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Communications Bill


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

    164

 

           (b)           send a copy of the statement and of every such revision to the Secretary

of State;

            and the Secretary of State must lay copies of the statement and of every such

revision before each House of Parliament.

     (10)   Section 13A of the Wireless Telegraphy Act 1949 (c. 54) is to apply for the

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purpose of ascertaining the amount of a person’s gross revenue for any period

for the purposes of section 174 of this Act and this section as it applies for the

purpose of obtaining information for statistical purposes about matters

relating to the establishment, installation or use by that person of a station or

apparatus.

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     (11)   In this section—

                    “accounting period”, in relation to a person, means a period in respect of

which accounts of the undertaking carried on by him are prepared or,

if one such period is comprised in another, whichever of those periods

is or is closest to a twelve month period; and

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                    “gross revenue”, in relation to a person, means the gross revenue of an

undertaking carried on by that person.

 176   Proceedings for an offence relating to apparatus use

     (1)    Section 11 of the Wireless Telegraphy Act 1949 (notices enforcing regulations

on the use of apparatus) shall have effect with the following amendments in

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relation to any notice under subsection (1) or (2) of that section that is served

after the coming into force of this subsection—

           (a)           paragraph (i) of the proviso to subsection (1) shall be omitted; and

           (b)           for subsections (3) to (6) there shall be substituted—

                  “(2A)                    Where an appeal with respect to a notice under this section is

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pending—

                        (a)                        proceedings for an offence of contravening that notice

(whether instituted before or after the bringing of the

appeal) shall be stayed until the appeal has been finally

determined; and

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                        (b)                        any such proceedings shall be discharged if the notice is

set aside in consequence of the appeal;

                                      but this subsection does not affect proceedings in which a

person has been convicted at a time when there was no pending

appeal.

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                  (2B)                    For the purposes of this section an appeal under section 190 of

the Communications Act 2003 with respect to a notice under

this section or a further appeal relating to the decision on such

an appeal is pending unless—

                        (a)                        that appeal has been brought to a conclusion or

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withdrawn and there is no further appeal pending in

relation to the decision on the appeal; or

                        (b)                        no further appeal against a decision made on the appeal

or on any such further appeal may be brought without

the permission of the court and—

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                               (i)                              in a case where there is no fixed period within

which that permission can be sought, that

 

 

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

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permission has been refused or has not been

sought; or

                               (ii)                             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

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expired without permission having been sought.

                  (2C)                    No proceedings for an offence of contravening a notice under

this section may be commenced in Scotland—

                        (a)                        until the time during which an appeal against such a

notice may be brought has expired; or

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                        (b)                        where such an appeal has been brought, until that

appeal has been determined.

                  (2D)                    Such proceedings in Scotland must be commenced within six

months of—

                        (a)                        where no appeal has been brought, the time referred to

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in paragraph (a) of subsection (2C); and

                        (b)                        where an appeal has been brought and determined, the

date of that determination.”

     (2)    Section 12 of that Act (enforcement of regulations as to sales of apparatus etc.)

shall have effect in relation to any notices served under subsection (1) of that

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section after the coming into force of this section with the substitution of the

following subsections for subsections (2) to (4)—

           “(1A)              Where an appeal with respect to a notice under subsection (1) of this

section is pending—

                  (a)                 proceedings for an offence of contravening that notice (whether

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instituted before or after the bringing of the appeal) shall be

stayed until the appeal has been finally determined; and

                  (b)                 any such proceedings shall be discharged if the notice is set

aside in consequence of the appeal;

                         but this subsection does not affect proceedings in which a person has

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been convicted at a time when there was no pending appeal.

           (1B)              For the purposes of this section any appeal under section 190 of the

Communications Act 2003 with respect to a notice under this section or

a further appeal relating to the decision on that appeal is pending

unless—

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                  (a)                 that appeal has been brought to a conclusion or withdrawn and

there is no further appeal pending in relation to the decision; or

                  (b)                 no further appeal against any decision made on the appeal or on

any such further appeal may be brought without the permission

of the court and—

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

that permission can be sought, that permission has been

refused or has not been sought; or

                        (ii)                       in a case where there is a fixed period within which that

permission can be sought, that permission has been

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refused or that period has expired without permission

having been sought.

           (1C)              No proceedings for an offence of contravening a notice under this

section may be commenced in Scotland—

 

 

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

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                  (a)                 until the time during which an appeal against such a notice may

be brought has expired; or

                  (b)                 where such an appeal has been brought, until that appeal has

been determined.

           (1D)              Such proceedings in Scotland must be commenced within six months

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of—

                  (a)                 where no appeal has been brought, the time referred to in

paragraph (a) of subsection (1C); and

                  (b)                 where an appeal has been brought and determined, the date of

that determination.”

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 177   Modification of penalties for certain wireless telegraphy offences

     (1)    In subsection (1) of section 14 of the Wireless Telegraphy Act 1949 (c. 54) (either

way offences), for paragraphs (aa) and (ab) there shall be substituted—

                  “(aa)                    any offence under section 1(1) of this Act consisting in the

establishment or use of a station for wireless telegraphy, or the

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installation or use of wireless telegraphy apparatus, for the

purpose of making a broadcast (within the meaning of section 9

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

                  (ab)                    any offence under section 1A of this Act where the relevant

contravention of section 1 would constitute an offence falling

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within paragraph (aa);”.

     (2)    After subsection (1A), there shall be inserted—

           “(1AA)              A person committing—

                  (a)                 an offence under section 1(1) of this Act other than—

                        (i)                        one which falls within subsection (1)(aa), or

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                        (ii)                       one which falls within subsection (1A)(a), or

                  (b)                 an offence under section 1A of this Act other than—

                        (i)                        one which falls within subsection (1)(ab), or

                        (ii)                       one which falls within subsection (1A)(aa),

                         shall be liable, on summary conviction, to imprisonment for a term not

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exceeding six months or to a fine not exceeding level 5 on the standard

scale, or to both.”

     (3)    In section 79(1) of the Telecommunications Act 1984 (c. 12) (offences in respect

of which apparatus may be seized), after paragraph (b) there shall be

inserted—

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                  “(bza)                    any offence under section 1A of that Act other than one where

the relevant contravention of section 1 of that Act would

constitute an offence so consisting;”.

     (4)    This section only applies in relation to offences committed after the

commencement of this section.

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 178   Fixed penalties for certain wireless telegraphy offences

Schedule 6 (which makes provision as respects fixed penalty notices for

summary offences under the Wireless Telegraphy Act 1949) shall have effect.

 

 

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

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 179   Power of arrest

     (1)    In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (offences

for which power of summary arrest available), after paragraph 2 there shall be

inserted—

“Wireless Telegraphy Act 1949

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        2A                An offence mentioned in section 14(1) of the Wireless Telegraphy Act

1949 (c. 54) (offences under that Act which are triable either way).”

     (2)    In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order

1989 (S.I. 1989/1341 (N.I. 12)) (offences for which power of summary arrest

available), after paragraph (i) there shall be inserted—

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                  “(j)                    an offence mentioned in section 14(1) of the Wireless

Telegraphy Act 1949 (offences under that Act which are triable

either way);”.

 180   Forfeiture etc. of restricted apparatus

     (1)    Apparatus to which this section applies shall be liable to forfeiture if,

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immediately before being seized, it was in a person’s custody or control in

contravention of a prohibition imposed by an order under section 7 of the

Wireless Telegraphy Act 1967 (c. 72) (restriction on dealings in and custody of

certain apparatus).

     (2)    This section applies to apparatus if it has been seized—

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           (a)           in pursuance of a warrant granted under section 15(1) of the Wireless

Telegraphy Act 1949; or

           (b)           in the exercise of the power conferred by section 79(3) of the

Telecommunications Act 1984 (c. 12).

     (3)    Apparatus forfeited under this section is to be forfeited to OFCOM and may be

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disposed of by them in any manner they think fit.

     (4)    Schedule 7 (which makes provision in relation to the seizure and forfeiture of

apparatus) shall have effect.

     (5)    The preceding provisions of this section and Schedule 7 apply only in relation

to apparatus seized after the commencement of this section.

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     (6)    Sections 80 and 81 of the Telecommunications Act 1984 (which make provision

for forfeiture of apparatus) are not to apply in relation to apparatus seized after

the commencement of this section.

     (7)    In section 7(5) of the Wireless Telegraphy Act 1967, paragraph (b) (which

allows a person to have custody or control of restricted apparatus when

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authorised otherwise than by the Secretary of State) shall cease to have effect.

Construction of 1949 Act

 181   Modification of definition of “undue interference”

For subsection (5) of section 19 of the Wireless Telegraphy Act 1949 (meaning

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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of undue interference) there shall be substituted—

           “(5)              Interference with any wireless telegraphy is not to be regarded as

undue for the purposes of this Act unless it is also harmful.

           (5A)               For the purposes of this Act interference is harmful if—

                  (a)                 it creates dangers, or risks of danger, in relation to the

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functioning of any service provided by means of wireless

telegraphy for the purposes of navigation or otherwise for

safety purposes; or

                  (b)                 it degrades, obstructs or repeatedly interrupts anything which

is being broadcast or otherwise transmitted—

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                        (i)                        by means of wireless telegraphy; and

                        (ii)                       in accordance with a licence under this Act, regulations

under the proviso to section 1(1) of this Act or a grant of

recognised spectrum access under Chapter 2 of Part 2 of

the Communications Act 2003 or otherwise lawfully.”

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 182   Modification of definition of “wireless telegraphy”

     (1)    The Secretary of State may by order modify the definition of “wireless

telegraphy” in section 19(1) of the Wireless Telegraphy Act 1949 (c. 54) by

substituting a different frequency for the frequency (at the passing of this Act,

3,000 GHz) that is for the time being specified in that definition.

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     (2)    No order is to be made containing provision authorised by this section unless

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

resolution of each House.

Chapter 3

Disputes and appeals

25

Disputes

 183   Reference of disputes to OFCOM

     (1)    This section applies in the case of a dispute relating to the provision of network

access if it is—

           (a)           a dispute between different communications providers;

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           (b)           a dispute between a communications provider and a person who

makes associated facilities available;

           (c)            a dispute between different persons making such facilities available;

           (d)           a dispute relating to the subject-matter of a condition set under section

72(1) between a communications provider or person who makes

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associated facilities available and a person who (without being such a

person) is a person to whom such a condition applies; or

           (e)           a dispute relating to the subject-matter of such a condition between

different persons each of whom (without being a communications

provider or a person who makes associated facilities available) is a

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person to whom such a condition applies.

     (2)    This section also applies in the case of any other dispute if—

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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           (a)           it relates to rights or obligations conferred or imposed by or under this

Part or any of the enactments relating to the management of the radio

spectrum that are not contained in this Part;

           (b)           it is a dispute between different communications providers; and

           (c)           it is not an excluded dispute.

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     (3)    Any one or more of the parties to the dispute may refer it to OFCOM.

     (4)    A reference made under this section is to be made in such manner as OFCOM

may require.

     (5)    The way in which a requirement under subsection (4)—

           (a)           is to be imposed, or

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           (b)           may be withdrawn or modified,

            is by a notice published in such manner as OFCOM consider appropriate for

bringing the requirement, withdrawal or modification to the attention of the

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

     (6)    Requirements imposed under subsection (4) may make different provision for

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different cases.

     (7)    A dispute is an excluded dispute for the purposes of subsection (2) if it is

about—

           (a)           obligations imposed on a communications provider by SMP apparatus

conditions;

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           (b)           contraventions of sections 123 to 125;

           (c)           obligations imposed on a communications provider by or under any of

sections 126 to 129; or

           (d)           the operation in the case of a communications provider of section 132.

     (8)    For the purposes of this section—

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           (a)           the disputes that relate to the provision of network access include

disputes as to the terms or conditions on which it is or may be provided

in a particular case; and

           (b)           the disputes that relate to an obligation include disputes as to the terms

or conditions on which any transaction is to be entered into for the

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purpose of complying with that obligation.

 184   Action by OFCOM on dispute reference

     (1)    This section applies where a dispute is referred to OFCOM under and in

accordance with section 183.

     (2)    OFCOM must decide whether or not it is appropriate for them to handle the

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dispute.

     (3)    Unless they consider—

           (a)           that there are alternative means available for resolving the dispute,

           (b)           that a resolution of the dispute by those means would be consistent

with the Community requirements set out in section 4, and

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           (c)           that a prompt and satisfactory resolution of the dispute is likely if those

alternative means are used for resolving it,

            their decision must be a decision that it is appropriate for them to handle the

dispute.

 

 

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Part 2 — Networks, services and the radio spectrum
Chapter 3 — Disputes and appeals

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     (4)    As soon as reasonably practicable after OFCOM have decided—

           (a)           that it is appropriate for them to handle the dispute, or

           (b)           that it is not,

            they must inform each of the parties to the dispute of their decision and of their

reasons for it.

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     (5)    The notification must state the date of the decision.

     (6)    Where—

           (a)           OFCOM decide that it is not appropriate for them to handle the

dispute, but

           (b)           the dispute is not resolved by other means before the end of the four

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months after the day of OFCOM’s decision,

            the dispute may be referred back to OFCOM by one or more of the parties to

the dispute.

 185   Legal proceedings about referred disputes

     (1)    Where a dispute is referred or referred back to OFCOM under this Chapter, the

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reference is not to prevent—

           (a)           the person making it,

           (b)           another party to the dispute,

           (c)           OFCOM, or

           (d)           any other person,

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            from bringing, or continuing, any legal proceedings with respect to any of the

matters under dispute.

     (2)    Nor is the reference or reference back to OFCOM under this Chapter of a

dispute to prevent OFCOM from—

           (a)           giving a notification in respect of something that they have reasonable

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ground for believing to be a contravention of any obligation imposed

by or under any an enactment;

           (b)           exercising any of their other powers under any enactment in relation to

a contravention of such an obligation; or

           (c)           taking any other step in preparation for or with a view to doing

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anything mentioned in the preceding paragraphs.

     (3)    If, in any legal proceedings with respect to a matter to which a dispute relates,

the court orders the handling of the dispute by OFCOM to be stayed or sisted—

           (a)           OFCOM is required to make a determination for resolving the dispute

only if the stay or sist is lifted or expires; and

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           (b)           the period during which the stay or sist is in force must be disregarded

in determining the period within which OFCOM are required to make

such a determination.

     (4)    Subsection (1) is subject to section 188(8) and to any agreement to the contrary

binding the parties to the dispute.

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

before a court.

 186   Procedure for resolving disputes

     (1)    This section applies where—

 

 

 
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