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Communications Bill


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

    143

 

 152   Duties of OFCOM when carrying out spectrum functions

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

enactments relating to the management of the radio spectrum, to have regard,

in particular, to—

           (a)           the extent to which the electro-magnetic spectrum is available for use,

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or further use, for wireless telegraphy;

           (b)           the demand for use of that spectrum for wireless telegraphy; and

           (c)           the demand that is likely to arise in future for the use of that spectrum

for wireless telegraphy.

     (2)    It shall also be their duty, in carrying out their functions under those

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enactments to have regard, in particular, to the desirability of promoting—

           (a)           the efficient management and use of the part of the electro-magnetic

spectrum available for wireless telegraphy;

           (b)           the economic and other benefits that may arise from the use of wireless

telegraphy;

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           (c)           the development of innovative services; and

           (d)           competition in the provision of electronic communications services.

     (3)    In the application of this section to the functions of OFCOM under the

enactments relating to the management of the radio spectrum other than

section 2 of the Wireless Telegraphy Act 1998 (c. 6) (exercise of power to

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prescribe wireless telegraphy licence fees), OFCOM may disregard such of the

matters mentioned in the preceding subsections as appear to them—

           (a)           to be matters to which they are not required to have regard apart from

this section; and

           (b)           to have no application to the case in question.

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     (4)    Where it appears to OFCOM that any of their duties under this section conflict

with one or more of their duties under sections 3 to 6, priority must be given to

their duties under those sections.

     (5)    Where it appears to OFCOM that any of their duties under this section conflict

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

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resolved in the manner they think best in the circumstances.

 153   Advisory service in relation to interference

     (1)    It shall be a function of OFCOM to provide a service consisting in the giving of

advice and assistance to persons complaining of interference with wireless

telegraphy.

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     (2)    In this section “interference”, in relation to wireless telegraphy, has the same

meaning as in the Wireless Telegraphy Act 1949 (c. 54).

 154   Directions with respect to the radio spectrum

     (1)    The Secretary of State may by order give general or specific directions to

OFCOM about the carrying out by OFCOM of their functions under the

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enactments relating to the management of the radio spectrum.

     (2)    The directions that may be given under this section include a direction

requiring OFCOM to secure that such frequencies of the electro-magnetic

spectrum as may be specified in the direction are kept available or become

available—

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

    144

 

           (a)           for such uses or descriptions of uses, or

           (b)           for such users or descriptions of users,

            as may be so specified.

     (3)    The directions that may be given under this section include a direction

requiring OFCOM to exercise their powers under the provisions mentioned in

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subsection (4)—

           (a)           in such cases,

           (b)           in such manner,

           (c)           subject to such restrictions and constraints, and

           (d)           with a view to achieving such purposes,

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            as may be specified in the direction or as may be determined by the Secretary

of State in accordance with the order.

     (4)    Those provisions are—

           (a)           the proviso to section 1 of the Wireless Telegraphy Act 1949 (c. 54)

(exemptions from requirement of wireless telegraphy licence); and

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           (b)           sections 1 to 3A of the Wireless Telegraphy Act 1998 (c. 6) (payments in

respect of wireless telegraphy licences and grants of recognised

spectrum access).

     (5)    This section is not to be construed as restricting the power of the Secretary of

State under section 5, without the making of an order, to give a direction for

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any of the purposes for the time being specified in subsection (3) of that section.

 155   Procedure for directions under s. 154

     (1)    An order containing a direction under section 154, if it is not one falling within

subsection (2) or (3) of that section, must state the purpose for which the

direction is given.

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     (2)    Before making an order containing a direction under section 154, the Secretary

of State must consult both—

           (a)           OFCOM; and

           (b)           such other persons as he thinks fit.

     (3)    Subsection (2) does not apply where the Secretary of State considers that the

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urgency of the case makes it inexpedient to carry out the consultation before

making the order.

     (4)    Subject to subsection (5), no order is to be made containing provision

authorised by section 154 unless a draft of the order has been laid before

Parliament and approved by a resolution of each House.

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     (5)    Subsection (4) does not apply where the Secretary of State considers either—

           (a)           before or in the course of the consultation required by subsection (2); or

           (b)           after the consultation and before or after a draft of the order has been

laid before Parliament,

            that the urgency of the case is or has become such that he should make the

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order straight away.

     (6)    Where under subsection (5) the Secretary of State makes an order containing a

direction under section 154 without a draft of the order having been approved,

the order shall cease to have effect at the end of the period of forty days

 

 

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

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beginning with the day on which it was made unless, before the end of that

period, it has been approved by a resolution of each House of Parliament.

     (7)    For the purposes of subsection (6)—

           (a)           the order’s ceasing to have effect is without prejudice to anything

previously done, or to the making of a new order; and

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           (b)           in reckoning the period of forty days no account shall be taken of any

period during which Parliament is dissolved or prorogued or during

which both Houses are adjourned for more than four days.

Reservation of spectrum for multiplex use

 156   Special duty in relation to television multiplexes

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     (1)    This section applies where OFCOM, in exercise of their functions under the

enactments relating to the management of the radio spectrum, have reserved

frequencies for the broadcasting of television programmes.

     (2)    It shall be the duty of OFCOM, in the carrying out of their functions under

those enactments, to exercise their powers so as to secure, so far as practicable,

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that the requirement of subsection (3) is satisfied.

     (3)    That requirement is that sufficient capacity is made available on the reserved

frequencies for ensuring, in the case of every licensed television multiplex

service, that the qualifying services are broadcast by means of that multiplex

service.

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     (4)    In subsection (3) “licensed television multiplex service” means a television

multiplex service the provision of which is authorised by a licence under Part

1 of the 1996 Act.

     (5)    In this section “qualifying service” and “television multiplex service” each has

the same meaning as in Part 3 of this Act.

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Recognised spectrum access

 157   Grant of recognised spectrum access

     (1)    This section applies where—

           (a)           a person is proposing to use or to continue to use a station or apparatus

for wireless telegraphy;

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           (b)           the circumstances of the use are circumstances specified for the

purposes of this section in regulations made by OFCOM;

           (c)           that use does not require a wireless telegraphy licence but will involve

the emission of electro-magnetic energy with a view to the reception of

anything at places in the United Kingdom or in the territorial waters

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adjacent to the United Kingdom;

            and for the purposes of this section it is immaterial whether the emissions are

from a place within the United Kingdom or from a place outside the United

Kingdom.

     (2)    On an application by that person, OFCOM may make a grant of recognised

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spectrum access in respect of any use by him of anything for wireless

telegraphy that is specified in the grant.

 

 

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

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     (3)    A grant of recognised spectrum access made to a person shall set out, by

reference to such factors as OFCOM think fit (including, so far as they think fit,

frequencies, times and places of reception and strength and type of signal), the

respects in which the use of anything by that person for wireless telegraphy is

recognised by the grant.

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     (4)    A grant of recognised spectrum access to a person is made by giving him a

notification containing the grant.

     (5)    A grant of recognised spectrum access may be made subject to such restrictions

and conditions as OFCOM think fit, including, in particular—

           (a)           restrictions or conditions as to strength or type of signal, as to times of

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use and as to the sharing of frequencies;

           (b)           restrictions of, or conditions imposing prohibitions on, the

transmission or broadcasting of particular matters by the holder of the

grant; and

           (c)           conditions requiring the transmission or broadcasting of particular

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matters by that person.

     (6)    The restrictions and conditions of a grant of recognised spectrum access made

to a person must not duplicate obligations already imposed on him by general

conditions set under section 43.

     (7)    Where a grant of recognised spectrum access is made subject to restrictions and

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conditions, the restrictions and conditions must be set out in the notification by

which the grant is made.

     (8)    Schedule 5 (which makes provision about the grant, revocation and

modification of recognised spectrum access) shall have effect.

     (9)    Section 400 applies to the power of OFCOM to make regulations under

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subsection (1).

     (10)   Expressions used in this section and in the Wireless Telegraphy Act 1949 (c. 54)

have the same meanings in this section as in that Act.

 158   Effect of grant of recognised spectrum access

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

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           (a)           their functions under section 1 of the Wireless Telegraphy Act 1949

(licensing of the use of the radio spectrum) with respect to the granting

of wireless telegraphy licences;

           (b)           their functions under section 157 of this Act with respect to the making

of grants of recognised spectrum access; and

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           (c)           any of their other functions under the enactments relating to the

management of the radio spectrum in the carrying out of which it is

appropriate for them to have regard to—

                  (i)                 whether wireless telegraphy licences are in force; or

                  (ii)                the terms, provisions or limitations of wireless telegraphy

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licences that are for the time being in force.

     (2)    In carrying out the functions to which this section applies it shall be the duty

of OFCOM to take into account—

           (a)           the existence of any grant of recognised spectrum access that is for the

time being in force, and

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

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           (b)           the provisions imposing the restrictions and conditions subject to

which the grant has effect,

            to the same extent as they would take into account a wireless telegraphy licence

with terms, provisions or limitations making equivalent provision.

 159   Charges in respect of grants of recognised spectrum access

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     (1)    The Wireless Telegraphy Act 1998 (c. 6) (which makes provision about the

sums that may be charged in respect of the issue and renewal of wireless

telegraphy licences etc.) shall be amended as follows.

     (2)    In section 1 (charges for wireless telegraphy licences)—

           (a)           in subsection (1), after “this Act” there shall be inserted—

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                        “(a)                           references to a grant of recognised spectrum access are

references to a grant made under section 157 of the

Communications Act 2003 (recognised spectrum

access); and

                        (b)”;

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           (b)           in subsection (2), for the words from “or renewal”, where they first

occur, to “is issued” there shall be substituted “of a wireless telegraphy

licence or the making of a grant of recognised spectrum access and,

where regulations under this section so provide, subsequently at such

times during the term of the licence or grant and such times in respect

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of its variation, modification or revocation, as may be prescribed by the

regulations, there shall be paid to OFCOM by the person to whom the

licence is issued or the grant made”; and

           (c)           in subsection (4), for the words from “or renewal”, where they first

occur, to “the licence” there shall be substituted “of a licence or the

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making of a grant of recognised spectrum access, OFCOM may, on the

issue of the licence or the making of the grant,”.

     (3)    After section 3 of that Act there shall be inserted the following section—

       “3A            Bidding for grants of recognised spectrum access

           (1)           Having regard to the desirability of promoting the optimal use of the

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electro-magnetic spectrum, OFCOM may by regulations provide that,

in such cases as may be specified in the regulations, applications for

grants of recognised spectrum access must be made in accordance with

a procedure which involves the making by the applicant of a bid

specifying an amount which he is willing to pay to OFCOM in respect

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of the grant.

           (2)           Regulations under this section may make provision with respect to the

grants to which they apply and the restrictions and conditions subject

to which such grants are made.

           (3)           The regulations may, in particular—

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                  (a)                 require the applicant’s bid to specify the amount which he is

willing to pay;

                  (b)                 require that amount to be expressed—

                        (i)                        as a cash sum;

                        (ii)                       as a sum determined by reference to a variable (such as

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income attributable wholly or in part to the use of

wireless telegraphy to which the grant relates);

 

 

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

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                        (iii)                      as a combination of the two; or

                        (iv)                       (at the applicant’s choice) in any one of the ways falling

within the preceding sub-paragraphs that is authorised

by the regulations;

                  (c)                 require that amount to be expressed in terms of—

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                        (i)                        the making of a single payment;

                        (ii)                       the making of periodic payments;

                        (iii)                      a combination of the two; or

                        (iv)                       (at the applicant’s choice) in any one of the ways falling

within the preceding sub-paragraphs that is authorised

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by the regulations;

                  (d)                 specify requirements (such as, for example, technical or

financial requirements, requirements relating to the use of

wireless telegraphy to which the grant relates and requirements

intended to restrict the holding of two or more grants of

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recognised spectrum access by any one person) which must be

met by applicants for a grant;

                  (e)                 require any such applicant to pay a deposit to OFCOM;

                  (f)                 specify circumstances in which such a deposit is, or is not, to be

refundable;

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                  (g)                 specify matters to be taken into account by OFCOM (in addition

to the bids made in accordance with the prescribed procedure)

in deciding whether, or to whom, to make a grant of recognised

spectrum access;

                  (h)                 specify the other restrictions and conditions subject to which a

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grant to which the regulations apply is to be made; and

                  (i)                 make any provision referred to in section 1(3).

           (4)           Regulations under this section are not to be construed as binding

OFCOM to make a grant on the completion of the procedure provided

for in the regulations except in such circumstances as may be provided

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for in the regulations.

           (5)           A grant of recognised spectrum access made in accordance with

regulations under this section shall specify either—

                  (a)                 the sum or sums which in consequence of the bids made are, in

accordance with the regulations, to be payable in respect of the

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grant; or

                  (b)                 the method for determining that sum or those sums;

                         and that sum or those sums shall be paid to OFCOM by the person to

whom the grant is made in accordance with the conditions of the grant.

           (6)           In determining the sum or sums payable in respect of a grant, regard

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may be had to bids made for other grants of recognised spectrum access

and for wireless telegraphy licences.

           (7)                         Regulations under this section may provide that where a person—

                  (a)                 makes an application for a grant of recognised spectrum access

in accordance with a procedure provided for by such

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regulations, but

                  (b)                 subsequently refuses the grant applied for,

 

 

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

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                         that person shall make such payments to OFCOM as may be

determined in accordance with the regulations by reference to bids

made for the grant.

           (8)           Subsection (4) of section 1 is to apply in relation to sums that will or

may become payable under regulations under this section

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subsequently to the making of a grant of recognised spectrum access as

it applies to sums that will or may become payable under regulations

under that section.”

 160   Conversion into and from wireless telegraphy licences

     (1)    OFCOM may by regulations make provision for—

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           (a)           the conversion, on the application of the licence holder, of a wireless

telegraphy licence into a grant of recognised spectrum access; and

           (b)           the conversion, on the application of the holder of the grant, of a grant

of recognised spectrum access into a wireless telegraphy licence.

     (2)    Section 400 applies to the power of OFCOM to make regulations under this

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section.

Crown use of the radio spectrum

 161   Payments for use of radio spectrum by the Crown

     (1)    The Secretary of State may, out of money provided by Parliament, make

payments to OFCOM of such amounts as he considers appropriate in respect

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of—

           (a)           the establishment and use by or on behalf of the Crown, of a station for

wireless telegraphy;

           (b)           the installation and use by or on behalf of the Crown, of apparatus for

wireless telegraphy;

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           (c)           any grant of recognised spectrum access made to the Crown.

     (2)    The payments made under this section shall be made at such times and, so far

as made in relation to use, in relation to such periods as the Secretary of State

considers appropriate.

     (3)    Expressions used in this section and in the Wireless Telegraphy Act 1949 (c. 54)

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have the same meanings in this section as in that Act.

Limitations and exemptions applied to spectrum use

 162   Limitations on authorised spectrum use

     (1)    If they consider it appropriate, for the purpose of securing the efficient use of

the electro-magnetic spectrum, to impose limitations on the use of particular

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frequencies, OFCOM must make an order imposing the limitations.

     (2)    An order under this section may do one or both of the following—

           (a)           specify frequencies for the use of which OFCOM will grant or make

only a limited number of wireless telegraphy licences and grants of

recognised spectrum access; or

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