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Communications Bill


Communications Bill
Part 6 — Miscellaneous and Supplemental

    334

 

Guidelines as to penalties

 385   Penalties imposed by OFCOM

     (1)    It shall be the duty of OFCOM to prepare and publish a statement containing

the guidelines they propose to follow in determining the amount of penalties

imposed by them under provisions contained in this Act or any other

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enactment apart from the Competition Act 1998 (c. 41).

     (2)    OFCOM may from time to time revise that statement as they think fit.

     (3)    Where OFCOM make or revise their statement under this section, they must

publish the statement or (as the case may be) the revised statement in such

manner as they consider appropriate for bringing it to the attention of the

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

     (4)    Before publishing a statement or revised statement under this section OFCOM

must consult both—

           (a)           the Secretary of State, and

           (b)           such other persons as they consider appropriate,

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            about the guidelines they are proposing to include in the statement.

     (5)    Before determining how to publish a statement or revised statement under this

section OFCOM must consult the Secretary of State.

     (6)    It shall be the duty of OFCOM, in determining the amount of any penalty to be

imposed by them under this Act or any other enactment (apart from the

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Competition Act 1998) to have regard to the guidelines contained in the

statement for the time being in force under this section.

Disclosure of information

 386   General restrictions on disclosure of information

     (1)    Subject to the following provisions of this section, information with respect to

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a particular business which has been obtained in exercise of a power conferred

by—

           (a)           this Act,

           (b)           the enactments relating to the management of the radio spectrum (so

far as not contained in this Act),

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           (c)           the 1990 Act, or

           (d)           the 1996 Act,

            is not, so long as that business continues to be carried on, to be disclosed

without the consent of the person for the time being carrying on that business.

     (2)    Subsection (1) does not apply to any disclosure of information which is made—

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           (a)           for the purpose of facilitating the carrying out by OFCOM of any of

their functions;

           (b)           for the purpose of facilitating the carrying out by any relevant person

of any relevant function;

           (c)           for the purpose of facilitating the carrying out by the Comptroller and

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Auditor General of any of his functions;

 

 

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           (d)           for any of the purposes specified in section 17(2)(a) to (d) of the Anti-

terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings

and investigations);

           (e)           for the purpose of any civil proceedings brought under or by virtue of

this Act or any of the enactments or instruments mentioned in

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subsection (5); or

           (f)           for the purpose of securing compliance with an international

obligation.

     (3)    Each of the following is a relevant person for the purposes of this section—

           (a)           a Minister of the Crown and the Treasury;

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           (b)           the Scottish Executive;

           (c)           a Northern Ireland department;

           (d)           the Office of Fair Trading;

           (e)           the Competition Commission;

           (f)           the Consumer Panel;

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           (g)           the Welsh Authority;

           (h)           a local weights and measures authority in Great Britain;

           (i)           any other person specified for the purposes of this subsection in an

order made by the Secretary of State.

     (4)    The following are relevant functions for the purposes of this section—

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           (a)           any function conferred by or under this Act;

           (b)           any function conferred by or under any enactment or instrument

mentioned in subsection (5);

           (c)           any other function specified for the purposes of this subsection in an

order made by the Secretary of State.

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     (5)    The enactments and instruments referred to in subsections (2) and (4) are—

           (a)           the Wireless Telegraphy Act 1949 (c. 54);

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

           (c)           the Wireless Telegraphy Act 1967 (c. 72);

           (d)           the Trade Descriptions Act 1968 (c. 29);

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           (e)           the Fair Trading Act 1973 (c. 41);

           (f)           the Consumer Credit Act 1974 (c. 39);

           (g)           the Competition Act 1980 (c. 21);

           (h)           the Telecommunications Act 1984 (c. 12);

           (i)           the Consumer Protection Act 1987 (c. 43);

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           (j)           the 1990 Act;

           (k)           the 1996 Act;

           (l)           the Wireless Telegraphy Act 1998 (c. 6);

           (m)           the Competition Act 1998 (c. 41);

           (n)           the Enterprise Act 2002 (c. 40);

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           (o)           the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049

(N.I. 20));

           (p)           the Control of Misleading Advertisements Regulations 1988 (S.I. 1988/

915).

     (6)    Nothing in this section—

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           (a)           limits the matters that may be published under section 14, 23 or 383;

 

 

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Part 6 — Miscellaneous and Supplemental

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           (b)           limits the matters that may be included in, or made public as part of, a

report made by OFCOM by virtue of a provision of this Act or the

Office of Communications Act 2002 (c. 11);

           (c)           prevents the disclosure of anything for the purposes of a report of legal

proceedings in which it has been publicly disclosed;

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           (d)           applies to information that has been published or made public as

mentioned in paragraphs (a) to (c).

     (7)    Nothing in this section applies to information obtained in exercise of the

powers conferred by section 196 of the 1990 Act (powers of entry and search).

     (8)    Information obtained by OFCOM in exercise of functions which are exercisable

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by them concurrently with the Office of Fair Trading under Part 1 of the

Competition Act 1998 (c. 41) is subject to Part 9 of the Enterprise Act 2002 (c.

40), and not to the preceding provisions of this section.

     (9)    Section 18 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (restriction

on disclosure of information for overseas purposes) shall have effect in relation

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to a disclosure by virtue of subsection (2)(d) as it applies in relation to a

disclosure in exercise of a power to which section 17 of that Act applies.

     (10)   A person who discloses information in contravention of this section is guilty of

an offence and shall be liable—

           (a)           on summary conviction, to a fine not exceeding the statutory

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maximum;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

two years or to a fine, or to both.

     (11)   No order is to be made containing provision authorised by subsection (3) or (4)

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

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resolution of each House.

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

before any court, or proceedings before any tribunal established by or under

any enactment.

Notifications etc. and electronic working

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 387   Service of notifications and other documents

     (1)    This section applies where provision made (in whatever terms) by or under an

enactment specified in subsection (2) authorises or requires—

           (a)           a notification to be given to any person; or

           (b)           a document of any other description (including a copy of a document)

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to be sent to any person.

     (2)    Those enactments are—

           (a)           this Act;

           (b)           the Office of Communications Act 2002;

           (c)           the enactments relating to the management of the radio spectrum (so

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far as not contained in this Act);

           (d)           Schedule 2 to the Telecommunications Act 1984 (c. 12);

           (e)           the 1990 Act; and

           (f)           the 1996 Act.

 

 

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     (3)    The notification or document may be given or sent to the person in question—

           (a)           by delivering it to him;

           (b)           by leaving it at his proper address; or

           (c)           by sending it by post to him at that address.

     (4)    The notification or document may be given or sent to a body corporate by

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being given or sent to the secretary or clerk of that body.

     (5)    The notification or document may be given or sent to a firm by being given or

sent to—

           (a)           a partner in the firm; or

           (b)           a person having the control or management of the partnership

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business.

     (6)    The notification or document may be given or sent to an unincorporated body

or association by being given or sent to a member of the governing body of the

body or association.

     (7)    For the purposes of this section and section 7 of the Interpretation Act 1978

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(c. 30) (service of documents by post) in its application to this section, the

proper address of a person is—

           (a)           in the case of body corporate, the address of the registered or principal

office of the body;

           (b)           in the case of a firm, unincorporated body or association, the address of

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the principal office of the partnership, body or association;

           (c)           in the case of a person to whom the notification or other document is

given or sent in reliance on any of subsections (4) to (6), the proper

address of the body corporate, firm or (as the case may be) other body

or association in question; and

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           (d)           in any other case, the last known address of the person in question.

     (8)           In the case of—

           (a)           a company registered outside the United Kingdom,

           (b)           a firm carrying on business outside the United Kingdom, or

           (c)           an unincorporated body or association with offices outside the United

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Kingdom,

            the references in subsection (7) to its principal office include references to its

principal office within the United Kingdom (if any).

     (9)    In this section—

                    “document” includes anything in writing; and

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                    “notification” includes notice;

            and references in this section to giving or sending a notification or other

document to a person include references to transmitting it to him and to

serving it on him.

     (10)   This section has effect subject to section 388.

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 388   Notifications and documents in electronic form

     (1)    This section applies where—

           (a)           section 387 authorises the giving or sending of a notification or other

document by its delivery to a particular person (“the recipient”); and

           (b)           the notification or other document is transmitted to the recipient—

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Communications Bill
Part 6 — Miscellaneous and Supplemental

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                  (i)                 by means of an electronic communications network; or

                  (ii)                by other means but in a form that nevertheless requires the use

of apparatus by the recipient to render it intelligible.

     (2)    The transmission has effect for the purposes of the enactments specified in

section 387(2) as a delivery of the notification or other document to the

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recipient, but only if the requirements imposed by or under this section are

complied with.

     (3)    Where the recipient is OFCOM—

           (a)           they must have indicated their willingness to receive the notification or

other document in a manner mentioned in subsection (1)(b);

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           (b)           the transmission must be made in such manner and satisfy such other

conditions as they may require; and

           (c)           the notification or other document must take such form as they may

require.

     (4)    Where the person making the transmission is OFCOM, they may (subject to

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subsection (5)) determine—

           (a)           the manner in which the transmission is made; and

           (b)           the form in which the notification or other document is transmitted.

     (5)    Where the recipient is a person other than OFCOM—

           (a)           the recipient, or

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           (b)           the person on whose behalf the recipient receives the notification or

other document,

            must have indicated to the person making the transmission the recipient’s

willingness to receive notifications or documents transmitted in the form and

manner used.

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     (6)    An indication to any person for the purposes of subsection (5)—

           (a)           must be given to that person in such manner as he may require;

           (b)           may be a general indication or one that is limited to notifications or

documents of a particular description;

           (c)           must state the address to be used and must be accompanied by such

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other information as that person requires for the making of the

transmission; and

           (d)           may be modified or withdrawn at any time by a notice given to that

person in such manner as he may require.

     (7)    An indication, requirement or determination given, imposed or made by

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OFCOM for the purposes of this section is to be given, imposed or made by

being published in such manner as they consider appropriate for bringing it to

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

     (8)    Subsection (9) of section 387 applies for the purposes of this section as it applies

for the purposes of that section.

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 389   Timing and location of things done electronically

     (1)    The Secretary of State may by order make provision specifying, for the

purposes of the enactments specified in section 387(2), the manner of

determining—

           (a)           the times at which things done under those enactments by means of

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electronic communications networks are done; and

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

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           (b)           the places at which such things are so done, and at which things

transmitted by means of such networks are received.

     (2)    The provision made by subsection (1) may include provision as to the country

or territory in which an electronic address is to be treated as located.

     (3)    An order made by the Secretary of State may also make provision about the

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manner of proving in any legal proceedings—

           (a)           that something done by means of an electronic communications

network satisfies the requirements of the enactments specified in

section 387(2) for the doing of that thing; and

           (b)           the matters mentioned in subsection (1)(a) and (b).

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     (4)    An order under this section may provide for such presumptions to apply

(whether conclusive or not) as the Secretary of State considers appropriate.

Other miscellaneous provisions

 390   Purchase of Duchy of Lancaster land

     (1)    The Chancellor and Council of the Duchy of Lancaster may, if they think fit,

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agree with a person who provides a public electronic communications network

for the sale, and absolutely make sale, for such sum of money as appears to

them sufficient consideration for the same, of any land which—

           (a)           belongs to Her Majesty in right of the Duchy of Lancaster; and

           (b)           is land which that person seeks to acquire for, or in connection with, the

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provision of his network.

     (2)    In this section “public electronic communications network” has the same

meaning as in Chapter 1 of Part 2.

 391   Repeal of certain provisions of the Telecommunications Act 1984

     (1)    The Telecommunications Act 1984 (c. 12) shall be amended as follows.

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     (2)    In Part 5 (transfer of undertakings of British Telecommunications), the

following provisions (which include spent provisions) shall cease to have

effect—

           (a)           section 60;

           (b)           section 61(1) to (6);

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           (c)           section 62;

           (d)           section 63(1) to (4);

           (e)           sections 64 to 67;

           (f)           section 69 to 71;

           (g)           sections 72(2), (4) and (5); and

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           (h)           section 73.

     (3)    In section 68(2) (liability of Secretary of State on winding up), after “any

outstanding liability of the successor company” there shall be inserted “for the

payment of pensions”.

     (4)    In Part 7 (miscellaneous and supplemental) the following provisions shall

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cease to have effect—

           (a)           section 93 (grants to promote interests of disabled persons); and

 

 

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Part 6 — Miscellaneous and Supplemental

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           (b)           section 97 (contributions by local authorities towards the provision of

telecommunications facilities).

Supplemental

 392   Expenses

There shall be paid out of money provided by Parliament—

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           (a)           any expenditure incurred by the Secretary of State for or in connection

with the carrying out of any of his functions under this Act; and

           (b)           any increase attributable to this Act in the sums which are payable out

of money so provided under any other Act.

 393   Destination of licence fees and penalties

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     (1)    This section applies (subject to section 394) to the following amounts—

           (a)           an amount paid to OFCOM in respect of a penalty imposed by them

under Chapter 1 of Part 2 (including a penalty imposed by virtue of

section 188(5));

           (b)           so much of an amount paid to OFCOM under numbering conditions in

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respect of an allocation of telephone numbers as is an amount

determined by reference to an indication given in response to an

invitation such as is mentioned in section 55(5)(a);

           (c)           an amount paid to OFCOM in pursuance of an obligation imposed by

or under the Wireless Telegraphy Act 1998 (c. 6);

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           (d)           an amount paid to OFCOM in respect of a penalty imposed by them

under section 172;

           (e)           a cash bid amount paid to OFCOM under a Broadcasting Act licence for

the first year falling within the period for which the licence is in force;

           (f)           an amount paid to OFCOM under such a licence for a subsequent year

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as the amount equal to a cash bid amount increased by the appropriate

percentage;

           (g)           an amount paid to OFCOM under such a licence as an amount

representing a percentage of relevant revenue for an accounting period;

           (h)           an amount paid to OFCOM in respect of a penalty imposed by them

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under Part 1 or 3 of the 1990 Act, Part 1 or 2 of the 1996 Act or Part 3 of

this Act.

     (2)    Where OFCOM receive an amount to which this section applies, it must be

paid into the appropriate Consolidated Fund; but this subsection does not

apply to an amount which is required by OFCOM for making an adjustment in

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respect of an overpayment.

     (3)    The reference in subsection (2) to the payment of an amount into the

appropriate Consolidated Fund—

           (a)           in the case of an amount received in respect of matters appearing to

OFCOM to have no connection with Northern Ireland, is a reference to

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the payment of the amount into the Consolidated Fund of the United

Kingdom;

           (b)           in the case of an amount received in respect of matters appearing to

OFCOM to have a connection with Northern Ireland but no connection

with the rest of the United Kingdom, is a reference to the payment of

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the amount into the Consolidated Fund of Northern Ireland; and

 

 

 
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