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Communications Bill


Communications Bill
Part 1 — Functions of OFCOM

    1

 

A

Bill

[AS AMENDED IN COMMITTEE]

To

Confer functions on the Office of Communications; to make provision about

the regulation of the provision of electronic communications networks and

services and of the use of the electro-magnetic spectrum; to make provision

about the regulation of broadcasting and of the provision of television and

radio services; to make provision about newspaper mergers and, in that

connection, to amend the Enterprise Act 2002; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Part 1

Functions of OFCOM

Transferred and assigned functions

 1     Functions and general powers of OFCOM

     (1)    The Office of Communications (“OFCOM”) shall have the following

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functions—

           (a)           the functions transferred to OFCOM under section 2; and

           (b)           such other functions as may be conferred on OFCOM by or under any

enactment (including this Act).

     (2)    OFCOM shall also have any functions in relation to telephone numbers that are

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conferred on them by the law of the Isle of Man or of any of the Channel

Islands.

     (3)    OFCOM may do anything which appears to them to be incidental or conducive

to the carrying out of their functions, including borrow money.

 
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Communications Bill
Part 1 — Functions of OFCOM

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     (4)    OFCOM are not to borrow money except with the consent of the Secretary of

State, or in accordance with a general authorisation given by him.

     (5)    OFCOM’s powers under subsection (3) include, in particular—

           (a)           power to undertake research and development work in connection

with any matter in relation to which they have functions;

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           (b)           power to promote the carrying out of such research and development

by others, or otherwise to arrange for it to be carried out by others;

           (c)           power to institute and carry on criminal proceedings in England and

Wales or Northern Ireland for an offence relating to a matter in relation

to which they have functions; and

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           (d)           power, in such cases and in such circumstances as they may think fit, to

make payments (where no legal liability arises) to persons adversely

affected by the carrying out by OFCOM of any of their functions.

     (6)    In exercise of their powers under subsection (3), OFCOM must establish and

maintain separate offices in each of the following parts of the United

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Kingdom—

           (a)           England;

           (b)           Wales;

           (c)           Scotland; and

           (d)           Northern Ireland.

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     (7)    Part 2 of the Deregulation and Contracting Out Act 1994 (c. 40) (contracting

out) is to have effect in relation to the functions conferred on OFCOM by or

under any enactment as if—

           (a)           OFCOM were an office holder within the meaning of that Part; and

           (b)           a power of OFCOM to make subordinate legislation were excluded

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from section 69 of that Act to the extent only that it is exercisable by

statutory instrument.

     (8)    In this section “telephone numbers” has the same meaning as in Chapter 1 of

Part 2.

 2     Transfer of functions of pre-commencement regulators

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     (1)    As from such date as the Secretary of State may appoint for the coming into

force of this section, the functions that are set out in Schedule 1 (functions of

the Secretary of State and of the pre-commencement regulators) shall become

functions of OFCOM in accordance with that Schedule.

     (2)    References in any enactment to a person who is a person from whom functions

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are transferred by virtue of this section are to have effect, so far as necessary for

the purposes of the transfers, as references to OFCOM.

     (3)    The functions of OFCOM are to include the carrying out of the transferred

functions, at times after the time when they become functions of OFCOM, in

relation to anything occurring before that time.

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     (4)    The provisions of this section have effect subject to—

           (a)           the modifications made by this Act of the enactments relating to the

transferred functions; and

           (b)           any express transitional or consequential provisions made by or under

this Act in relation to those enactments.

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Communications Bill
Part 1 — Functions of OFCOM

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General duties in carrying out functions

 3     General duties of OFCOM

     (1)    It shall be the duty of OFCOM, in carrying out their functions—

           (a)           to further the interests of consumers in relevant markets, where

appropriate by promoting competition; and

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           (b)                         to further the interests of the community as a whole in relation to

communications matters.

     (2)    The things which, by virtue of subsection (1), OFCOM are required to secure in

the carrying out of their functions include, in particular, each of the

following—

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           (a)           the optimal use for wireless telegraphy of the electro-magnetic

spectrum;

           (b)           the availability throughout the United Kingdom of a wide range of

electronic communications services;

           (c)           the availability throughout the United Kingdom of a wide range of

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television and radio services which (taken as a whole) are both of high

quality and calculated to appeal to a variety of tastes and interests;

           (d)           the maintenance of a plurality of providers of different television and

radio services;

           (e)           the application, in the case of all television and radio services, of

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standards that provide adequate protection to members of the public

from the inclusion of offensive and harmful material in such services;

and

           (f)           the application, in the case of all television and radio services, of

standards that provide adequate protection to members of the public

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and all other persons from both—

                  (i)                 unfair treatment in programmes included in such services; and

                  (ii)                unwarranted infringements of privacy resulting from activities

carried on for the purposes of such services.

     (3)    In performing their duties under subsection (1), OFCOM must have regard, in

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particular, to such of the following as appear to them to be relevant in the

circumstances—

           (a)           the desirability of promoting competition in relevant markets;

           (b)           the principles under which regulatory activities should be transparent,

accountable, proportionate, consistent and targeted only at cases in

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which action is needed;

           (c)           the desirability of promoting and facilitating the development and use

of effective forms of self-regulation;

           (d)           any other principles appearing to OFCOM to represent the best

regulatory practice;

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           (e)           the desirability of encouraging investment and innovation in relevant

markets;

           (f)           the different needs and interests, so far as the use of the electro-

magnetic spectrum for wireless telegraphy is concerned, of all persons

who may wish to make use of it;

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           (g)           the need to secure that the application in the case of television and radio

services of standards falling within subsection (2)(e) and (f) is in the

manner that best guarantees an appropriate level of freedom of

expression;

 

 

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Part 1 — Functions of OFCOM

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           (h)           the vulnerability of children and of others whose circumstances appear

to OFCOM to put them in need of special protection;

           (i)           the needs of persons with disabilities, of the elderly and of those on low

incomes;

           (j)           the desirability of preventing crime and disorder;

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           (k)           the opinions of consumers in relevant markets and of members of the

public generally;

           (l)           the different interests of persons in the different parts of the United

Kingdom and of those living in rural and in urban areas;

           (m)           the extent to which, in the circumstances of the case, the furthering or

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securing of the matters mentioned in subsections (1) and (2) is

reasonably practicable.

     (4)    In performing their duty under this section of furthering the interests of

consumers, OFCOM must have regard, in particular, to the interests of those

consumers in respect of choice, price, quality of service and value for money.

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     (5)    Where it appears to OFCOM, in relation to the carrying out of any of the

functions mentioned in section 4(1), that any of their general duties conflict

with one or more of their duties under sections 4, 21 and 22, priority must be

given to their duties under those sections.

     (6)    Where it appears to OFCOM that any of their general duties conflict with each

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other in a particular case, they must secure that the conflict is resolved in the

manner they think best in the circumstances.

     (7)           Every report under paragraph 12 of the Schedule to the Office of

Communications Act 2002 (c. 11) (OFCOM’s annual report) for a financial year

must contain a summary of the manner in which, in that year, OFCOM

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resolved conflicts arising in important cases between their general duties.

     (8)    A case is an important case for the purposes of subsection (7) only if—

           (a)           it involved one or more of the matters mentioned in subsection (9); or

           (b)           it otherwise appears to OFCOM to have been of unusual importance.

     (9)           Those matters are—

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           (a)           a major change in the activities carried on by OFCOM;

           (b)           matters likely to have a significant impact on persons carrying on

businesses in any of the relevant markets; or

           (c)           matters likely to have a significant impact on the general public in the

United Kingdom or in a part of the United Kingdom.

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     (10)   This section is subject to sections 363(11) and 364(11) of this Act and to section

119A(4) of the Enterprise Act 2002 (c. 40) (which applies to functions conferred

on OFCOM by Chapter 2 of Part 5 of this Act).

     (11)   In this section—

                    “communications matters” means the matters in relation to which

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OFCOM have functions;

                    “general duties”, in relation to OFCOM, means—

                  (a)                 their duties under subsections (1) to (4); and

                  (b)                 the duty which, under section 104(5), is to rank equally for the

purposes of subsections (5) and (6) with their duties under this

45

section;

 

 

Communications Bill
Part 1 — Functions of OFCOM

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                    “relevant markets” means markets for any of the services, facilities,

apparatus or directories in relation to which OFCOM have functions.

 4     Duties for the purpose of fulfilling Community obligations

     (1)    This section applies to the following functions of OFCOM—

           (a)           their functions under Chapter 1 of Part 2;

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           (b)           their functions under the enactments relating to the management of the

radio spectrum;

           (c)           their functions under Chapter 3 of Part 2 in relation to disputes referred

to them under section 182;

           (d)           their functions under sections 21 and 22 so far as they relate to

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information required for purposes connected with matters in relation

to which functions specified in this subsection are conferred on

OFCOM; and

           (e)           their functions under section 23 so far as they are carried out for the

purpose of making information available to persons mentioned in

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subsection (2)(a) to (c) of that section.

     (2)    It shall be the duty of OFCOM, in carrying out any of those functions, to act in

accordance with the six Community requirements (which give effect, amongst

other things, to the requirements of Article 8 of the Framework Directive and

are to be read accordingly).

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     (3)    The first Community requirement is a requirement to promote competition—

           (a)           in relation to the provision of electronic communications networks and

electronic communications services;

           (b)           in relation to the provision and making available of services and

facilities that are provided or made available in association with the

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provision of electronic communications networks or electronic

communications services; and

           (c)           in relation to the supply of directories capable of being used in

connection with the use of electronic communications networks or

electronic communications services.

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     (4)    The second Community requirement is a requirement to secure that OFCOM’s

activities contribute to the development of the European internal market.

     (5)    The third Community requirement is a requirement to promote the interests of

all persons who are citizens of the European Union (within the meaning of

Article 17 of the Treaty establishing the European Community).

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     (6)    The fourth Community requirement is a requirement to take account of the

desirability of OFCOM’s carrying out their functions in a manner which, so far

as practicable, does not favour—

           (a)           one form of electronic communications network, electronic

communications service or associated facility; or

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           (b)           one means of providing or making available such a network, service or

facility,

            over another.

     (7)    The fifth Community requirement is a requirement to encourage, to such

extent as OFCOM consider appropriate for the purpose mentioned in

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subsection (8), the provision of network access and service interoperability.

 

 

Communications Bill
Part 1 — Functions of OFCOM

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     (8)    That purpose is the purpose of securing—

           (a)           efficiency and sustainable competition in the markets for electronic

communications networks, electronic communications services and

associated facilities; and

           (b)           the maximum benefit for the persons who are customers of

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communications providers and of persons who make such facilities

available.

     (9)    The sixth Community requirement is a requirement to encourage such

compliance with the standards mentioned in subsection (10) as is necessary

for—

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           (a)           facilitating service interoperability; and

           (b)           securing freedom of choice for the customers of communications

providers.

     (10)   Those standards are—

           (a)           standards or specifications from time to time drawn up and published

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in accordance with Article 17 of the Framework Directive;

           (b)           the standards and specifications from time to time adopted by—

                  (i)                 the European Committee for Standardisation;

                  (ii)                the European Committee for Electrotechnical Standardisation;

or

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                  (iii)               the European Telecommunications Standards Institute; and

           (c)           the international standards and recommendations from time to time

adopted by—

                  (i)                 the International Telecommunication Union;

                  (ii)                the International Organisation for Standardisation; or

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                  (iii)               the International Electrotechnical Committee.

     (11)   Where it appears to OFCOM that any of the Community requirements conflict

with each other, they must secure that the conflict is resolved in the manner

they think best in the circumstances.

     (12)   In this section—

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                    “the Framework Directive” means Directive 2002/21/EC of the European

Parliament and of the Council on a common regulatory framework for

electronic communications networks and services;

                    “network access” and “service interoperability” each has the same

meaning as in Chapter 1 of Part 2.

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 5     Directions in respect of networks and spectrum functions

     (1)    This section applies to the following functions of OFCOM—

           (a)           their functions under Part 2; and

           (b)           their functions under the enactments relating to the management of the

radio spectrum that are not contained in that Part.

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     (2)    It shall be the duty of OFCOM to carry out those functions in accordance with

such general or specific directions as may be given to them by the Secretary of

State.

     (3)    The Secretary of State’s power to give directions under this section shall be

confined to a power to give directions for one or more of the following

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purposes—

 

 

Communications Bill
Part 1 — Functions of OFCOM

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           (a)           in the interests of national security;

           (b)           in the interests of relations with the government of a country or

territory outside the United Kingdom;

           (c)           for the purpose of securing compliance with international obligations

of the United Kingdom;

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           (d)           in the interests of the safety of the public or of public health.

     (4)    The Secretary of State is not entitled by virtue of any provision of this section

to direct OFCOM to suspend or restrict—

           (a)           a person’s entitlement to provide an electronic communications

network or electronic communications service; or

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           (b)           a person’s entitlement to make available associated facilities.

     (5)    The Secretary of State must publish a direction under this section in such

manner as appears to him to be appropriate for bringing it to the attention of

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

     (6)    The Secretary of State is not required by subsection (5) to publish a direction,

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and he may exclude matter from a direction he does publish, if he considers the

publication of the direction or matter to be—

           (a)           against the interests of national security; or

           (b)           against the interests of relations with the government of a country or

territory outside the United Kingdom.

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     (7)    Subsection (4) does not affect the Secretary of State’s powers under section 129.

 6     Duties to review regulatory burdens

     (1)    OFCOM must keep the carrying out of their functions under review with a

view to securing that regulation by OFCOM does not involve—

           (a)           the imposition of burdens which are unnecessary; or

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           (b)           the maintenance of burdens which have become unnecessary.

     (2)    In reviewing their functions under this section it shall be the duty of OFCOM—

           (a)           to have regard to the extent to which the matters which they are

required under section 3 to further or to secure are already furthered or

secured, or are likely to be furthered or secured, by effective self-

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regulation; and

           (b)           in the light of that, to consider to what extent it would be appropriate

to remove or reduce regulatory burdens imposed by OFCOM.

     (3)    In determining for the purposes of this section whether procedures for self-

regulation are effective OFCOM must consider, in particular—

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           (a)           whether those procedures are administered by a person who is

sufficiently independent of the persons who may be subjected to the

procedures; and

           (b)           whether adequate arrangements are in force for funding the activities

of that person in relation to those procedures.

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     (4)    OFCOM must, from time to time, publish a statement setting out how they

propose, during the period for which the statement is made, to secure that

regulation by OFCOM does not involve the imposition or maintenance of

unnecessary burdens.

     (5)    The first statement to be published under this section—

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