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Communications Bill


Communications Bill
Part 6 — Miscellaneous and Supplemental

    348

 

           (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

mentioned in paragraph (a) of this subsection; or

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

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or otherwise in connection with carrying them out.

     (5)    The excepted functions of OFCOM are—

           (a)           their functions under section 20(2);

           (b)           their functions under subsections (1) and (2) of section 150 so far as

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

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places outside the United Kingdom, and their functions under

subsection (5) of that section;

           (c)           their functions under section 153;

           (d)           their functions under section 156;

           (e)           their functions under section 166;

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           (f)           their functions under sections 173 to 175;

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

Telegraphy Act 1949 (c. 54); and

           (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

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virtue of section 26 or 150(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

in accordance with section 397(4), requires an amount actually received in one

year—

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           (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

an apportionment for which provision is made in the statement.

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

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years) by an account prepared under section 397(4) is to be carried forward and

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

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—

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           (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

           (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.

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

of a statement under this section.

     (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).

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 399   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

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

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any such power, other than—

           (a)           an order under section 29 or 407,

           (b)           an order containing a direction under section 154, or

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

Parliament and approved in draft,

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

Parliament.

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

this Act, other than an order under section 29 or 407 or an order made in

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

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

provision in respect of different areas);

           (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

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provision as the Secretary of State thinks fit.

 400   Regulations and orders made by OFCOM

     (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.

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     (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

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

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to the Secretary of State for laying by him.

     (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

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implementation of the proposal as OFCOM think fit;

           (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

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

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;

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

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

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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 no earlier than

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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

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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.

 401   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,

            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

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

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

in—

           (a)           this Act;

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

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

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

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

     (5)    Section 14(2) of the Wireless Telegraphy Act 1949 (which is superseded by this

section) shall cease to have effect.

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Communications Bill
Part 6 — Miscellaneous and Supplemental

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 402   General interpretation

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

                    “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);

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

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

                    “associated facility” has the meaning given by section 30;

                    “the BBC” means the British Broadcasting Corporation;

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

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whether corporate or unincorporate, including a firm;

                    “broadcast” means broadcast by wireless telegraphy, and cognate

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;

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                    “business” includes any trade or profession;

                    “C4C” means the Channel Four Television Corporation;

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

section 30(4)) provides an electronic communications network or an

electronic communications service;

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                    “the Consumer Panel” means the panel established under section 16;

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

                    “Content Board” means the committee of OFCOM established and

maintained under section 12;

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

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to be construed accordingly;

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

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)—

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

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

such by the provider or person who makes it available;

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

making the facility available is seeking to secure that the

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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

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

or facility is so provided or made available;

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

cognate expressions shall be construed accordingly;

                    “electronic communications network” and “electronic communications

service” have the meanings given by section 30;

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

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Parliament or in any Northern Ireland legislation;

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

means—

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

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

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Communications Bill
Part 6 — Miscellaneous and Supplemental

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                  (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);

                  (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

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enactments mentioned in the preceding paragraphs;

                    “frequency” includes frequency band;

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

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

construed accordingly;

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                    “information” includes accounts, estimates and projections and any

document;

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

                    “international obligation of the United Kingdom” includes any

Community obligation and any obligation which will or may arise

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under any international agreement or arrangements to which the

United Kingdom is a party;

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

expressions are to be construed accordingly;

                    “OFCOM” means the Office of Communications;

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

Kingdom;

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

                  (a)                 the Broadcasting Standards Commission;

                  (b)                 the Director General of Telecommunications;

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                  (c)                 the Independent Television Commission;

                  (d)                 the Radio Authority;

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

anything included in that service;

                    “programme service” means—

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                  (a)                 a television programme service;

                  (b)                 the public teletext service;

                  (c)                 an additional television service;

                  (d)                 a digital additional television service;

                  (e)                 a radio programme service; or

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                  (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;

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

communications network, electronic communications service or

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associated facilities, are to be construed in accordance with section

30(4);

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

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

transferred under this Act to OFCOM;

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                    “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;

                    “subordinate legislation” means—

 

 

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Part 6 — Miscellaneous and Supplemental

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                  (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));

                    “television and radio services” means—

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                  (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)

which—

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                  (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

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

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

                    “TV licence” means a licence for the purposes of section 360;

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

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

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

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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

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

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     (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.

     (4)    References in this Act to access—

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           (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

           (b)           in relation to a programme service, are references to the opportunity of

viewing in an intelligible form the programmes included in the service

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or (as the case may be) of listening to them in such a form.

     (5)    For the purposes of this Act persons are consumers in a market for a service,

facility or apparatus, if they are—

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

available or supplied (whether in their personal capacity or for the

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purposes of, or in connection with, their businesses);

           (b)           persons for whose benefit the service, facility or apparatus is provided,

made available or supplied or for whose benefit persons falling within

paragraph (a) arrange for it to be provided, made available or supplied;

           (c)           persons whom the person providing the service or making the facility

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available, or the supplier of the apparatus, is seeking to make into

persons falling within paragraph (a) or (b); or

 

 

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Part 6 — Miscellaneous and Supplemental

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           (d)           persons who wish to become persons falling within paragraph (a) or (b)

or who are likely to seek to become persons falling within one or both

of those paragraphs.

     (6)    References in this Act to services in relation to which OFCOM have functions

include references to any services in relation to which OFCOM are required to

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set standards under section 315.

     (7)    In this Act references, in relation to a time or a period, to the holder of a

Broadcasting Act licence or of a particular description of such licence are

references to the person who held that licence at that time or (as the case may

be) to every person who held that licence for the whole or a part of that period.

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     (8)    For the purposes of this Act the fact that a service is not in an intelligible form

shall be disregarded, except where express provision is made to the contrary,

in determining whether it has been provided—

           (a)           for general reception;

           (b)           for reception by particular persons; or

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           (c)           for reception at a particular place or in a particular area.

     (9)    For the purposes of this Act something is not to be regarded as in an intelligible

form if it cannot readily be understood without being decrypted or having

some comparable process applied to it.

 403   Minor and consequential amendments, transitionals and repeals

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     (1)    Schedule 17 (which provides for minor and consequential amendments in

connection with the other provision made by this Act) shall have effect.

     (2)    The Secretary of State may by order make such consequential modifications of

any enactment as—

           (a)           correspond to amendments of any other enactment that are made by

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Schedule 17; and

           (b)           appear to him to be appropriate in consequence of that provision of this

Act.

     (3)    The Secretary of State may by order make any provision that he thinks fit for

substituting a reference in any enactment or subordinate legislation to

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something defined for the purposes of this Act, or of any provisions contained

in this Act, for a reference to something equivalent or similar that was defined

for the purposes of the Telecommunications Act 1984 (c. 12), or of provisions

contained in that Act.

     (4)    The Secretary of State may by order make such further consequential

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modifications of—

           (a)                         an enactment extending only to Scotland,

           (b)                         an enactment extending only to Northern Ireland,

           (c)                         a local enactment, or

           (d)                         the provision of any subordinate legislation,

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            as appear to him to be appropriate in consequence of any provision of this Act.

     (5)    If it appears to the Secretary of State that a local enactment contains a provision

which corresponds to a provision the effect of which is modified by an

amendment in Schedule 17 of this Act of a listed provision, it shall be his duty

to exercise his powers under this section to secure that a modification

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