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Communications Bill


Communications Bill
Part 6 — Miscellaneous and Supplemental

    341

 

           (c)           in any other case, is a reference to the payment of the amount, in such

proportions as OFCOM consider appropriate, into each of those Funds.

     (4)    OFCOM must, in respect of each financial year, prepare an account showing—

           (a)           the amounts to which this section applies that have been received by

them during that year;

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           (b)           the sums paid into the Consolidated Funds of the United Kingdom and

Northern Ireland respectively under this section in respect of those

amounts;

           (c)                         the aggregate amount of the sums received by them during that year

that is retained in accordance with a statement of principles under

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section 394 for meeting the costs of carrying out functions mentioned in

subsection (4) of that section during that year;

           (d)           the aggregate amount that they estimate will fall to be so retained out

of amounts due to them and likely to be paid or recovered; and

           (e)                         the cost to OFCOM of carrying out during that year the functions in

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respect of which amounts are or are to be retained in accordance with

such a statement.

     (5)           OFCOM must send that account to the Comptroller and Auditor General not

later than the end of the month of November following the financial year to

which it relates.

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     (6)    The Comptroller and Auditor General must examine, certify and report on the

account and lay copies of it, together with his report, before each House of

Parliament.

     (7)    In this section—

                    “the appropriate percentage” has the same meaning as in section 19 of the

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1990 Act;

                    “cash bid amount” means an amount specified in a cash bid for a

Broadcasting Act licence or the amount determined by OFCOM for the

purposes of any provision of the 1990 Act or this Part to be what would

have been the amount of a cash bid for a licence;

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                    “financial year” has the same meaning as in the Schedule to the Office of

Communications Act 2002 (c. 11);

                    “numbering conditions” means conditions the setting of which is

authorised by section 55 or 56; and

                    “relevant revenue” means any of the following—

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                  (a)                 the amount which for the purposes of section 19, 52(1), 102(1) or

118 (1) of the 1990 Act is the amount of qualifying revenue for

an accounting period;

                  (b)                 the amount which for the purposes of section 13(1) or 55(1) of

the 1996 Act is the amount of multiplex revenue for an

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accounting period; or

                  (c)                 an amount which for the purposes of paragraph 7 of Schedule

10 to this Act is the amount of qualifying revenue for an

accounting period.

 394   Power of OFCOM to retain costs of carrying out spectrum functions

45

     (1)    OFCOM have power to make a statement of the principles under which they

may retain any or all of the amounts paid to them in pursuance of obligations

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

 

 

Communications Bill
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     (2)    Where such a statement of principles authorises the retention of an amount,

OFCOM are not required to pay it into the appropriate Consolidated Fund in

accordance with section 393.

     (3)    Principles contained in a statement made by OFCOM under this section must

be such as appear to them to be likely to secure, on the basis of such estimates

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of the likely costs as it is practicable to make—

           (a)           that, on a year by year basis, the aggregate amount of the amounts

retained by OFCOM does not exceed the amount required by OFCOM

for meeting the annual cost to OFCOM of carrying out the functions

mentioned in subsection (4);

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           (b)           that the amounts retained by OFCOM are objectively justifiable and

proportionate to the costs in respect of which they are retained; and

           (c)           that the relationship between meeting the cost of carrying out those

functions and the amounts retained is transparent.

     (4)    Those functions are—

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           (a)           OFCOM’s functions under the enactments relating to the management

of the radio spectrum except those specified in subsection (5); and

           (b)           the function of taking any steps that OFCOM consider it necessary to

take—

                  (i)                 in preparation for the carrying out of any of the functions

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mentioned in paragraph (a) of this subsection; or

                  (ii)                for the purpose of facilitating the carrying out of those functions

or otherwise in connection with carrying them out.

     (5)    The excepted functions of OFCOM are—

           (a)           their functions under section 19(2);

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           (b)           their functions under subsections (1) and (2) of section 149 so far as

carried out in relation to the use of the electro-magnetic spectrum at

places outside the United Kingdom, and their functions under

subsection (5) of that section;

           (c)           their functions under section 152;

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           (d)           their functions under section 155;

           (e)           their functions under section 165;

           (f)           their functions under sections 172 to 174;

           (g)           any functions conferred on them under section 5 of the Wireless

Telegraphy Act 1949 (c. 54); and

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           (h)           any function not falling within the preceding paragraphs in so far as the

costs of carrying it out are met from payments made to OFCOM by

virtue of section 25 or 149(8) of this Act.

     (6)    A statement under this section may include provision which, for the purposes

of the principles contained in the statement and of the preparation of accounts

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in accordance with section 393(4), requires an amount actually received in one

year—

           (a)           to be treated as referable to costs incurred in that year and in one or

more subsequent years; and

           (b)           to be brought into account, in each of those years, in accordance with

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an apportionment for which provision is made in the statement.

     (7)    A deficit or surplus shown (after applying this subsection for all previous

years) by an account prepared under section 393(4) is to be carried forward and

taken into account in determining what is required by OFCOM in relation to

 

 

Communications Bill
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the following year for meeting the costs of carrying out the functions

mentioned in subsection (4) of this section.

     (8)    A statement of principles under this section—

           (a)           if it is expressed to apply for a limited period, does not apply to any

amounts paid to OFCOM after the end of that period; and

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           (b)           in any event, does not apply to amounts paid to them after a

withdrawal of the statement takes effect.

     (9)    OFCOM may revise a statement made under this section.

     (10)   The consent of the Treasury is required for the making, revision or withdrawal

of a statement under this section.

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     (11)   Where OFCOM make or revise a statement of this section they must publish so

much of the statement or revised statement as appears to them necessary for

demonstrating that the statement or revision complies with subsection (3).

 395   Power of Secretary of State to make orders and regulations

     (1)    Every power conferred by this Act on the Secretary of State to make orders or

15

regulations, other than the powers conferred by Schedule 4, is a power

exercisable by statutory instrument.

     (2)    A statutory instrument containing an order or regulations made in exercise of

any such power, other than—

           (a)           an order under section 28 or 403,

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           (b)           an order containing a direction under section 153, or

           (c)           any order that is required, by any provision of this Act, to be laid before

Parliament and approved in draft,

            shall be subject to annulment in pursuance of a resolution of either House of

Parliament.

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     (3)    Every power of the Secretary of State to make an order or regulations under

this Act, other than an order under section 28 or 403 or an order made in

exercise of a power conferred by Schedule 4, includes power—

           (a)           to make different provision for different cases (including different

provision in respect of different areas);

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           (b)           to make provision subject to such exemptions and exceptions as the

Secretary of State thinks fit; and

           (c)           to make such incidental, supplemental, consequential and transitional

provision as the Secretary of State thinks fit.

 396   Regulations and orders made by OFCOM

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     (1)    This section applies to any power of OFCOM to make regulations or to make

an order or scheme if that power is one to which this section is expressly

applied.

     (2)    The powers to which this section applies shall be exercisable by statutory

instrument, and the Statutory Instruments Act 1946 (c. 36) is to apply in

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relation to those powers as if OFCOM were a Minister of the Crown.

     (3)    Where an instrument made under a power to which this section applies falls to

be laid before Parliament, OFCOM must, immediately after it is made, send it

to the Secretary of State for laying by him.

 

 

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Part 6 — Miscellaneous and Supplemental

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     (4)    Before making any regulations or order under a power to which this section

applies, OFCOM must—

           (a)           give a notice of their proposal to do so to such persons representative

of the persons appearing to OFCOM to be likely to be affected by the

implementation of the proposal as OFCOM think fit;

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           (b)           publish notice of their proposal 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 and are not given notice by virtue

of paragraph (a); and

           (c)           consider any representations that are made to OFCOM, before the time

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specified in the notice.

     (5)    A notice for the purposes of subsection (4) must—

           (a)           state that OFCOM propose to make the regulations or order in

question;

           (b)           set out the general effect of the regulations or order;

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           (c)           specify an address from which a copy of the proposed regulations or

order may be obtained; and

           (d)           specify a time before which any representations with respect to the

proposal must be made to OFCOM.

     (6)    The time specified for the purposes of subsection (5)(d) must be a time before

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the end of the period of one month beginning with the day after the latest day

on which the notice is given or published for the purposes of subsection (4).

     (7)    Every power of OFCOM to which this section applies includes power—

           (a)           to make different provision for different cases (including different

provision in respect of different areas);

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           (b)           to make provision subject to such exemptions and exceptions as

OFCOM think fit; and

           (c)           to make such incidental, supplemental, consequential and transitional

provision as OFCOM think fit.

     (8)    The Documentary Evidence Act 1868 (c. 37) (proof of orders and regulations

30

etc.) shall have effect as if—

           (a)           OFCOM were included in the first column of the Schedule to that Act;

           (b)           OFCOM and persons authorised to act on their behalf were mentioned

in the second column of that Schedule.

 397   Criminal liability of company directors etc.

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     (1)    Where an offence under any enactment to which this section applies is

committed by a body corporate and is proved to have been committed with the

consent or connivance of, or to be attributable to any neglect on the part of—

           (a)           a director, manager, secretary or other similar officer of the body

corporate, or

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           (b)           a person who was purporting to act in any such capacity,

            he (as well as the body corporate) is guilty of that offence and shall be liable to

be proceeded against and punished accordingly.

     (2)    Where an offence under any enactment to which this section applies—

           (a)           is committed by a Scottish firm, and

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           (b)           is proved to have been committed with the consent or connivance of, or

to be attributable to any neglect on the part of a partner of the firm,

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

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            he (as well as the firm) is guilty of that offence and shall be liable to be

proceeded against and punished accordingly.

     (3)    In this section “director”, in relation to a body corporate whose affairs are

managed by its members, means a member of the body corporate.

     (4)    The enactments to which this section applies are every enactment contained

5

in—

           (a)           this Act;

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

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

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

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           (e)           the Telecommunications Act 1984 (c. 12).

     (5)    Section 14(2) of the Wireless Telegraphy Act 1949 (c. 54) (which is superseded

by this section) shall cease to have effect.

 398   General interpretation

     (1)    In this Act, except in so far as the context otherwise requires—

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                    “the 1990 Act” means the Broadcasting Act 1990 (c. 42);

                    “the 1996 Act” means the Broadcasting Act 1996 (c. 55);

                    “access” is to be construed in accordance with subsection (4);

                    “apparatus” includes any equipment, machinery or device and any wire

or cable and the casing or coating for any wire or cable;

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                    “associated facility” has the meaning given by section 29;

                    “the BBC” means the British Broadcasting Corporation;

                    “body” (without more) means any body or association of persons,

whether corporate or unincorporate, including a firm;

                    “broadcast” means broadcast by wireless telegraphy, and cognate

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expressions are to be construed accordingly;

                    “Broadcasting Act licence” means a licence under Part 1 or 3 of the 1990

Act or under Part 1 or 2 of the 1996 Act;

                    “business” includes any trade or profession;

                    “C4C” means the Channel Four Television Corporation;

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                    “communications provider” means a person who (within the meaning of

section 29(4)) provides an electronic communications network or an

electronic communications service;

                    “the Consumer Panel” means the panel established under section 15;

                    “consumers” has the meaning given by subsection (5);

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                    “Content Board” means the committee of OFCOM established and

maintained under section 11;

                    “contravention” includes a failure to comply, and cognate expressions are

to be construed accordingly;

                    “customers”, in relation to a communications provider or a person who

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makes an associated facility available, means the following (including

any of them whose use or potential use of the network, service or

facility is for the purposes of, or in connection with, a business)—

                  (a)                 the persons to whom the network, service or facility is provided

or made available in the course of any business carried on as

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such by the provider or person who makes it available;

 

 

Communications Bill
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                  (b)                 the persons to whom the communications provider or person

making the facility available is seeking to secure that the

network, service or facility is so provided or made available;

                  (c)                 the persons who wish to be so provided with the network or

service, or to have the facility so made available, or who are

5

likely to seek to become persons to whom the network, service

or facility is so provided or made available;

                    “distribute”, in relation to a service, does not include broadcast, and

cognate expressions shall be construed accordingly;

                    “electronic communications network” and “electronic communications

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service” have the meanings given by section 29;

                    “enactment” includes any enactment comprised in an Act of the Scottish

Parliament or in any Northern Ireland legislation;

                    “the enactments relating to the management of the radio spectrum”

means—

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                  (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) (except Part 1);

                  (d)                 Part 6 of the Telecommunications Act 1984 (c. 12);

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

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                  (f)                 Chapter 2 of Part 2 of this Act; and

                  (g)                 the other provisions of this Act so far as relating to any of the

enactments mentioned in the preceding paragraphs;

                    “frequency” includes frequency band;

                    “holder”, in relation to a Broadcasting Act licence, is to be construed in

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accordance with subsection (7), and cognate expressions are to be

construed accordingly;

                    “information” includes accounts, estimates and projections and any

document;

                    “intelligible” is to be construed in accordance with subsection (9);

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                    “international obligation of the United Kingdom” includes any

Community obligation and any obligation which will or may arise

under any international agreement or arrangements to which the

United Kingdom is a party;

                    “modification” includes omissions, alterations and additions, and cognate

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expressions are to be construed accordingly;

                    “OFCOM” means the Office of Communications;

                    “other member State” means a member State other than the United

Kingdom;

                    “pre-commencement regulator” means any of the following—

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                  (a)                 the Broadcasting Standards Commission;

                  (b)                 the Director General of Telecommunications;

                  (c)                 the Independent Television Commission;

                  (d)                 the Radio Authority;

                    “programme” includes an advertisement and, in relation to a service,

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anything included in that service;

                    “programme service” means—

                  (a)                 a television programme service;

                  (b)                 the public teletext service;

                  (c)                 an additional television service;

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                  (d)                 a digital additional television service;

                  (e)                 a radio programme service; or

                  (f)                 a sound service provided by the BBC;

                         and expressions used in this definition and in Part 3 have the same

meanings in this definition as in that Part;

5

                    “provide” and cognate expressions, in relation to an electronic

communications network, electronic communications service or

associated facilities, are to be construed in accordance with section

29(4);

                    “the radio transfer date” means the date on which the Radio Authority’s

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functions under Part 3 of the 1990 Act and Part 2 of the 1996 Act are

transferred under this Act to OFCOM;

                    “representation”, in relation to a proposal or the contents of any notice or

notification, includes an objection to the proposal or (as the case may

be) to the whole or any part of those contents;

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                    “subordinate legislation” means—

                  (a)                 any subordinate legislation, within the meaning of the

Interpretation Act 1978 (c. 30); or

                  (b)                 any statutory rules (within the meaning of the Statutory Rules

(Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12));

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                    “television and radio services” means—

                  (a)                 programme services apart from those provided by the BBC; and

                  (b)                 services provided by the BBC in relation to which OFCOM have

functions;

                    “television programme” means any programme (with or without sounds)

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which—

                  (a)                 is produced wholly or partly to be seen on television; and

                  (b)                 consists of moving or still images or of legible text or of a

combination of those things;

                    “the television transfer date” means the date on which the Independent

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Television Commission’s functions under Part 1 of the 1990 Act and

Part 1 of the 1996 Act are transferred under this Act to OFCOM;

                    “TV licence” means a licence for the purposes of section 356;

                    “the Welsh Authority” means the authority whose name is, by virtue of

section 56(1) of the 1990 Act, Sianel Pedwar Cymru;

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                    “wireless telegraphy” has the same meaning as in the Wireless Telegraphy

Act 1949 (c. 54);

                    “wireless telegraphy licence” means a licence under section 1 of the

Wireless Telegraphy Act 1949.

     (2)    Any power under this Act to provide for the manner in which anything is to be

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done includes power to provide for the form in which it is to be done.

     (3)    References in this Act to OFCOM’s functions under an enactment include

references to their power to do anything which appears to them to be

incidental or conducive to the carrying out of their functions under that

enactment.

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     (4)    References in this Act to access—

           (a)           in relation to an electronic communications network or electronic

communications service, are references to the opportunity of making

use of the network or service; and

 

 

 
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