Ofcom are consulting on a proposed revision of the Regulatory Enforcement Guidelines to include new enforcement powers and make them easier to understand and follow. 

The Regulatory Enforcement Guidelines set out how Ofcom will approach the enforcement of regulatory requirements and consumer protection law relating to the industries for which we are responsible.

What Ofcom are proposing – in brief  

Expanding the Regulatory Enforcement Guidelines to cover new enforcement powers, proposing that updated guidelines will apply to Ofcom’s enforcement activity in three new areas: 

• obligations placed on video sharing platforms under Part 4B of the Communications Act 2003;
• requirements imposed on operators of essential services for the digital infrastructure subsector under the Network and Information Systems Regulations 2018; and
• the revised framework for protecting the security and resilience of telecoms networks and services in the UK as set out in the Telecommunications (Security) Act 2021.

Restructuring the Regulatory Enforcement Guidelines to make them easier to follow.  

Ofcom propose to move much of the material previously contained in technical and legal supporting footnotes to regime-specific annexes, to make it easier to understand the application of the range of Ofcom’s different enforcement powers. 

The section on settlement has also been simplified, as Ofcom consider that this process can be set out more clearly. Updating and clarifying the text of the Regulatory Enforcement Guidelines to reflect Ofcom’s experience of running investigations in practice. The breadth of Ofcom’s regulatory duties means that the appropriate procedural approach can vary from case to case. 

Ofcom propose amendments to the guidelines intended to: 

• recognise where the wider range of regulatory powers places different procedural obligations on Ofcom;
• reflect their day-to-day experience of enforcement investigations; and
• remove repetition and clarify the procedural steps they intend to follow.

Including information about civil liability for a breach of regulatory requirements. In certain circumstances, persons who sustain loss or damage as a result of a breach of regulatory requirements imposed by Ofcom may bring proceedings directly against the relevant company, but must first gain Ofcom’s consent to do so. Ofcom propose to include in the guidelines an explanation of the process for applying for consent and how Ofcom will approach such requests.

Questions asked in this consultation (with the proposed FCS response in red)

Question 1: Do you have any comments on our proposed approach to including the enforcement of the VSP (video sharing platforms) framework, OES (operators of essential services) obligations and the TSA (telecom security act) in the Regulatory Enforcement Guidelines? FCS would encourage Ofcom to ensure that regulation and associated enforcement is targeted at the capability provider who is accountable and has the power related to any action. This is often not the end customer provider or reseller but providers further back in the value chain.

Question 2: Do you have any comments on the proposed addition of regime-specific annexes? FCS supports the proposed regime specific annexes, which should make it easier to navigate to and access the required guidance. 

Question 3: Do you have any comments on the proposed redrafting of the settlement section of the Regulatory Enforcement Guidelines? FCS supports the proposed simplification of the section on settlement.

Question 4: Do you have any comments on the proposed updates and clarifications to the text in the Regulatory Enforcement Guidelines? FCS understands the different case by case variations and supports this Ofcom initiative to clarify its regulatory powers and the differing procedural obligations.

Question 5: Do you have any comments on Ofcom’s proposed guidance on how to apply for consent to bring civil proceedings against companies in breach of relevant regulatory requirements? FCS support the proposed inclusion in the guidelines of an explanation of the process for applying for consent and how Ofcom will approach such requests.

Question 6: Do you have any other comments on the proposed changes to the Regulatory Enforcement Guidelines?  FCS would like to invite Ofcom to engage with and talk to our membership about its enforcement and the changing enforcement environment.