ofcom [2015] CAT 6). The government wanted to ensure that this is clear in legislation. A judicial review standard will ensure that appellants can still challenge Ofcom’s decisions, but litigants will no longer be able to seek complete reappraisals of Ofcom’s fair decision making.
	Regulation of the telecommunications sector in the United Kingdom must comply with the Framework Directive (2002/21/EC) for electronic communications. Article 4 of the Framework Directive requires Member States to provide a right of appeal for any user or network or service provider that is affected by a decision of the national regulatory authority to an appeal body. Member States must ensure that "the merits of the case are duly taken into account and that there is an effective appeal mechanism". The government’s view is that a requirement for the CAT to decide appeals "on the merits" goes further than is required by Article 4, and that a judicial review standard of appeal is appropriate. The intensity of judicial review is flexible, dependent on the circumstances, and can therefore duly take into account the merits of the case as required by the Framework Directive.
	There is precedent for regulatory appeals to be decided on a judicial review standard. Section 120 of the Enterprise Act 2002 provides a right of review to the CAT of certain decisions of Ofcom, the Secretary of State or the Competition and Markets Authority in relation to mergers. The CAT is required to determine the application by applying the same principles as would be applied by a court on an application for judicial review. Similarly section 57 of the Postal Services Act 2011 provides for an appeal against Ofcom decisions on a judicial review standard.
	There have been three consultations on this issue since 2010. Most recently, in June 2013 the Department for Business, Innovation & Skills published a consultation entitled Streamlining Regulatory and Competition Appeals, consulting on a range of reforms to the regulatory system, including the option of changing the basis of appeals under the 2003 Act to a judicial review standard. The Act implements this reform.