Scope of the Adjudicator’s Role
The Adjudicator is not responsible for the prior approval of the charges for individual contracts or the Information Security Strategy or the valuation of any transmission assets offered for sale by Arqiva (as described in 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 (i.e. a combination of Network Access and Managed Transmission Services);
- New agreements for the provision of Network Access; and
- The sale of transmission assets.
The Adjudicator also undertakes the following functions:
- Issuing and maintaining Guidance on the setting of charges for Network Access and Transmission Services;
- Determining whether the publication of certain reference offers is appropriate/necessary (as described in paragraphs 10 and 12 of the Undertakings); and
- Providing periodic reports to Ofcom and the Competition and Markets Authority.
Disputes
An overview of the Disputes process can be found on the Dispute Process page of this website. The process is described in Appendix 2 of the Undertakings, which is titled Adjudication Rules.
Guidance
The Adjudicator provides two main types of Guidance:
- Relating to the setting of charges for Transmission Services and Network Access that are consistent with the Fair Reasonable and Non-Discriminatory practices and cost orientation principles;
- More general Guidance on matters of process, such as Dispute procedures and the process for reaching a decision.
The Adjudicator has the discretion to decide what Guidance is needed and the level of detail of such Guidance. In preparing and updating their Guidance the Adjudicator will consult with Arqiva and other stakeholders.
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, published Guidance and potential areas of Dispute etc.
Reporting to the Competition and Markets Authority and Ofcom
The Adjudicator will provide both the Competition and Markets Authority and Ofcom with a report every three months or at such frequency as required by Ofcom and the Competition and Markets Authority and an annual report, setting out:
- Their determinations or Adjudications in relation to any Disputes;
- The Adjudicator’s views about the operation of the Undertakings, the Adjudication Scheme and Adjudication Rules together with any recommendations for possible changes;
- Their views about the performance of Arqiva in complying with the Undertakings, the Adjudication Scheme and Adjudication Rules
- A summary of issues of Guidance they have provided;
- Any other relevant matters and information that they may regard as appropriate.
Regulatory Accounting
Arqiva has undertaken to maintain accounting records detailing the revenues, costs and assets used in the part of its business providing Network Access and Managed Transmission Services. This information is published annually as the Regulatory Accounts.
The accounts are prepared by Arqiva’s finance team and are audited by its auditors, PwC. The role of the Adjudicator is to agree the methods and processes used to allocate costs and assets between Arqiva’s broadcast transmission business, which is regulated by the Undertakings, and the other parts of its operations (e.g. smart meters, its radio and television multiplexes etc.).
Publication of Reference Offers
Arqiva are obliged to prepare and publish certain Reference Offers. These include:
- A framework Reference Offer for Network Access Radio;
- 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; and
- For sub-national radio following the advertisement from Ofcom or direction from the Adjudicator.
The Adjudicator can direct the publication of a new or revised offer as they see 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 costs in line with any Guidance and provide transparency to allow a customer a reasonable understanding of the basis of calculation of the charges.
The Undertakings and current Guidance obliges Arqiva to break down prices under different headings but, for reasons of commercial confidentiality, the level of transparency is limited. The Adjudicator has the right to ask for much more detail if they regard it as appropriate. This has usually happened when a customer is not satisfied by the level of detail Arqiva has provided during commercial discussions. The additional information provided to the Adjudicator remains confidential (i.e. it is not disclosed to the customer) but this of type of check has sometimes provided stakeholders with confidence that the prices have been calculated according to actual costs and the Undertakings.