Ofcom has launched a consultation on its approach to competition law enforcement, alongside draft enforcement guidelines for investigations, which signals how Ofcom intends to use its enhanced enforcement powers. Ofcom, the UK’s communications regulator, shares concurrent competition enforcement powers with the CMA under the Competition Act 1998 (CA98). The Digital Markets, Competition and Consumers Act 2024 (DMCCA) has now expanded Ofcom’s toolkit. 

While Ofcom’s general enforcement philosophy remains unchanged, the consultation and draft guidelines reveal a regulator thinking carefully about how to deploy its enhanced competition law enforcement powers. We set out the key points that communications companies need to know. Responses are due by 6 November 2026.

1. Bigger settlement discounts – but stricter conditions

Ofcom proposes to increase settlement discounts to 20% for cartel conduct and 40% for non-cartel conduct when settlement is reached before a Statement of Objections. Settle after that point, and the discounts drop to 10% and 25% respectively. Ofcom retains discretion to adjust discounts case by case.

The catch? Settlement conditions are stricter. To qualify, a company must:

• Make a clear, unequivocal admission of liability covering the nature, scope and duration of the infringement;
• Cease the infringing conduct immediately and refrain from similar behaviour;
• Accept that there will be a formal, published infringement decision, a penalty and binding directions;
• Accept a streamlined administrative process; and
• Waive any right to challenge or appeal – with Ofcom reserving power to revoke the discount if the company does appeal.

Important: Ofcom has indicated that settlement discussions are not equivalent to ‘without prejudice’ communications, and that any documentary evidence provided during settlement discussions would be placed on Ofcom’s case file and could be used by Ofcom in a final infringement decision if settlement talks break down. However, any ‘discussions’ that take place in the context of settlement would not be revealed to the final decision-makers.

2. Increased penalties for breaching commitments

Companies may offer binding commitments and, if those commitments are accepted by Ofcom, that will resolve the investigation. Ofcom and other regulators with concurrent powers (such as the CMA) now have the power to impose penalties of up to 5% of global turnover if those commitments are breached. This is an escalation in Ofcom’s enforcement powers. The stakes are high: it will be essential for regulated companies to stress-test the feasibility of proposed commitments and ensure that they have internal systems in place for monitoring and compliance.

3. Document preservation: Act now, not later

The DMCCA imposes a duty to preserve documents as soon as a company knows or suspects that Ofcom is opening, or is likely to open, an investigation. Falsifying, concealing, destroying or disposing of relevant documents is prohibited – and can attract financial penalties. Given that this duty arises before an investigation is commenced, and Ofcom can impose financial penalties for non-compliance, regulated companies must have robust document preservation policies in place. We note that, in a different context, the CMA has already exercised its power to impose a financial penalty for failing to comply with a legal information notice. The DMCCA also confirms Ofcom’s extra-territorial reach: information requests can target documents held outside the UK, provided the recipient has a UK connection.

4. Faster investigations, shorter response windows

The DMCCA imposed a new duty on Ofcom to “have regard to the need for making a decision, or taking action, as soon as reasonably practicable” when exercising certain functions, including CA98 enforcement. In practice, this means investigations will likely proceed more quickly, resulting in tighter deadlines for companies to formulate strategy, gather evidence and respond. The consultation also signals that Ofcom may issue a Statement of Objections and provisional penalty notice simultaneously – compressing the timeline for responding to both substance and penalty.

5. New tools: Redress schemes and sustainability agreements

Ofcom can now approve voluntary redress schemes, which offer affected parties a route to obtain compensation without pursuing litigation. Ofcom will follow CMA guidance where applicable. However, such voluntary schemes do not provide immunity from litigation – there is always a risk that affected parties could initiate follow-on litigation, which can be costly and time-consuming.

The consultation also confirms that Ofcom will have regard to CMA guidance on environmental sustainability agreements – a growing area of regulatory focus.

6. Procedural updates from Ofcom’s enforcement experience

Ofcom is updating its guidelines to reflect its experience from past investigations. The key clarifications cover: (i) how Ofcom decides whether to investigate; (ii) confidentiality protections; (iii) access to file processes; (iv) oral hearings, including the expectation that directors and staff will participate; and (v) disclosure of additional evidence after a provisional infringement finding. The draft guidelines set out these matters in detail.

Will the new guidelines impact regulatory enforcement?

The consultation relates to Ofcom’s competition law enforcement powers only. Ofcom’s guidance regarding regulatory enforcement (online here) remains in place and is not affected by the consultation. 

However, there are instances where conduct could fall into more than one of Ofcom’s enforcement areas (e.g. if a large online platform were to impose unfair terms of service, that conduct could potentially be characterised as an online harm and a breach of consumer or competition law). Ofcom has previously indicated that its competition enforcement powers are “intrinsically linked” to its sector regulatory powers and that having a range of powers allows it to adapt its approach to utilise the tool that will be “most effective” in addressing the harm. In doing so, Ofcom considers a range of factors including the aims of each regime, the timeliness of outcomes and whether a case raises novel points which require clarification. We expect that the new DMCCA powers around expediency and increased financial penalties will influence this assessment and Ofcom’s enforcement direction going forward.  

This may be particularly relevant in the online safety space where Ofcom has recently commented that it is "operating in a highly litigious environment" involving some of the largest platforms. In addition, there is a growing global trend of characterising online safety issues as consumer (user) protection or product issues. Ofcom has already demonstrated how it will work with other regulators in relation to online safety (for instance working with the ICO regarding child users) and, whether it is working with the CMA and/or selecting the most effective tools from its own enforcement toolkit, we expect Ofcom will be carefully considering how it will manage the litigious environment it is in. 

What happens next?

Ofcom is accepting responses until 6 November 2026. Following the consultation, Ofcom plans to publish a statement on next steps in Spring 2027. 

If you would like to discuss the consultation or how our team can support you in responding, please get in touch.