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Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 2 — Spectrum use

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           (1B)              For the purposes of this section any appeal under section 189 of the

Communications Act 2003 with respect to a notice under this section or

a further appeal relating to the decision on that appeal is pending

unless—

                  (a)                 that appeal has been brought to a conclusion or withdrawn and

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there is no further appeal pending in relation to the decision; or

                  (b)                 no further appeal against any decision made on the appeal or on

any such further appeal may be brought without the permission

of the court and—

                        (i)                        in a case where there is no fixed period within which

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that permission can be sought, that permission has been

refused or has not been sought; or

                        (ii)                       in a case where there is a fixed period within which that

permission can be sought, that permission has been

refused or that period has expired without permission

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having been sought.

           (1C)              No proceedings for an offence of contravening a notice under this

section may be commenced in Scotland—

                  (a)                 until the time during which an appeal against such a notice may

be brought has expired; or

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                  (b)                 where such an appeal has been brought, until that appeal has

been determined.

           (1D)              Such proceedings in Scotland must be commenced within six months

of—

                  (a)                 where no appeal has been brought, the time referred to in

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paragraph (a) of subsection (1C); and

                  (b)                 where an appeal has been brought and determined, the date of

that determination.”

 176   Modification of penalties for certain wireless telegraphy offences

     (1)    In subsection (1) of section 14 of the Wireless Telegraphy Act 1949 (c. 54) (either

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way offences), for paragraphs (aa) and (ab) there shall be substituted—

                  “(aa)                    any offence under section 1(1) of this Act consisting in the

establishment or use of a station for wireless telegraphy, or the

installation or use of wireless telegraphy apparatus, for the

purpose of making a broadcast (within the meaning of section 9

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of the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41));

                  (ab)                    any offence under section 1A of this Act where the relevant

contravention of section 1 would constitute an offence falling

within paragraph (aa);”.

     (2)    After subsection (1A), there shall be inserted—

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           “(1AA)              A person committing—

                  (a)                 an offence under section 1(1) of this Act other than—

                        (i)                        one which falls within subsection (1)(aa), or

                        (ii)                       one which falls within subsection (1A)(a), or

                  (b)                 an offence under section 1A of this Act other than—

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                        (i)                        one which falls within subsection (1)(ab), or

                        (ii)                       one which falls within subsection (1A)(aa),

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 2 — Spectrum use

    164

 

                         shall be liable, on summary conviction, to imprisonment for a term not

exceeding six months or to a fine not exceeding level 5 on the standard

scale, or to both.”

     (3)    In section 79(1) of the Telecommunications Act 1984 (c. 12) (offences in respect

of which apparatus may be seized), after paragraph (b) there shall be

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inserted—

                  “(bza)                    any offence under section 1A of that Act other than one where

the relevant contravention of section 1 of that Act would

constitute an offence so consisting;”.

     (4)    This section only applies in relation to offences committed after the

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commencement of this section.

 177   Fixed penalties for certain wireless telegraphy offences

Schedule 6 (which makes provision as respects fixed penalty notices for

summary offences under the Wireless Telegraphy Act 1949 (c. 54)) shall have

effect.

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 178   Power of arrest

     (1)    In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (offences

for which power of summary arrest available), after paragraph 2 there shall be

inserted—

“Wireless Telegraphy Act 1949

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        2A                An offence mentioned in section 14(1) of the Wireless Telegraphy Act

1949 (offences under that Act which are triable either way).”

     (2)    In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order

1989 (S.I. 1989/1341 (N.I. 12)) (offences for which power of summary arrest

available), after paragraph (i) there shall be inserted—

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                  “(j)                    an offence mentioned in section 14(1) of the Wireless

Telegraphy Act 1949 (offences under that Act which are triable

either way);”.

 179   Forfeiture etc. of restricted apparatus

     (1)    Apparatus to which this section applies shall be liable to forfeiture if,

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immediately before being seized, it was in a person’s custody or control in

contravention of a prohibition imposed by an order under section 7 of the

Wireless Telegraphy Act 1967 (c. 72) (restriction on dealings in and custody of

certain apparatus).

     (2)    This section applies to apparatus if it has been seized—

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           (a)           in pursuance of a warrant granted under section 15(1) of the Wireless

Telegraphy Act 1949; or

           (b)           in the exercise of the power conferred by section 79(3) of the

Telecommunications Act 1984.

     (3)    Apparatus forfeited under this section is to be forfeited to OFCOM and may be

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disposed of by them in any manner they think fit.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 2 — Spectrum use

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     (4)    Schedule 7 (which makes provision in relation to the seizure and forfeiture of

apparatus) shall have effect.

     (5)    The preceding provisions of this section and Schedule 7 apply only in relation

to apparatus seized after the commencement of this section.

     (6)    Sections 80 and 81 of the Telecommunications Act 1984 (c. 12) (which make

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provision for forfeiture of apparatus) are not to apply in relation to apparatus

seized after the commencement of this section.

     (7)    In section 7(5) of the Wireless Telegraphy Act 1967 (c. 72), paragraph (b) (which

allows a person to have custody or control of restricted apparatus when

authorised otherwise than by the Secretary of State) shall cease to have effect.

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Construction of 1949 Act

 180   Modification of definition of “undue interference”

For subsection (5) of section 19 of the Wireless Telegraphy Act 1949 (c. 54)

(meaning of undue interference) there shall be substituted—

           “(5)              Interference with any wireless telegraphy is not to be regarded as

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undue for the purposes of this Act unless it is also harmful.

           (5A)               For the purposes of this Act interference is harmful if—

                  (a)                 it creates dangers, or risks of danger, in relation to the

functioning of any service provided by means of wireless

telegraphy for the purposes of navigation or otherwise for

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safety purposes; or

                  (b)                 it degrades, obstructs or repeatedly interrupts anything which

is being broadcast or otherwise transmitted—

                        (i)                        by means of wireless telegraphy; and

                        (ii)                       in accordance with a licence under this Act, regulations

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under the proviso to section 1(1) of this Act or a grant of

recognised spectrum access under Chapter 2 of Part 2 of

the Communications Act 2003 or otherwise lawfully.”

 181   Modification of definition of “wireless telegraphy”

     (1)    The Secretary of State may by order modify the definition of “wireless

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telegraphy” in section 19(1) of the Wireless Telegraphy Act 1949 by

substituting a different frequency for the frequency (at the passing of this Act,

3,000 GHz) that is for the time being specified in that definition.

     (2)    No order is to be made containing provision authorised by this section unless

a draft of the order has been laid before Parliament and approved by a

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resolution of each House.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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Chapter 3

Disputes and appeals

Disputes

 182   Reference of disputes to OFCOM

     (1)    This section applies in the case of a dispute relating to the provision of network

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access if it is—

           (a)           a dispute between different communications providers;

           (b)           a dispute between a communications provider and a person who

makes associated facilities available;

           (c)            a dispute between different persons making such facilities available;

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           (d)           a dispute relating to the subject-matter of a condition set under section

71(1) between a communications provider or person who makes

associated facilities available and a person who (without being such a

person) is a person to whom such a condition applies; or

           (e)           a dispute relating to the subject-matter of such a condition between

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different persons each of whom (without being a communications

provider or a person who makes associated facilities available) is a

person to whom such a condition applies.

     (2)    This section also applies in the case of any other dispute if—

           (a)           it relates to rights or obligations conferred or imposed by or under this

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Part or any of the enactments relating to the management of the radio

spectrum that are not contained in this Part;

           (b)           it is a dispute between different communications providers; and

           (c)           it is not an excluded dispute.

     (3)    Any one or more of the parties to the dispute may refer it to OFCOM.

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     (4)    A reference made under this section is to be made in such manner as OFCOM

may require.

     (5)    The way in which a requirement under subsection (4)—

           (a)           is to be imposed, or

           (b)           may be withdrawn or modified,

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            is by a notice published in such manner as OFCOM consider appropriate for

bringing the requirement, withdrawal or modification to the attention of the

persons who, in their opinion, are likely to be affected by it.

     (6)    Requirements imposed under subsection (4) may make different provision for

different cases.

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     (7)    A dispute is an excluded dispute for the purposes of subsection (2) if it is

about—

           (a)           obligations imposed on a communications provider by SMP apparatus

conditions;

           (b)           contraventions of sections 122 to 124;

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           (c)           obligations imposed on a communications provider by or under any of

sections 125 to 128; or

           (d)           the operation in the case of a communications provider of section 131.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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     (8)    For the purposes of this section—

           (a)           the disputes that relate to the provision of network access include

disputes as to the terms or conditions on which it is or may be provided

in a particular case; and

           (b)           the disputes that relate to an obligation include disputes as to the terms

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or conditions on which any transaction is to be entered into for the

purpose of complying with that obligation.

 183   Action by OFCOM on dispute reference

     (1)    This section applies where a dispute is referred to OFCOM under and in

accordance with section 182.

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     (2)    OFCOM must decide whether or not it is appropriate for them to handle the

dispute.

     (3)    Unless they consider—

           (a)           that there are alternative means available for resolving the dispute,

           (b)           that a resolution of the dispute by those means would be consistent

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with the Community requirements set out in section 4, and

           (c)           that a prompt and satisfactory resolution of the dispute is likely if those

alternative means are used for resolving it,

            their decision must be a decision that it is appropriate for them to handle the

dispute.

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     (4)    As soon as reasonably practicable after OFCOM have decided—

           (a)           that it is appropriate for them to handle the dispute, or

           (b)           that it is not,

            they must inform each of the parties to the dispute of their decision and of their

reasons for it.

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     (5)    The notification must state the date of the decision.

     (6)    Where—

           (a)           OFCOM decide that it is not appropriate for them to handle the

dispute, but

           (b)           the dispute is not resolved by other means before the end of the four

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months after the day of OFCOM’s decision,

            the dispute may be referred back to OFCOM by one or more of the parties to

the dispute.

 184   Legal proceedings about referred disputes

     (1)    Where a dispute is referred or referred back to OFCOM under this Chapter, the

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reference is not to prevent—

           (a)           the person making it,

           (b)           another party to the dispute,

           (c)           OFCOM, or

           (d)           any other person,

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            from bringing, or continuing, any legal proceedings with respect to any of the

matters under dispute.

     (2)    Nor is the reference or reference back to OFCOM under this Chapter of a

dispute to prevent OFCOM from—

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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           (a)           giving a notification in respect of something that they have reasonable

ground for believing to be a contravention of any obligation imposed

by or under any an enactment;

           (b)           exercising any of their other powers under any enactment in relation to

a contravention of such an obligation; or

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           (c)           taking any other step in preparation for or with a view to doing

anything mentioned in the preceding paragraphs.

     (3)    If, in any legal proceedings with respect to a matter to which a dispute relates,

the court orders the handling of the dispute by OFCOM to be stayed or sisted—

           (a)           OFCOM is required to make a determination for resolving the dispute

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only if the stay or sist is lifted or expires; and

           (b)           the period during which the stay or sist is in force must be disregarded

in determining the period within which OFCOM are required to make

such a determination.

     (4)    Subsection (1) is subject to section 187(8) and to any agreement to the contrary

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binding the parties to the dispute.

     (5)    In this section “legal proceedings” means civil or criminal proceedings in or

before a court.

 185   Procedure for resolving disputes

     (1)    This section applies where—

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           (a)           OFCOM have decided under section 183(2) that it is appropriate for

them to handle a dispute, or

           (b)           a dispute is referred back to OFCOM under section 183(6).

     (2)    OFCOM must—

           (a)           consider the dispute; and

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           (b)           make a determination for resolving it.

     (3)    The procedure for the consideration and determination of the dispute is to be

the procedure that OFCOM consider appropriate.

     (4)    In the case of a dispute referred back to OFCOM under section 183(6), that

procedure may involve allowing the continuation of a procedure that has

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already been begun for resolving the dispute by alternative means.

     (5)    Except in exceptional circumstances and subject to section 184(3), OFCOM

must make their determination no more than four months after the following

day—

           (a)           in a case falling within subsection (1)(a), the day of the decision by

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OFCOM that it is appropriate for them to handle the dispute; and

           (b)           in a case falling within subsection (1)(b), the day on which the dispute

is referred back to them.

     (6)    Where it is practicable for OFCOM to make their determination before the end

of the four month period, they must make it as soon in that period as

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practicable.

     (7)    OFCOM must—

           (a)           send a copy of their determination, together with a full statement of

their reasons for it, to every party to the dispute; and

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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           (b)           publish so much of their determination as (having regard, in particular,

to the need to preserve commercial confidentiality) they consider it

appropriate to publish.

     (8)    The publication of information under this section must be in such manner as

OFCOM consider appropriate for bringing it to the attention, to the extent that

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they consider appropriate, of members of the public.

 186   Disputes involving other member States

     (1)    This section applies where it appears to OFCOM that a dispute referred or

referred back to them under this Chapter relates partly to a matter falling

within the jurisdiction of the regulatory authorities of another member State.

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     (2)    A dispute relates to matters falling within the jurisdiction of the regulatory

authorities of another member State to the extent that—

           (a)           it relates to the carrying on of activities by one or both of the parties to

the dispute in more than one member State or to activities carried on by

different parties to the dispute in different member States; and

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           (b)           the activities to which the dispute relates, so far as they are carried on

in another member State, are carried on in the member State for which

those authorities are the regulatory authorities.

     (3)    For the purposes of subsection (2) the activities that are carried on in a member

State include anything done by means of an electronic communications

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network, or part of such a network, which is situated in that member State.

     (4)    Before taking any steps under this Chapter in relation to the reference or the

dispute, OFCOM must consult the other regulatory authorities within whose

jurisdiction the matter falls.

     (5)    It shall be the duty of OFCOM to secure that steps taken in relation to the

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reference or dispute (whether taken by them or by the other regulatory

authorities) are, so far as practicable, agreed between OFCOM and those

authorities.

     (6)    Accordingly, section 185 is to have effect in relation to the reference as if the

period for making a determination which is specified in subsection (5) of that

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section were such period (if any) as may be agreed between—

           (a)           OFCOM; and

           (b)           the other regulatory authorities within whose jurisdiction the matter

falls.

 187   Resolution of referred disputes

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     (1)    Where OFCOM make a determination for resolving a dispute referred to them

under this Chapter, their only powers are those conferred by this section.

     (2)    Their main power (except in the case of a dispute relating to rights and

obligations conferred or imposed by or under the enactments relating to the

management of the radio spectrum) is to do one or more of the following—

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           (a)           to make a declaration setting out the rights and obligations of the

parties to the dispute;

           (b)           to give a direction fixing the terms or conditions of transactions

between the parties to the dispute;

 

 

 
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