Scope of Adjudicator Role

The Adjudicator is not responsible for the prior approval of the charges for individual contracts or the information strategy or the valuation of any transmission assets offered for sale by Arqiva (pursuant to paragraph 6 of the Undertakings).

The primary role of the Adjudicator is to determine disputes between Arqiva and customers, or prospective customers, arising with respect to:

  • amendments to Existing Transmission Agreements;
  • new agreements for bundled Transmission Services(-1-);
  • new agreements for the provision of Network Access; and
  • the sale of transmission assets;

The Adjudicator also undertakes the following functions:

  • issues and maintains guidance on the setting of charges for NA and Transmission Services;
  • determines whether the publication of certain reference offers is appropriate/necessary (pursuant to paragraphs 10 and 12 of the Undertakings);
  • appointment of a DSO auditor; and
  • provides periodic reports to Ofcom and the Office of Fair Trading.


The Adjudicator only becomes involved in a dispute if there is clear evidence that commercial negotiations have been undertaken in good faith but failed. As a result, customers bringing a dispute to the Adjudicator should be able to demonstrate that all reasonable steps have been taken to engage in commercial negotiations and to bilaterally resolve the dispute. In particular, the customer should be able to provide documentary evidence of any commercial negotiations. Where no such documentary evidence exists, for example due to a refusal to negotiate or unreasonable attempts to stall negotiations, other evidence showing this refusal to negotiate or stall could be considered sufficient.

The two main potential areas where disputes might arise and where the Adjudicator will make a determination are:

  • failure to provide Transmission Services or Network Access that is consistent with FRND and cost orientation principles (covering both prices charged and other T&Cs) and
  • treatment of sale of transmission assets;

In reaching decisions on disputes the Adjudicator will (a) have regard to Ofcom’s statutory duties; (b) take into account Ofcom guidance; (c) take into account relevant sectoral decisions and (d) act with a view to securing consistency with the sectoral regime.


The Adjudicator will provide two main types of guidance:

  1. relating to the setting of charges for Transmission Services and Network Access that are consistent with the FRND and cost orientation principles
  2. more general guidance on matters of process, such as:
  • dispute procedures
  • the process for reaching a decision
  • other FAQs

The Adjudicator has the discretion to decide what guidance is needed and the level of detail of such guidance. However, in preparing and updating his guidance the
Adjudicator will consult Arqiva and other parties, subject to the discretion of the Adjudicator, prior to issuing guidance.

The Adjudicator will provide guidance as soon as reasonably practicable after the Commencement Date, and has the flexibility to update it over time as he sees necessary.

The Adjudicator will also provide ad hoc informal guidance from time to time, to customers and Arqiva in relation to the application of the undertakings, its own published guidance and potential areas of dispute etc.

Reporting to the OFT and Ofcom

The Adjudicator will provide both the OFT and Ofcom with a report every three months or at such frequency as required by Ofcom and the OFT and an annual report, setting out:

  • his determinations in relation to any disputes
  • his views about the operation of the Undertakings, the Adjudication Scheme and Adjudication Rules together with any recommendations
  • his views about the performance of Arqiva in complying with the Undertakings, the Adjudication Scheme and Adjudication Rules
  • a summary of issues of guidance he has provided
  • any other relevant matters and information that he may think appropriate

Regulatory Accounting and Auditing DSO Costs

Arqiva has undertaken to maintain accounting records detailing the costs and assets used in the MTS and NA businesses. This information will be externally audited and provided to the Adjudicator. Furthermore the adjudicator will appoint an independent auditor to audit the costs attributed each year to DSO to ensure that the applicable charges under the High Power agreements are correct.

Publication of Reference Offers

Arqiva are obliged to prepare and publish a number of Reference Offers. These include:

  • for terrestrial television following a written notice from Ofcom of the intention to hold a relevant spectrum Auction
  • For National radio following the advertisement of a new licence
  • For sub-National radio following the advertisement from Ofcom or direction from the Adjudicator
  • A framework Reference Offer for Network Access Radio

The Adjudicator can direct the publication of a new or revised offer as he sees necessary.

Information Security Strategy

Where Arqiva holds confidential information from a customer or prospective customer, it is important that it remains confidential and does not pass to other parts of the company where it could be used for commercial advantage. To that end, the undertakings require Arqiva to produce and comply with an Information Security Strategy.

Cost-oriented and Transparent

Arqiva are obliged, and the Adjudicator will ensure, that new commercial offers within the scope of the Undertakings are derived from cost in line with any Guidance and provide transparency to allow a customer a reasonable understanding of the basis of calculation of the charges.

Nature of Adjudicator’s Decision

The Adjudicator has the flexibility to determine both the scope of the dispute and the level of detail or prescriptiveness of his determination. For example, depending upon the circumstances of each particular case, the Adjudicator could seek to make a detailed determination on each aspect of the contract in dispute. Alternatively, if the scope of the dispute is likely to be more general than specific, the Adjudicator could provide less prescriptive guidance to the parties on the range of appropriate prices relative to a range of terms and conditions, and therefore allow the parties the flexibility to negotiate the exact details of the contract with reference to his determination.

In taking his decision, the Adjudicator can have regard to, but will not be bound by, any terms and conditions (including price) arising from the commercial negotiations undertaken prior to the dispute being notified. It is, for example, open to the Adjudicator to make a decision which would leave either Arqiva or the customer worse off than the position established under commercial negotiations prior to the notification of the dispute. Any other approach would undermine the efficacy of the Adjudication regime as every customer would always be under a clear incentive to pursue a dispute.

Following a decision by the Adjudicator, customers can still continue negotiations with Arqiva on commercial terms and to enter into a new contract that is different to that brought to the Adjudicator as the subject matter of a dispute. Disputes about this new contract could be brought to the Adjudicator and be considered a new dispute.

Information Gathering

The Adjudicator may request whatever information he reasonably requires from both Arqiva and the customer in order to perform tasks described in the undertakings.

The Adjudicator has the power to require Arqiva to produce/create any forms of information he considers are required for the carrying out of his role (i.e. information gathering powers existing outside the context of disputes). In addition, in signing up to the Adjudication scheme, complainants agree to provide the adjudicator with any information he reasonably requires to determine the outcome of a dispute lodged by that customer.

If either party does not comply with Adjudicator’s information request the Adjudicator may make a determination on the basis of available information or refuse to determine the matter or matters in dispute.

The Adjudicator may also gather (and have regard to) any other information from other sources he considers reasonable.


1.- For the purposes of this note Transmission Services are considered to be a bundle of MTS and NA services.

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