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Communications Bill


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

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Information requirements

 169   Information requirements in relation to wireless telegraphy licences

     (1)    In Part 3 of the Wireless Telegraphy Act 1949 (c. 54) (supplemental provisions),

before section 14 there shall be inserted—

       “13A            Information requirements

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           (1)           Subject to the following provisions of this section, OFCOM may require

a person who is using or has established, installed or used a station or

apparatus for wireless telegraphy to provide OFCOM with all such

information relating to—

                  (a)                 the establishment, installation or use of the station or apparatus,

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and

                  (b)                 any related matters,

                         as OFCOM may require for statistical purposes.

           (2)           OFCOM are not to require the provision of information under this

section except—

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                  (a)                 by a demand for the information that sets out OFCOM’s reasons

for requiring the information and the statistical purposes for

which it is required; and

                  (b)                 where the making of a demand for that information is

proportionate to the use to which the information is to be put in

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the carrying out of OFCOM’s functions.

           (3)           A demand for information required under this section must be

contained in the notice served on the person from whom the

information is required.

           (4)           A person required to provide information under this section must

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provide it in such manner and within such reasonable period as may be

specified by OFCOM.

           (5)           A person who fails to provide information in accordance with a

requirement of OFCOM under this section is guilty of an offence.

           (6)           In proceedings against a person for an offence under subsection (1) it

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shall be a defence for that person to show—

                  (a)                 that it was not reasonably practicable for him to comply with

the requirement within the period specified by OFCOM; but

                  (b)                 that he has taken all reasonable steps to provide the required

information after the end of that period.

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           (7)           A person is guilty of an offence if—

                  (a)                 in pursuance of any requirement under this section, he provides

information that is false in any material particular; and

                  (b)                 at the time he provides it, he either knows it to be false or is

reckless as to whether or not it is false.

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       13B            Statement of policy on information gathering

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

their general policy with respect to—

                  (a)                 the exercise of their powers under section 13A; and

 

 

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Chapter 2 — Spectrum use

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                  (b)                 the uses to which they are proposing to put information

obtained under that section.

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

           (3)           Where OFCOM make or revise their statement of policy under this

section, they must publish that statement or (as the case may be) the

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revised statement 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.

           (4)           It shall be the duty of OFCOM, in exercising the powers conferred on

them by section 13A, to have regard to the statement for the time being

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in force under this section.”

     (2)    In section 14(1A) of that Act (summary offences carrying a maximum fine of

level 3 on the standard scale), before paragraph (f) there shall be inserted—

                  “(ea)                     any offence under section 13A(1) of this Act; or”.

Criminal proceedings etc.

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 170   Contraventions of conditions for use of wireless telegraphy

     (1)    Where OFCOM determine that there are reasonable grounds for believing that

a person is contravening, or has contravened—

           (a)           a term, provision or limitation of a wireless telegraphy licence, or

           (b)           a term, provision or limitation of an exemption under the proviso to

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section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) (exemptions

from licensing requirement),

            they may give that person a notification under this section.

     (2)    A notification under this section is one which—

           (a)           sets out the determination made by OFCOM;

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           (b)           specifies the term, provision or limitation, and the contravention, in

respect of which that determination has been made; and

           (c)           specifies the period during which the person notified has an

opportunity of doing the things specified in subsection (3).

     (3)    Those things are—

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           (a)           making representations about the matters notified; and

           (b)           complying with any notified term, provision or limitation of which he

remains in contravention.

     (4)    Subject to subsections (5) to (7), the period for doing those things must be the

period of one month beginning with the day after the one on which the

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notification was given.

     (5)    OFCOM may, if they think fit, allow a longer period for doing those things

either—

           (a)           by specifying a longer period in the notification; or

           (b)           by subsequently, on one or more occasions, extending the specified

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period.

     (6)    The person notified shall have a shorter period for doing those things if a

shorter period is agreed between OFCOM and the person notified.

 

 

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

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     (7)    The person notified shall also have a shorter period if—

           (a)           OFCOM have reasonable grounds for believing that the case is a case of

repeated contravention;

           (b)           they have determined that, in those circumstances, a shorter period

would be appropriate; and

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           (c)           the shorter period has been specified in the notification.

 171   Meaning of “repeated contravention” in s. 170

     (1)    For the purposes of section 170 a contravention is a repeated contravention, in

relation to a notification with respect to that contravention, if—

           (a)           in the case of a contravention of a term, provision or limitation of a

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licence, it falls within subsection (2) or (3); or

           (b)           in the case of a contravention of a term, provision or limitation of an

exemption, it falls within subsection (4) or (5).

     (2)    A contravention of a term, provision or limitation of a licence falls within this

subsection if—

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           (a)           a previous notification under section 170 has been given in respect of

the same contravention or in respect of another contravention of a term,

provision or limitation of the same licence;

           (b)           the person who was given that notification subsequently took steps for

remedying the notified contravention; and

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           (c)           the subsequent notification is given no more than twelve months after

the day of the giving of the previous notification.

     (3)    A contravention of a term, provision or limitation of a licence falls within this

subsection if—

           (a)           the person concerned has been convicted of an offence under section

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1(1) of the Wireless Telegraphy Act 1949 (c. 54) in respect of the

contravention to which the notification relates or in respect of another

contravention of a term, provision or limitation of the same licence; and

           (b)           the subsequent notification is given before the end of the period of

twelve months from the contravention in respect of which that person

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was convicted of that offence.

     (4)    A contravention of a term, provision or limitation of an exemption falls within

this subsection if—

           (a)           a previous notification under section 170 has been given in respect of

the same contravention or in respect of another contravention of the

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same term, provision or limitation;

           (b)           the person who was given that notification subsequently took steps for

remedying the notified contravention; and

           (c)           the subsequent notification is given no more than twelve months after

the day of the giving of the previous notification.

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     (5)    A contravention of a term, provision or limitation of an exemption falls within

this subsection if—

           (a)           the person concerned has been convicted of an offence under section

1(1) of the Wireless Telegraphy Act 1949 in respect of the contravention

to which the notification relates or in respect of another contravention

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of the same term, provision or limitation; and

 

 

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Chapter 2 — Spectrum use

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           (b)           the subsequent notification is given before the end of the period of

twelve months from the contravention in respect of which that person

was convicted of that offence.

     (6)    In calculating the periods of twelve months mentioned in subsections (3)(b)

and (5)(b), the period between the institution of the criminal proceedings

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which led to the conviction and the conclusion of those proceedings shall be

left out of account.

     (7)    For the purposes of subsection (6) criminal proceedings shall be taken to be

concluded when no further appeal against conviction may be brought without

the permission of the court and—

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

can be sought, permission has been refused or has not been sought; or

           (b)           in a case where there is a fixed period within which that permission can

be sought, that permission has been refused or that period has expired

without permission having been sought.

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     (8)    References in this section to remedying a contravention include references to

each of the following—

           (a)           doing any thing the failure to do which, or the failure to do which

within a particular period or before a particular time, constituted the

whole or a part of the contravention;

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           (b)           paying an amount to a person by way of compensation for loss or

damage suffered by that person in consequence of the contravention;

           (c)           paying an amount to a person by way of compensation in respect of

annoyance, inconvenience or anxiety to which he has been put in

consequence of the contravention; and

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           (d)           otherwise acting in a manner that constitutes an acknowledgement that

the notified contravention did occur.

     (9)    References in this section to a contravention of a term, provision or limitation

of a licence include a reference to a contravention of a term, provision or

limitation contained in a previous licence of which the licence in question is a

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direct or indirect renewal.

 172   Procedure for prosecutions of wireless telegraphy offences

     (1)    This section applies to proceedings against a person (“the defendant”) for an

offence under section 1 of the Wireless Telegraphy Act 1949 (c. 54) consisting

in the contravention of—

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           (a)           the terms, provisions or limitations of a wireless telegraphy licence; or

           (b)           the terms, provisions or limitations of an exemption under the proviso

to section 1(1) of the Wireless Telegraphy Act 1949 (exemptions from

licensing requirement).

     (2)    Proceedings to which this section applies are not to be brought at any time after

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the coming into force of this section unless, before they are brought, OFCOM

have—

           (a)           given the defendant a notification under section 170 in respect of the

contravention to which the proceedings relate; and

           (b)           considered any representations about the matters notified which were

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made by the defendant within the period allowed under that section.

 

 

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

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     (3)    Proceedings to which this section applies are not to be brought at any time after

the coming into force of this section in respect of a contravention if—

           (a)           it is a contravention to which a notification given to that person under

section 170 relates; and

           (b)           that person has, during the period allowed under that section,

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complied with the notified term, provision or limitation.

     (4)    Subsection (2) does not apply where OFCOM have certified that it would be

inappropriate to follow the procedure in section 170 because of an immediate

risk of—

           (a)           a serious threat to the safety of the public, to public health or to national

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security; or

           (b)           serious economic or operational problems for persons (other than the

defendant) who—

                  (i)                 use stations or apparatus for wireless telegraphy; or

                  (ii)                are communications providers or make associated facilities

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available.

     (5)    Where—

           (a)           proceedings to which this section applies are brought by virtue of

subsection (4) without a notification having been given to the

defendant, and

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           (b)           the defendant is convicted in those proceedings of the offence under

section 1 of the Wireless Telegraphy Act 1949 (c. 54),

            the court, in determining how to deal with that person, shall have regard, in

particular, to the matters specified in subsection (6).

     (6)    Those matters are—

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           (a)           whether the defendant has ceased to be in contravention of the terms,

provisions or limitations in question and (if so) when; and

           (b)           any steps taken by the defendant (whether before or after the

commencement of the proceedings) for securing compliance with the

obligations imposed on him by virtue of those terms, provisions or

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limitations.

     (7)    Notwithstanding anything in section 127 of the Magistrates’ Courts Act 1980

(c. 43) or Article 19 of the Magistrates’ Courts (Northern Ireland) Order 1981

(S.I. 1981/1675 (N.I. 26)) (limitation on time for bringing summary

proceedings) where—

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           (a)           OFCOM give a notification under section 170 in respect of a

contravention, and

           (b)           that notification is given before the end of six months after the day of

the contravention,

            the time for the bringing of proceedings for a summary offence in respect of

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that contravention shall be extended until the end of six months from the end

of the period allowed, in the case of that notification, for doing the things

mentioned in section 170(3) of this Act.

     (8)    In this section, “stations for wireless telegraphy” and “apparatus for wireless

telegraphy” have the same meaning as in the Wireless Telegraphy Act 1949.

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 173   Special procedure for contraventions by multiplex licence holders

     (1)    OFCOM may impose a penalty on a person if—

 

 

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

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           (a)           that person is or has been in contravention in any respect of the terms,

provisions or limitations of a general multiplex licence;

           (b)           the contravention relates to terms, provisions or limitations falling

within section 1(2A)(b) or (c) of the Wireless Telegraphy Act 1949 (c. 54)

(terms, provisions and limitations about service content);

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           (c)           OFCOM have notified that person that it appears to them that those

terms, provisions or limitations have been contravened in that respect;

and

           (d)           that contravention is not one in respect of which proceedings for an

offence under that Act have been brought against that person.

10

     (2)    Where OFCOM impose a penalty on a person under this section, they shall—

           (a)           notify that person of that decision and of their reasons for that decision;

and

           (b)           in that notification, fix a reasonable period after it is given as the period

within which the penalty is to be paid.

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     (3)    A penalty imposed under this section—

           (a)           must be paid to OFCOM; and

           (b)           if not paid within the period fixed by them, is to be recoverable by them

accordingly.

     (4)    No proceedings for an offence under the Wireless Telegraphy Act 1949 shall be

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commenced against a person in respect of a contravention in respect of which

a penalty has been imposed by OFCOM under this section.

     (5)    For the purposes of this section a licence is a general multiplex licence, in

relation to the time of a contravention, if—

           (a)           it is a wireless telegraphy licence containing terms, provisions or

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limitations by virtue of which the services for the purposes of which the

use of the licensed station or apparatus is authorised are confined to, or

are allowed to include, one or more multiplex services; and

           (b)           at that time, there is no licence under Part 1 or 2 of the 1996 Act in force

in respect of a multiplex service to be broadcast using that station or

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apparatus.

     (6)    In this section “multiplex service” means—

           (a)           a service for broadcasting for general reception that consists in the

packaging together of two or more services that are provided for

inclusion together in that service by a combination of the relevant

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information in digital form; or

           (b)           a service provided with a view to its being a service falling within

paragraph (a) but in the case of which only one service is for the time

being comprised in digital form in what is provided.

 174   Amount of penalty under s. 173

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     (1)    The amount of a penalty imposed under section 173 is to be such amount, not

exceeding the greater of the following, as OFCOM think fit, namely—

           (a)           £250,000; and

           (b)           5 per cent. of the relevant amount of gross revenue.

     (2)    In subsection (1) “the relevant amount of gross revenue” means the amount

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specified in section 175.

 

 

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     (3)    The Secretary of State may by order amend this section so as to substitute a

different amount for the amount for the time being specified in subsection

(1)(a).

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

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

5

resolution of each House.

 175   “Relevant amount of gross revenue” for the purposes of s. 174

     (1)    The relevant amount of gross revenue for the purposes of section 174, in

relation to a penalty imposed on a person, is—

           (a)           where the last accounting period of that person which falls before the

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contravention was a period of twelve months, the relevant part of his

gross revenue for that period; and

           (b)           in any other case, the amount which, by making any appropriate

apportionments or other adjustments of the relevant part of his gross

revenue for the accounting period or periods mentioned in subsection

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(2), is computed to be the amount representing the annual rate for the

relevant part of his gross revenues.

     (2)    The accounting period or periods referred to in subsection (1) are—

           (a)           every accounting period of his to end within the period of twelve

months immediately preceding the contravention; and

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           (b)           if there is no such accounting period, the accounting period of his

which is current at the time of the contravention.

     (3)    In this section, a reference to the relevant part of a person’s gross revenue, in

relation to a contravention of the terms, provisions or limitations of a licence,

is a reference to so much of his gross revenue as is attributable to the provision

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of the service to which that licence relates.

     (4)    For the purposes of this section—

           (a)           the gross revenue of a person for a period, and

           (b)           the extent to which a part of a person’s gross revenue is attributable to

the provision of any service,

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            shall be ascertained in accordance with such principles as may be set out in a

statement made by OFCOM.

     (5)    Such a statement may provide for the amount of a person’s gross revenue for

an accounting period that is current when the amount falls to be calculated to

be taken to be the amount estimated by OFCOM, in accordance with the

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principles set out in the statement, to be the amount that will be his gross

revenue for that period.

     (6)    OFCOM may revise a statement made under subsection (4) from time to time.

     (7)           A statement made or revised under this section may set out different principles

for different cases.

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     (8)           Before making or revising a statement under this section, OFCOM must

consult the Secretary of State and the Treasury.

     (9)           OFCOM must—

           (a)           publish the statement made under subsection (4) and every revision of

it; and

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