Government of Bermuda v Office of Communications & Ors [2008] EWHC 2009 (Admin)

[2008] EWHC 2009 (Admin)Case No CO/5573/2008IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/08/2008
Before
THE HON. MR JUSTICE GOLDRING
Between
THE GOVERNMENT OF BERMUDAClaimantTHE OFFICE OF COMMUNICATIONSDefendant(2) MANSAT LIMITEDInterested Parties
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Richard Gordon QC and Victoria Wakefield (instructed by Olswang Solicitors) for ClaimantChristopher Vajda QC and Tim Ward (instructed by Herbert Smith Solicitors) for DefendantRobert Englehart QC and Charles Potter (instructed by Allen & Overy Solicitors) for Interested PartiesHearing Hearing dates: 6 August 2008
JudgmentMr Justice Goldring :Introduction
[1]This is a challenge to the decision of 7 May 2008 of the Office of Communications (“Ofcom”) to submit to the International Telecommunications Union (“the ITU”) the amended characteristics for a new frequency assignment in the broadcast-satellite service network for the Isle of Man (the first interested party), which has as its consultant Mansat (the second interested party). Bennett J ordered that there should be “a rolled-up hearing” of the claimant’s application for permission and the substantive merits of the claim. Although some of the (many) points taken by Mr. Gordon QC on behalf of Bermuda are in my view unarguable, I give permission.[2]In spite of the amount of evidence which has been filed, the issue can be shortly stated. Ofcom is the administrative body which represents both Bermuda and the Isle of Man before the ITU. On 25 June 2002 Ofcom’s predecessor, the Radiocommunications Agency, submitted to the Bureau at the ITU (“ITU-BR”) the Isle of Man’s initial proposal to modify the Region 2 satellite network (“the IOMBSS-1 proposal”). Region 2 covers the Americas. One of the satellite network areas with which IOMBSS-1 would excessively interfere was that which covers Bermuda (“BERBERMU”). Mansat modified IOMBSS-1 (“Amended IOMBSS-1”). By using the same computer software (“MSPACEg”) as is used by the ITU when it assesses whether a proposal gives rise to excessive interference to a particular network, Mansat established to its satisfaction that Amended IOMBSS-1 no longer affected BERBERMU. Ofcom agreed. Bermuda agreed that by application of MSPACEg, Amended IOMBSS-1 did not give rise to excessive interference with BERBERMU. Bermuda’s case, however, is that MSPACEg is not, due to Bermuda’s very small land mass, a satisfactory means of assessing interference. On 7 May 2008, in the light of the MSPACEg results, Ofcom indicated its intention to file Amended IOMBSS-1 with the ITU. It has maintained that intention. Bermuda’s case is that to persist in such a filing would amount to a complete abdication of Ofcom’s responsibilities to represent Bermuda’s interests before the ITU. Ofcom should convey Bermuda’s concerns on its behalf to the ITU. It should not act in such a way as will permit Amended IOMBSS-1 to be introduced.[3]Although not directly relevant to the legal issues, it is part of the overall background that if Amended IOMBSS-1 is not brought into use within the strict time limits set by the ITU, Bermuda is next in line in respect of its own similar proposed network. Although not alleging bad faith on Bermuda’s part, the Isle of Man makes the point that if the already substantial delay caused by this dispute is further prolonged, time will run out for Amended IOMBSS-1. That would leave Bermuda’s proposed network as the modification for Region 2.

The essential issue in the case

[4]Although Mr. Gordon QC on behalf of Bermuda has sought to attack Ofcom’s decision on a number of bases, it seems to me for reasons which will become apparent, there is only one real point in this case: whether under section 22 of the Communications Act 2003 (“CA”) Ofcom has the power to act as it proposes to.

The domestic framework

[5]Section 1 of the CA 2003 provides: “Functions and general powers of OFCOM (1) …[Ofcom] shall have the following functions- (a) the functions transferred to OFCOM under section 2; and (b) such other functions as may be conferred on OFCOM by or under any enactment (including this Act)… (3) OFCOM may do anything which appears to them to be incidental or conducive to the carrying out of their functions, including borrow money…” (a) the functions transferred to OFCOM under section 2; and (b) such other functions as may be conferred on OFCOM by or under any enactment (including this Act)…[6]Section 3 sets out Ofcom’s general duties. It is essentially concerned with domestic regulatory matters.[7]Section 22 of the CA provides: “Representation on international and other bodies(1) It shall be the duty of OFCOM to do, as respects the United Kingdom, such of the following things as they are required to do by the Secretary of State— (a) provide representation on behalf of Her Majesty's Government in the United Kingdom on international and other bodies having communications functions…(2) OFCOM shall also have the power, if requested to do so by the Secretary of State, to do one or more of those things as respects any of the Channel Islands, the Isle of Man or a British overseas territory.(3) It shall be the duty of OFCOM to carry out their functions under this section in accordance with such general or specific directions as may be given to them by the Secretary of State.(4) The Secretary of State— (a) is not entitled to direct OFCOM to comply with a request made under subsection (2); but (b) may give directions about how OFCOM are to carry out any representative role that they undertake in accordance with such a request.(5) In this section— “communications functions” means… (c) any other function which relates to, or is connected with, a matter in respect of which OFCOM have functions…(6) In relation to— (a) a part of the British Islands outside the United Kingdom, or (b) a British overseas territory, the references in subsection (5) to matters in respect of which OFCOM have functions include references to matters corresponding, in the case of that part of those Islands or of that territory, to matters in respect of which OFCOM's functions are confined to the United Kingdom…[8]The ITU has an international communications function. Bermuda is a British Overseas Territory. By exchange of letters on 31 January 2005 and 1 March 2005 the Secretary of State requested and Ofcom agreed that it would represent the Isle of Man and British Overseas Territories.[9]In short therefore, Ofcom has the duty to provide representation on behalf of both Bermuda and the Isle of Man before the ITU. It is the only administration which can represent them before the ITU.

The Memorandum of Understanding

[10]There is a Memorandum of Understanding (“MoU”) between the Secretary of State and Ofcom. It is agreed not to have legal force. It provides, among other things, that:
“1. Representation for the…Isle of Man, and British Overseas Territories [Bermuda] in the ITU 1.1 This [MoU] sets out the arrangements for Ofcom’s representation, as appropriate, of…the Isle of Man and [Bermuda] in the ITU. 1.2 Ofcom will represent the Channel Islands, the Isle of Man and… [Bermuda] in the ITU. 1.3 Ofcom shall, in relation to representing…the Isle of Man or…[Bermuda]; (a) Attend meetings of the ITU; (b) Make decisions or agree or disagree with any proposed decisions of the ITU; (c) Provide any undertakings or assurances to the ITU or to third parties; (d) Sign agreements on behalf of any of the Channel Islands, the Isle of Man or a British Overseas Territory; (e) Do any other thing which is incidental to or necessary for the representation of any of the Channel Islands, the Isle of Man or…[Bermuda] in the ITU.” (a) Attend meetings of the ITU; (b) Make decisions or agree or disagree with any proposed decisions of the ITU; (c) Provide any undertakings or assurances to the ITU or to third parties; (d) Sign agreements on behalf of any of the Channel Islands, the Isle of Man or a British Overseas Territory; (e) Do any other thing which is incidental to or necessary for the representation of any of the Channel Islands, the Isle of Man or…[Bermuda] in the ITU.”
[11]In short therefore, the understanding between Ofcom and the Secretary of State is that Ofcom is obliged to do anything which is incidental or necessary for the representation of the Isle of Man and Bermuda in the ITU. That reflects the wording of section 1(3) of the CA.

The explanatory note

[12]There is an “Explanatory Note Supplementing the [MoU]...between the Secretary of State…and [Ofcom]…relating to representation of the…Isle of Man and…[Bermuda] and the…[ITU].” Again, it is agreed not to have legal force.[13]In the introduction it is said:
“In effect, HMG has designated Ofcom to act as the “United Kingdom Administration” to the ITU, which in accordance with the ITU Constitution and Convention, means that Ofcom has the responsibility of representing the United Kingdom Member State (and all its Territories to which the ITU Convention applies). The MoUs do not give Ofcom any legal authority…[They] are not legally binding instruments.”
[14]Section 1 sets out “Ofcom’s role and responsibilities in representation for the Crown Dependencies and the British Overseas Territories in respect of the ITU.” It provides:
“It is important to underline that, in fulfilling its role when representing HMG, Ofcom is working for HMG and takes instructions accordingly. In its capacity as a “National”
Regulator, Ofcom was designed to be independent from Government, but the Communications Act 2003 created an exception for some of Ofcom’s international roles. It follows that Ofcom liaises very closely with HMG when preparing for ITU and related meetings and as necessary during meetings, and there should be no distinction in this regard between Government representatives in the UK or in the OTs or CDs. In other words, Ofcom would expect to liaise closely with appropriate authorities in the OTs and CDs in preparation for ITU meetings where the OTs and CDs have specific interests. While Ofcom can be directed under section 22(3) of the Communications Act to do certain things as HMG sees fit, in most cases Ofcom will simply adhere to the wishes of HMG and represent those wishes accordingly. In a limited number of cases, where there may be a conflict of interests between Government Departments, these may be addressed in the Cabinet Office Committee on UK Spectrum Strategy Committee “UKSSC”, which may issue further Directions, or less formally in inter Department discussion. Section 1 of the MoU sets out Ofcom’s role including attending meetings of the ITU, making or agreeing decisions, signing decisions, providing undertakings and doing other things necessary so as to represent the OT/CD interests properly. All of these functions are carried out in consultation with HMG including representatives of the OTs and CDs and with an understanding of those wishes. There should be full consultation with the OTs/CDs on issues which affect them directly before any action was taken by Ofcom.”[15]Under the broad heading, “The Practical arrangements under the MoU,” section 2 has a subheading:
“Possible conflicts of interest.”
It states:
“Ofcom takes the views of individual OTs and CDs very seriously having a duty to represent those interests. Any conflicts of interests between any of the parties represented by Ofcom, whether they be on the mainland or in OTs or CDs, will be weighed in consultation with those parties and the Government Departments concerned. The MoU does not deal with how Ofcom should weigh conflicting interests in its representational role. This is too complicated to be dealt with effectively in the MoU. Aside from competing commercial interests there are differences in the way that communications are regulated in different Territories. An example is “foreign use of Mobile Country Codes” which is outlawed in some jurisdictions and explicitly authorised in others. ITU Recommendations pertain to this market behaviour and Ofcom has a duty to ensure that all OT and CD interests are weighed and represented. In this cited particular example, Ofcom has held meetings with representatives from OTs and CDs to understand their point of view and has formed a policy line at the ITU reflecting that divergence of views. As part of its normal responsibilities, Ofcom is obliged to consider competing interests whether those interests be in distant territories or side by side in the UK. Candidly, additional wording in the MoU would not add anything where weighing interests is concerned. The onus is on Ofcom and the OTs and CDs to stay closely in touch and to make sure that issues are explained, understood and duly taken into account. Ofcom values consultation as a means to balance interests. However, if problems arise that making changes in the MoU might help address, HMG and Ofcom would be pleased to discuss any wording proposed by OTs/CDs.”

The procedures for the management of satellite filings

[16]The “Procedures for the Management of Satellite Filings” are contained in a guidance document dated 27 March 2007. Annex 1 defines “coordination:” “This term refers to the process under which a new user seeks the agreement of existing users to share access to a particular range of frequencies while avoiding harmful interference.”[17]Paragraph 2.21 provides:
“Before an administration can notify the ITU-BR or bring into use a frequency assignment it must effect coordination with other administrations identified as affected administrations. Coordination, as described in Section II of Article 9, is a formal regulatory obligation both for an administration seeking a frequency assignment for its network and for an administration whose existing or planned services may be affected by that assignment. An agreement arising from coordination confers certain rights and imposes certain obligations on the administrations that are parties to that agreement.”
[18]The procedure in respect of British Overseas Territories such as Bermuda is set out at paragraphs 6.11 to 6.12. They state respectively:
“‘For any new application to bring into use a UK planned frequency assignment covering a British Overseas Territory, Ofcom may consult and liaise with the government of the British Overseas Territory to determine how to process the application. If the proposed satellite filing is not technically compatible with a UK planned frequency assignment covering a British Overseas Territory, as contained in a frequency assignment plan, Ofcom will initially invite the applicant to modify the proposal so as to mitigate the incompatibility. Where this cannot be achieved, Ofcom may consult the British Overseas Territory to determine how to treat the subject application. Such actions would be carried out in compliance with the ITU rules and regulations.”
The international framework The Radio Regulations

The international framework

[19]These, it is agreed, have the status of an international treaty. They govern the procedure for the filing of proposed modifications to a planned frequency band. Assignments of radio frequency channels to specific countries are set out in a plan. As presently relevant, Article 4 of Appendix 30 sets out the procedure for modifying the Region 2 BSS Plan.[20]Article 4.2.1 provides:
“When an administration intends to make a modification to the Region 2 Plan, i.e… b) to include in the Region 2 Plan a new frequency assignment to a space station in the broadcast-satellite service… the following procedure shall be applied before any notification of the frequency assignment is made to the Bureau.”
[21]In the present context, the administration is the United Kingdom through Ofcom.[22]Article 4.2.3 provides:
“An administration proposing a modification to the characteristics of a frequency assignment in conformity with the Region 2 Plan, or the inclusion of a new frequency assignment in that Plan, shall seek the agreement of those administrations… c) Of Region 2 having a frequency assignment in the Region 2 Plan to a space station in the broadcasting-satellite service in the same or adjacent channel which is in conformity with that Plan, or in respect of which modifications to that Plan have been received by the Bureau in accordance with…[Article 4.2.6]… g) whose services are considered to be affected.”
[23]By Article 4.2.5:
“‘The services of an administration are considered to be affected when the limits shown in Annex 1 are exceeded.”
[24]Although, as Mr. Gordon rightly submitted, MSPACEg is not mentioned in terms in Annex 1, it is absolutely clear on the evidence of Mr. Phillips, the Head of Space Services at Ofcom, that the ITU uses MSPACEg as the means of deciding whether the limits in Annex 1 have been exceeded. As far as the ITU is concerned, it is determinative.[25]Article 4.2.6 provides:
“An administration … intending to make a modification to the Region 2 Plan shall send to the Bureau, not earlier than eight years but preferably not later than two years before the date on which the assignment is to be brought into use, the relevant information listed in Appendix 4. Modifications to that Plan shall lapse if the assignment is not brought into use by that date. A request for a modification that has not been included in that Plan by that date shall also lapse.”
[26]Article 4.2.8 provides:
“The Bureau shall determine, on the basis of Annex I, the administrations whose frequency assignments are considered to be affected within the meaning of § 4.2.3. The Bureau shall publish, in a Special Section of its BR IFIC, the complete information received under § 4.2.6, together with the names of the affected administrations, the corresponding fixed-satellite service networks, the corresponding broadcasting-satellite service assignments and terrestrial stations, as appropriate. The Bureau shall immediately send the results of its calculations to the administration proposing the modification to the Region 2 Plan.”
[27]That is the Part A publication.[28]By Article 4.2.10:
“An administration which considers that it should have been included in the list of administrations whose services are considered to be affected may, giving the technical reasons for doing so, request the Bureau to include its name on the list. The Bureau shall study this request on the basis of Annex 1 and shall send a copy of the request, with an appropriate recommendation, to the administration proposing the modification…”
[29]Annex 1 sets out the “limits for determining whether a service of an administration is affected by a proposed modification to the Region 2 Plan.” Among other things, it sets out in paragraph 2 the “limits to the change in the overall equivalent protection margin for frequency assignments in conformity with the Region 2 Plan (“OEPM”).” As I have said the ITU decides whether the limits have been exceeded by using software designed for the purpose, namely MSPACEg. If by the use of MSPACEg the limits are not exceeded, the services of the administration in question are not affected.[30]By Article 4.2.14:
“An administration [identified in the Part A publication] that has not notified its comments either to the administration seeking the agreement or to the Bureau within a period of four months…shall be deemed to have agreed to the proposed assignment.”
[31]By Article 4.2.14ter:
“After expiry of the deadline for comments in respect of the proposed assignment, the Bureau shall…publish a Special Section, indicating the list of administrations whose agreements are required for completion of the Article 4 procedure.”
[32]That is the Part D publication.[33]By Article 4.2.11: “Except as provided…any modification to a frequency assignment which is in conformity with the Region 2 Plan or any inclusion in that Plan of a new frequency assignment which would have the effect of exceeding the limits specified in Annex 1 shall be subject to the agreement of all administrations whose services are considered to be affected.’[34]By Article 4.2.15:
“If, in seeking agreement, an administration modifies its initial proposal, it shall again apply the provisions of § 4.2 and the consequent procedure with respect to any other administration whose services might be affected as a result of modifications to the initial proposal.”
[35]Amended IOMBSS-1 was such a modification. Its purpose was, among other things, to exclude BERBERMU as an affected service.[36]By Article 4.2.16:
“If no comments have been received on the expiry of the periods specified in § 4.2.14, or if agreement has been reached with the administrations which have made comments and with which agreement is necessary, the administration proposing the modification may continue with the appropriate procedure in Article 5, and shall so inform the Bureau, indicating the final characteristics of the frequency assignment together with the names of the administrations with which agreement has been reached.”
[37]By Article 4.2.20:
“When an administration proposing to modify the characteristics of a frequency assignment or to make a new frequency assignment receives notice of disagreement on the part of an administration whose agreement it has sought, it should first endeavour to solve the problem by exploring all possible means of meeting its requirement. If the problem still cannot be solved by such means, the administration whose agreement has been sought should endeavour to overcome the difficulties as far as possible, and shall state the technical reasons for any disagreement if the administration seeking the agreement requests it to do so.”
[38]By Article 4.2.20:
“If no agreement is reached between the administrations concerned, the Bureau shall carry out any study that may be requested by these administrations; the Bureau shall inform them of the result of the study and shall make such recommendations as it may be able to offer for the solution of the problem.”

Mr. Gordon’s contention on Article 4 and Annex 1

[39]Mr. Gordon’s contention on this aspect can shortly be stated and immediately dealt with. In my view, it is unarguable.[40]He submitted that Article 4.2.11 requires that any modification which would have the effect of exceeding the Annex 1 limits must be agreed to by “affected administrations.” That must mean administrations “considered to be affected.” That falls to be determined at the outset under Article 4.2.8. Article 4.2.16 only permits a filing to be made if agreement has been reached with those administrations which have comments and with which agreement is necessary. That must refer to those administrations identified under the Part D procedure. It must too include those listed in Part A. Once an administration has been determined as affected, there is no mechanism for its removal. Article 4.2.15 does not provide that agreement is no longer required from those administrations whose services have ceased to be affected by an amended proposal. It only identifies “any other administration.” (my emphasis) In short, once listed, an administration’s agreement must be sought, albeit that by an amendment to the original proposal it is no longer affected.[41]The implications of Mr. Gordon’s submissions are startling. It would mean the following.[42]An administration is initially considered to be affected. The ITU, by using MSPACEg, decides it is unaffected. There is no more that administration can do. An administration is initially considered to be affected. The ITU, by using MSPACEg decides it is affected. Because agreement cannot be reached, the proposal is amended. The ITU by using MSPACEg decides the amended proposal no longer affects the administration. Although the ITU’s role in respect of Annex 1 is over, the absence of any mechanism for removal of the now unaffected administration means that its agreement must still be sought. It would put an administration unaffected because of an amendment into a different position from an administration never affected in the first place. The agreement of the first administration would be irrelevant. The second, the formerly, but now unaffected, would hold the power of veto over the amended proposal. Because the ITU cannot force an agreement, such an administration could effectively delay to such an extent that the proposal would run out of time. If there were more than one such administration seeking agreement, it could quickly become unworkable.[43]Of course, if I am driven to such an interpretation by the provisions, I must say so. However, it seems to me quite clear:(1) The purpose of the procedure laid down in Article 4 is to protect plan assignments from interference in excess of Annex 1. The purpose is not to protect administrations unaffected by the proposal.(2) Whether or not an administration is affected is decided by the ITU by reference to Annex 1 and by using, as the evidence plainly shows, MSPACEg.(3) Articles 4.2.1, 4.2.3, 4.2.5, 4.2.6, 4.2.8, 4.2.10, 4.2.11, 4.1.14ter are concerned with those administrations considered to be affected.(4) It was not the purpose of the procedure that the conflict resolution provisions should apply to unaffected administrations. There would be no point in them doing so. There would be nothing of substance to resolve.(5) There would be no point in such circumstances for the Bureau to carry out any study. There would be nothing of substance to study.(6) If, by an amendment to the proposal, the administration in question is no longer affected there is no purpose in or justification for its agreement to be sought. It is not necessary that it should be. There is every reason why it should not be.(7) In my view it is necessarily implicit in the Article 4 procedure that a modified proposal, resulting in the limits in Annex 1 no longer being exceeded, means that the administration in question is no longer considered to be affected and its agreement need not be sought. The fact that Article 4 does not in terms say so does not matter.

The dispute between Bermuda and the Isle of Man

[44]On 25 June 2002 the Radiocommunications Agency submitted IOMBSS-1 to the ITU-BR. The requirements of Article 4.2.6 meant that the Isle of Man had 8 years from then (25 June 2010), to bring the relevant assignments into use.[45]On 27 July 2004 the ITU-BR published its Part A publication. It identified, among others, the United Kingdom (on behalf of Bermuda) as a potentially affected administration. On 22 November 2004, Ofcom confirmed to the ITU-BR on behalf of Bermuda that BERBERMU was affected by the proposal beyond the limit set out in Annex 1. On 25 January 2005, the ITU-BR published the Part Dpublication in respect of IOMBSS-1. It listed the UK as an administration with which agreement was required, again on behalf of Bermuda.[46]As stated by paragraph 6.12 of Ofcom’s Guidance (see paragraph 18 above), one way in which the Isle of Man could remedy the conflict between IOMBSS-1 and BERBERMU was through an amendment to the plan modification proposal. On 12 October 2007, Mansat submitted Amended IOMBSS-1. The evidence is that Mansat, to its satisfaction, had established by means of the MSPACEg software that Amended IOMBSS-1 did not give rise to interference in excess of the limit established by Annex 1. There is no doubt that Mansat was correct; by the application of MSPACEg, there was no excessive interference.[47]Ofcom concluded that there was no longer any need for the Isle of Man to reach agreement with Bermuda and that it could proceed to submit Amended IOMBSS-1 to the ITU-BR.[48]On 24 October 2007 Ofcom wrote to Bermuda. It explained what it proposed to do. It stated that it had assurances from Mansat there would not be unacceptable interference. It understood the network design had been modified. BERBERMU was no longer affected. It stated:
“On this basis we believe the potential interference issues…have now been resolved.”
[49]At Bermuda’s request, it refrained from making the submission whilst Bermuda itself conducted its own analysis of Amended IOMBSS-1 using MSPACEg.[50]Ofcom itself conducted an analysis of Amended IOMBSS-1 using MSPACEg and obtained the same result as Mansat.[51]Ofcom sought, and was given, permission by Mansat to make the technical parameters of Amended IOMBSS-1 available to Bermuda. Bermuda’s consultants, Access Partnership, confirmed to Ofcom that MSPACEg no longer identified BERBERMU as affected beyond the limit set out in Annex 1.[52]In short therefore, had Bermuda been an independent administration, on my understanding of Article 4, it was no longer affected under Annex 1; the Isle of Man, had it been an independent administration, would not have to obtain Bermuda’s agreement before filing.[53]Bermuda wrote directly to the ITU on 20 March 2008. Mr. Gordon suggested that what was said by the ITU in paragraph 2 of its reply shows that there is a genuine issue regarding MSPACEg. It was there said:
“The Bureau is aware of the situation that is described in the correspondence and is inherent to the design of the technical software.”
[54]Paragraphs 6 and 7, which I shall not quote, do not however suggest that the fears expressed by Bermuda were soundly based. Mr. Thompson, the Project Director of Access Partnership, the consultants to Bermuda, says those paragraphs were based on incomplete information.[55]On 7 May 2008, following further correspondence with Bermuda' s solicitors, Ofcom informed them by letter that it would file Amended IOMBSS-1. That is the challenged decision. In the course of the letter, Ofcom dealt with the concerns raised by Bermuda in turn. It set out its assessment of the merits of that concern. It pointed out that in its letter the ITU noted that BERBERMU was adequately protected. This, submitted Mr. Gordon, is the letter of a regulator, not a representative.[56]Bermuda thereafter continued to dispute Ofcom’s entitlement to file the Amended IOMBSS-1. In its pre-action protocol letter it required Ofcom to withdraw its decision and comply with its statutory obligations properly to represent Bermuda’s interests. In the letter, it set out what is said to be further, fresh information relating to Bermuda’s concerns. It reflected further analysis, submitted Mr. Gordon, on the MSPACEg assessment.[57]On 4 June 2008 Ofcom responded. It refused to withdraw the decision. Mr. Gordon submitted this again was the letter of a regulator. Moreover, the fresh points had been ignored.

A summary of Bermuda’s present concerns

[58]I shall try and summarise and simplify some of the concerns which Bermuda says it has regarding Amended IOMBSS-1. At the heart of the expressed concern is that MSPACEg is not a suitable means of assessing interference in this case. Bermuda is a small land mass. BERBERMU aims to broadcast to it. There is not any margin for error. MSPACEg underestimated the amount of possible interference to BERBERMU from Amended IOMBSS-1. If, as sometimes happens, the antenna were to point in slightly the wrong direction, there would be interference. MSPACEg gives the false impression of greater protection from Amended IOMSS-1 than is the case. The area in which BERBERMU aims to broadcast falls exactly within an area in which it is unclear from MSPACEg whether there will be interference. More precise calculation shows that even on the Isle of Man’s proposed positioning of the satellite antenna, there will be unacceptable interference. If it is inaccurately positioned, it will be worse.

How Ofcom approached the argument between Bermuda and the Isle of Man

[59]How Ofcom approached the dispute between Bermuda and the Isle of Man is summarised in the following way in Ofcom’s skeleton argument. “Ofcom has in fact sought to resolve the dispute between Bermuda and the Isle of Man using the same approach that the ITU would itself use in respect of an issue of interference beyond the limit set by Annex 1 as between administrations, in accordance with the Guidance. It has thereby ensured that materially, Bermuda enjoyed the same substantive rights as it would have had if it had been separately represented before the ITU.”[60]On the basis of his interpretation of the Radio Regulations, Mr. Gordon disagrees. For reasons I have already given, in my view that is unarguable. It is unnecessary to go into Mr. Phillips’ evidence. It is absolutely clear that the ITU would have regarded the MSPACEg outcome as determinative. That would have been the end of any argument from Bermuda were it an independent administration.[61]I reject what is Mr. Gordon’s fourth submission, namely that the ITU-BR would have had no power to act or would not have acted as Ofcom has purported to.

The section 22 argument

[62]I turn now to what seems to me the nub of this application.[63]Mr. Gordon submitted that Ofcom’s decision is vitiated by a simple but fundamental error. It purported to reach a determination that Amended IOMBSS-1 no longer interfered with BERBERMU in excess of the Annex 1 limits. It therefore concluded that there was no longer any need for the Isle of Man to reach agreement with Bermuda and that it could proceed to filing. The only statutory power upon which Ofcom can rely is section 22 of the CA. That only gives Ofcom a power to represent, it does not give it a power to determine when a conflict arises. It does not have the expertise to do so. It has confused its role as a domestic regulator with its limited international role as a representative. It has no power effectively to usurp the ITU’s role domestically. Ofcom is obliged to follow Bermuda’s instructions and advance its concerns before the ITU. Its failure to do so has deprived Bermuda of any opportunity to express those concerns to the ITU.[64]Once Ofcom has accepted the power “to do one or more of those things” under section 22(2), it is required, under section 22(1)(a), submitted Mr. Gordon, “to provide representation” on behalf of Bermuda before the ITU. The concept of providing representation cannot differ as between subsections 1 and 2. Ofcom is bound to follow Bermuda’s instructions as it would the Secretary of State’s when representing the United Kingdom. Representation does not mean regulation. The express power is limited to the first. That must exclude the second. The express power was limited to the United Kingdom. There was no power over Bermuda.[65]The arrangements for that representational role are set out in the MoU (see paragraphs 10 and 11 above). The Explanatory Note (see paragraphs 12-15 above) makes clear the representative role and the absence of any distinction as between the different bodies being represented. The Note emphasises the degree to which Ofcom takes instructions, how too it is required to consult. Although the Note recognises that conflicts of interest might arise, it “ducks” how to resolve them.[66]Mr. Gordon too emphasised the procedure set out in the Guidance (see paragraphs 16-18 above).[67]The CA is essentially a statute dealing with the independent regulator for the United Kingdom. Section 22 is the only international aspect. Section 22 does not concern regulation. It concerns representation. For Ofcom to make such a judgment as it proposes would be to assume a regulatory power over Bermuda which it does not have and is inconsistent with the CA. The CA is not extra-territorial in its jurisdiction. It cannot extend to Bermuda. Section 1(3) cannot be the means by which Ofcom regulates Bermuda.[68]Mr. Gordon further submitted that there cannot be implied into the powers given to Ofcom under section 22, which are expressly limited to representation, an inconsistent power to regulate or decide. Neither section 1(3) of the CA nor common law permits that. A statutory body does not have an implied power merely because it might or would be desirable.[69]Mr. Gordon cited a number of authorities. In McCarthy and Stone (Developments) Ltd. v Richmond upon Thames London Borough Council [1992] 2 AC 48, it was held that there could not be implied into a local authority’s power to offer pre-planning advice, a power to charge for it. In the course of his speech in which he was dealing with the council’s contention that there was implied into section 111(1) of the Local Government Act 1972 a power to charge, in a passage relied upon by Mr. Gordon, Lord Lowry said:
“…I consider the [the council’s reasoning] to be mistaken because it does not by any means follow that all of the discretionary functions of the council or all of the facilitating or incidental activities contemplated by section 111 are services for which it is permissible to charge in the absence of express authority to do so. The rule is that a charge cannot be made unless the power to charge is given by express words or by necessary implication. Those last words impose a rigorous test going far beyond the proposition that it would be reasonable or even conducive or incidental to charge for the provision of a service.”
See page 70H.[70]In Credit Suisse v Allerdale Borough Council [1997] QB 306, the establishment by the council of a company guaranteeing a building project was outside the express and implied power of the council. Mr. Gordon in particular relied upon the following passage of the judgment of Neill LJ:
“The only implied power could be the power for the council itself to borrow money. The implied powers in section 111 do not provide an escape route from the statutory controls…Section 111(3) ensures that the powers exercisable under section 111(1) have to be used in conformity with the other statutory provisions... The establishment of the company and the giving of the guarantee were part of an ingenious scheme designed to circumvent the no doubt irksome controls imposed by central government. The council…could only do what it was empowered to do by statute…”
[71]In short, submitted Mr. Gordon, the implied power must be necessary to fulfil the express power, not inconsistent with it. The test of whether a power can be implied is very vigorous. Where there is, as here, a comprehensive statutory code, the court cannot use an implied power to bypass that code. The effect here would be by an implied power for Ofcom to assume extra-territorial jurisdiction over Bermuda when it does not have it.[72]It follows too, submitted Mr. Gordon, that Ofcom cannot as a matter of domestic law act as if it were the ITU, whether or not it acted within the spirit of the RR; whether or not the ITU asked it to or the RR mandated it (which they do not).[73]Mr. Gordon was also critical of the means adopted by Ofcom of resolving the dispute. I shall merely shortly summarise his points. It was irrational to rely on MSPACEg in the circumstances. Ofcom does not have the expertise to decide whether there might be interference above the limits. Ofcom has failed to take account of Bermuda’s recent expressions of concern.[74]Mr. Vajda QC’s response on behalf of Ofcom was short and straightforward. He explained that before the CA the United Kingdom itself did the filings in circumstances such as the present. He suggested that the new provisions put Ofcom into the shoes previously filled by the Secretary of State. It was plainly the intention that there should be a seamless transition between the old and the new procedures. There was no reason to construe Ofcom’s powers more restrictively than were the powers previously of the Secretary of State.[75]Section 1(3) permits Ofcom to do “anything which appears to them (sic) incidental or conducive to the carrying out of their functions”. That is reflected in the MoU.[76]Even if section 1(3) did not give Ofcom a wider power as contended for by Mr. Gordon, that section merely reflects the position at Common Law. He cited the well known passage of Lord Blackburn from Attorney-General v Great Eastern Railway Company (1880) 5 App Cas 473 at page 481:
“whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires… those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited”
[77]That wider power may, submitted Mr. Vajda, be implied. The authorities relied on by Mr. Gordon are within a limited ambit: councils and the way in which they use their ratepayers’ money. That is well away from the present case. Here what was done was incidental to the power given by section 22 and necessary. If Bermuda were France it could not make representations to the ITU, for it is now unaffected by IOMBSS-1. Ofcom has a duty towards the Isle of Man. Ofcom had to decide how to exercise its undoubted power to file Amended IOMBSS-1. It had to resolve the competing claims and reach a judgment. There was the time pressure. The power to do so is implicit in its duty to represent them both. It is incidental or necessary.[78]As to the means adopted by Ofcom to resolve the dispute, Mr. Vajda submitted they were rational and sensible. Ofcom did what the ITU would have done. As I have already said, I agree. It was not in such circumstances irrational for Ofcom to rely on MSPACEg. As Mr. Phillips says, it is the accepted international standard. Mr. Gordon’s suggestion that Ofcom is not qualified to decide on the merits of MSPACEg and other technical information is based upon a partial reading of Mr. Phillips’ third statement and wholly without substance.[79]It is unnecessary to summarise the submissions made by Mr. Englehart QC on behalf of the Isle of Man.

My conclusion: section 22

[80]In my view Mr. Vajda is right. As it seems to me the following is the case:(1) As I have said, were Bermuda an independent administration, it would no longer be an affected administration. The ITU would have decided that the Annex 1 limits were not exceeded. That would be the end of the ITU’s involvement as far as Bermuda was concerned. Bermuda is therefore in no worse a position as a result of Ofcom’s decision than it would have been as an independent administration. It seeks by the present application to be in a better one.(2) Ofcom has a duty to represent the Isle of Man.(3) It is implicit in the statutory arrangements under section 22 of the CA that conflicts may arise between those territories in respect of which Ofcom is the sole administrator. Unless the CA or the common law provide a means for resolving that conflict, as the present case illustrates, Ofcom may well be unable to provide any meaningful representation before the ITU. As Mr. Vajda rightly said, this goes to the heart of what Ofcom does internationally.(4) The Secretary of State has not given Ofcom any directions about how it is to carry out its representative role in this particular conflict.(5) In the present case, absent a means of resolution, Ofcom could not fulfil its duty, to represent the Isle of Man, which in spite of the conflict, remains. It could not file on behalf of the Isle of Man. It, and the Isle of Man, might have to wait for an indeterminate time during which the Isle of Man sought agreement with Bermuda. Such an agreement seems unlikely. So long could elapse that it would be too late for a filing which would enable IOMBSS-1 to start within the time limits. It would be surprising if such an outcome were the intention of the section 22 provisions.(6) I have no doubt that in those circumstances it is “necessary” or “incidental” to Ofcom’s duty to represent both territories under section 22 for it to resolve that dispute. Such resolution would moreover be “consequential” to the power given to Ofcom. It is something which “may reasonably and properly be done under the main purpose” of section 22.(7) There is nothing inconsistent with the express power of representation under section 22 in implying such a power, whether, as does seem to me the case, under section 1(3) or by common law. In circumstances such as the present, Ofcom is not bound to follow Bermuda’s instructions. It is not either acting extra-jurisdictionally or acting as a regulator. It is doing something which by implication it may do by reason of its power under section 22.(8) As to the means adopted by Ofcom for resolving the dispute, I agree with Mr. Vajda. Indeed, in the circumstances, it is not easy to see how else Ofcom should have applied its judgment.

Mr. Gordon’s further submissions

[81]It follows from what I have said, that Mr. Gordon’s submission that Ofcom acted irrationally in failing to put Bermuda in the same position as if it were claiming to be an affected administration or were separately represented, must fail.[82]I also reject the submission made for the first time in Mr. Gordon’s speaking note that it was irrational for Ofcom not to put Bermuda’s most recent concerns to the ITU. It follows from what I have said, it was unnecessary for Ofcom to do so. I need not go into the technical submissions made to me by Mr. Gordon, and, in response, by Mr. Vajda.[83]In the light of my decision, it is also unnecessary for me to go into what Mr. Phillips suggests would be the serious implications of granting relief. Neither too is it necessary to go into what Mr. Phillips describes as the ex post facto power to prevent harmful interference: in other words, the power which he claims Ofcom has to force Mansat, through the Isle of Man, to remedy any harmful interference with BERBERMU should it arise.[84]In the result this application for judicial review is refused.

Cited in 1 later judgment