Competitive edge

Ofcom is preparing to beef up its legal team. Counsel Polly Weitzman is unafraid to fight her corner, but can she silence the critics?

Weitzman is set to ramp up the legal function at a time when Ofcom faces increasing scrutiny from the outside legal community as well as the companies within the markets that it regulates. The growing legal team is bound to play a crucial role in determining Ofcom’s success or failure.

“It’s not enough just to be bright,” says Weitzman. “You have to be good at working closely with clients and you have to be able to work in a multidisciplinary role within tight time constraints. We want to build a legal team that is, and is seen to be, second to none.”

Ofcom is a relatively new regulator, created just four years ago to take over the roles of the Radio Authority, the Independent Television Commission, the Broadcasting Standards Commission, the Office of Telecommunications and the Radio Communications Agency. It regulates on the range of issues previously covered by those agencies, including content and competition, but its primary remit is to protect the interests of consumers.

To some extent, it is Ofcom’s youth that is driving its need for more lawyers. With a new regulator come new regulatory policies that need to be tested on merit in the courts. And as a regulator, Ofcom is in a unique position in that a rising number of its decisions are being appealed through the Competition Appeal Tribunal (CAT).

Although the CAT was set up to look at competition issues, it also considers some of Ofcom’s sectoral decisions. Weitzman accepts that CAT inquiries are bound to happen more often as companies and lawyers test the limits of the new laws.

“Of course we like to have our decisions upheld by the CAT, but it’s right and proper that our decisions are scrutinised and that people have the right to appeal our decisions. When there’s ambiguity, the courts need to clarify the position as to the law,” she says. “We expect that, in making important decisions, they are sometimes going to be controversial, and we’re not frightened of doing that so long as they’re soundly based.”

Historically, regulators such as Ofcom have been held to account judicially via the High Court. But the CAT’s role is to investigate Ofcom’s decisions based on their merit, rather than limiting its inquiries to the law alone.

So far the CAT has looked at four Competition Act decisions that Ofcom has made and remitted aspects of the regulator’s decisions back to Ofcom for reconsideration on two occasions.

The CAT has also considered six appeals regarding Ofcom’s decisions in relation to its Communications Act powers, one of which has been remitted back to Ofcom.

Weitzman says an Ofcom decision has yet to be overturned by the CAT.

“The appeals we’ve been involved in have been across the full range of Ofcom’s powers, both where it acted as a competition authority and as a sectoral regulator,” she says. “It’s relatively early days at Ofcom and the CAT, and because of this it’s a fascinating time to be working here.”

Ofcom currently has around 20 in-house lawyers in its legal team, which is headed by Weitzman, herself a competition specialist, who joined from Denton Wilde Sapte in 2003.

Weitzman clearly has a dominant personality, and perhaps these characteristics are necessary in her position, but the outside world’s perception of Ofcom is out of Weitzman’s hands – particularly as Ofcom increasingly comes under the microscope.

Her appointment came at a time of upheaval for Ofcom, which had just merged the five regulators into one super-regulator, making half of its senior lawyers redundant in the process.

Departures included Oftel’s head of legal Sebastian Farr and the Radio Authority’s equivalent, Eve Salomon. Farr later scooped the senior legal role at Irish telecoms regulator the Commission for Communications Regulation, while Salomon snared two key appointments, becoming a board member at the Gaming Board and a commissioner at the Press Complaints Commission.

In November 2003, an Ofcom spokesperson told The Lawyer: “There’s clearly a duplication of roles when you merge five organisations into one. Ofcom is leaner and our costs are lower than the combined total of the five existing regulators.”

Although Weitzman cannot answer for Ofcom regarding the reasons behind its controversial decision to streamline the function, it is clear that there was more to it than it let on. One high-profile telecoms lawyer tells The Lawyer that, when Ofcom was launched, there was a desire to bring in new blood, as some other key people from the former regulators were entrenched in the civil service.

“It wasn’t a mere amendment to administration,” he claims. “It was no mistake that Ofcom was set up outside the civil service framework so that it could pay the right price for the right people. As the old HR saying goes: ‘If you pay peanuts, you’ll get monkeys’.”

Weitzman was brought into Ofcom as the head of competition around four months after the appointment of HMV general counsel Graham Howell, who became company secretary. Starting with a small legal team, Weitzman took on the tough job of building it up.

These days her team consists primarily of senior lawyers who work across a wide range of projects. A few of those lawyers act as key contact points for various legal functions, including former Oftel lawyer Clive Gordon on competition policy and ex-SJ Berwin competition lawyer Sarah Turnbull on Ofcom investigations.

“The initial Ofcom team was primarily public sector-based, as the lawyers came from legacy regulators,” Weitzman says. “Now we’re looking to introduce lawyers from both private practice and in-house to give us a different mix of expertise.

“In private practice you’re looking after the interests of the company or individual you represent, whereas at Ofcom we have much broader issues to consider, including how our decisions will affect the markets we regulate. That’s the fun of what we do and I’m interested in recruiting forward-looking lawyers who have strong views on policy and who are excited about making policy.”

Weitzman may be looking for blue-sky thinkers, but it is an approach that has not met with the approval of every media and telecoms lawyer.

As one magic circle telecoms lawyer comments: “It’s all very well to get in people who can think outside the square, but these policies ultimately need to be put into practice, and often regulators come up with policies without really thinking about how they’re going to work in practice.”

Most communications lawyers agree that Ofcom’s move towards hiring private practice and in-house lawyers has been a positive one. Herbert Smith international communications practice head John Edwards echoes the thoughts of many when he says: “People like Polly Weitzman and other private practice lawyers have brought new vigour to the regulator. They’ve made some progress in terms of the way they tackle the job at hand, and they seem to have got to the root of the issue regarding BT.”

The ‘root of the issue’, as Edwards puts it, just happens to be the Ofcom legal team’s biggest achievement to date, according to Weitzman.

During the past year the team has been heavily involved in the negotiations between Ofcom and BT that led to the regulator accepting Enterprise Act undertakings instead of making a reference to the Competition Commission.

Weitzman’s team’s involvement ranged from advising on the legal aspects of accepting the undertakings to forming part of a small team that spent many long nights negotiating with BT. The team also created the groundbreaking consultation and statement documents that accompanied the undertakings.

“The work on the undertakings was a good example of the way Ofcom’s lawyers work as an integral part of a multidisciplinary team,” Weitzman says. “This has been one of the biggest and most important cases since I arrived at Ofcom and one in which the legal team played a vital role.”

While supporters of the agreement say that the undertakings effectively opened the door to competition within the telecommunications sector, critics argue that Ofcom has not gone far enough in ensuring BT falls into line.

One telecoms lawyer comments that Ofcom has taken the “soft option” by negotiating undertakings with BT rather than utilising its competition powers.

“So what if they’ve agreed on undertakings? I think it’s a case of Ofcom counting its chickens that may have bird flu,” he says. “Ofcom has never raided BT, and if you look at similar regulators in other countries, they’re much heavier on dominant telecoms companies. The jury’s out on whether these undertakings will actually have any effect on the market at all, but I suspect BT has agreed to these undertakings because it didn’t want the Competition Commission to get involved.”

However, Weitzman is quick to dismiss Ofcom’s critics and prefers to focus on the work her legal team is involved in.

While Ofcom’s legal team takes on a wide range of projects, all non-policy-related matters are outsourced to external law firms. She remains coy about the extent of the role of external legal advisers, but insists that there is no legal panel as such.

On a day-to-day basis, an Ofcom lawyer could be working on anything from a Competition Act investigation to looking at complaints received about Jerry Springer – The Opera or Big Brother.

Weitzman insists that a good way to attract high-quality lawyers is to keep the work varied and interesting and to allow lawyers to see their projects through to completion.

“Unlike the OFT [Office of Fair Trading], where they have lawyers and litigators working on the separate aspects of each case, I’m determined to have lawyers who can see a project the whole way through,” she says. “We aim to do as many of these cases ourselves as possible because it’s cheaper, it’s more effective and it’s a way to retain excellent lawyers.”

While most telecoms and competition lawyers speak highly of Weitzman, there are those who insist that Ofcom has a long way to go before some of the real issues are ironed out. In the fast-paced world of technology, Ofcom is likely to continue to face more complex cases regarding the markets it regulates. It is a battle that Weitzman is up for, but the very unpredictability of the sector will make for an interesting ride ahead.

but can she silence the critics? By Donna Sawyer