Monckton Chambers Barristers See Off Challenge To Ofcom

13 Aug 2008

The High Court has dismissed a challenge to Ofcom’s powers to represent British Overseas Territories in respect of satellite filings in R(Government of Bermuda) v Ofcom [2008] EWHC 2009 (Admin).

The right to broadcast via a satellite into any particular territory is governed by the rules of the International Telecommunications Union (“ITU”). Those rules have the status of an international treaty. Under the Communications Act 2003, and directions made by the Secretary of State, Ofcom represents the United Kingdom, the Isle of Man and Bermuda (together with a number of other territories) before the ITU. Bermuda challenged a decision by Ofcom to make a filing on behalf of the Isle of Man that Bermuda argued would cause “harmful interference” within its territory. Ofcom rejected that contention by application of the standards that the ITU itself applies.

The central legal issue raised by Bermuda was whether Ofcom’s duty to “represent” Bermuda permitted it to make a filing on behalf of the Isle of Man that was contrary to Bermuda’s wishes, and accordingly, whether Ofcom had power to adjudicate in the dispute between Bermuda and the Isle of Man. Bermuda contended that Ofcom was obliged to refer its concerns to the ITU. Goldring J rejected the claim. His Lordship concluded that Ofcom was required to resolve a conflict between the Isle of Man and Bermuda, both of which it represented. It was necessary or incidental to Ofcom’s duty to represent both territories that it had the power to resolve the dispute between Bermuda and the Isle of Man, and that its approach to that dispute was lawful.

Christopher Vajda QC and Tim Ward acted for Ofcom.

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Tim Ward QC