Select Committee on Delegated Powers and Regulatory Reform Fourteenth Report


Transitional provision for anticipatory carrying out of functions

146.  Clause 401(1) provides that a commencement order under Clause 403 may state that a provision is brought into force for the purpose only of enabling specified functions of OFCOM under Part 2 and Chapter 1 of Part 5 and related provisions of the Bill and the enactments relating to management of the radio spectrum to be carried on during a transitional period by the Director General of Telecommunications and the Secretary of State, in which case the functions are temporarily vested in one or other of them. Commencement orders under Clause 403 are not subject to any Parliamentary procedure.

Application of enactments to territorial sea and other waters

147.  Clause 402(2) provides for Her Majesty by Order in Council to apply the provisions of Part 2 of the Bill, the enactments relating to the management of the radio spectrum not contained in Part 2 of the Bill and any related provision in Chapter 1 of Part 5 of the Bill to the territorial sea and other waters of the United Kingdom. Any order is subject to the negative resolution procedure.

148.  Clause 402(3) provides for Orders in Council under section 11 of the Petroleum Act 1998 to treat installations outside territorial waters but within the area of the United Kingdom continental shelf (or the area of a foreign continental shelf adjacent to the United Kingdom continental shelf where an oil or gas field lies on both sides of the boundary between the two) and waters within 500 metres of the installations as if they were situated within the United Kingdom for the purposes of Part 2 of the Bill, the enactments relating to the management of the radio spectrum not contained in Part 2 of the Bill and any related provision in Chapter 1 of Part 5 of the Bill. Any order is subject to the negative resolution procedure.

Short title, commencement and extent

149.  Clause 403(2) gives the Secretary of State the power by order to bring the Act into force on different days and for different purposes. The intention is to provide the Secretary of State with flexibility so that, for example, those provisions implementing EC Directive requirements can be brought into force on the day required, whilst other provisions might need to be brought into force at a different time. Clause 403(5) permits Her Majesty by Order in Council to extend the provisions of the Communications Bill (with appropriate modifications) to the Channel Islands and the Isle of Man. The orders are subject to no Parliamentary procedure.

Retrospective modification of a transfer scheme

150.  Paragraph 3(1) of Schedule 2 gives the Secretary of State the power, by order, following consultation with OFCOM, to provide for a transfer scheme to be deemed to have come into force with such modifications (including modifications retrospective to the time of the coming into force of the scheme) as may be provided for in the order. The power exercisable under this provision may only be exercisable for the purpose of making provision that could have been made by the scheme. The reason for the inclusion of this provision is to ensure that the Secretary of State may modify a transfer scheme where a matter comes to light that was not apparent at the time the transfer scheme came into force. For example, a particular liability or right of one of the existing regulators may come to light after a transfer scheme has been made and in such a case this provision would enable the Secretary of State to modify the transfer scheme in order to transfer that liability or right to OFCOM.

Compulsory purchase and entry for explanatory purpose

151.  Schedule 4 confers on code operators the power to purchase compulsorily land in England and Wales and Scotland, where authorised by the Secretary of State and with the consent of OFCOM. In Northern Ireland, code operators may purchase compulsorily land by requesting (with the consent of OFCOM) the Secretary of State to order that land vests in them. This provision re-enacts sections 34 to 40 of the Telecommunications Act 1984 (which are repealed by the Bill), with certain consequential amendments to take account of the abolition of the regulatory regime under the Telecommunications Act 1984.

152.  Paragraph 3 of Schedule 4 confers on code operators the power to purchase compulsorily land in England and Wales where authorised in an order by the Secretary of State. Before issuing an order under paragraph 3, the Secretary of State must obtain OFCOM's consent. An order is also subject to the negative resolution procedure.

153.  Paragraph 4 of Schedule 4 mirrors the language in paragraph 3. A code operator may purchase compulsorily land in Scotland where authorised in an order by the Secretary of State. Before issuing an order under paragraph 4, the Secretary of State must obtain OFCOM's consent. An order is also subject to the negative resolution procedure.

154.  Paragraph 5 of Schedule 4 stipulates that a code operator may, with the consent of OFCOM, apply to the Secretary of State for an order vesting land in him in Northern Ireland. The Secretary of State does not have power to make an order until she receives an application from a code operator. Any order is subject to the negative resolution procedure.

Procedure for grants of recognised spectrum access

155.  Paragraph 1 of Schedule 5 makes additional detailed provision about the procedure for the grant, modification and revocation of RSA. OFCOM are, by regulation, to prescribe procedures for applications for a grant of RSA including requirements that must be fulfilled before, and restrictions and conditions subject to which, a grant will be made. Any regulations made by OFCOM under Schedule 5 must comply with the procedure set out in Clause 388.

Fixed penalties for wireless telegraphy offences

156.  Schedule 6 to the Bill introduces a fixed penalty regime for summary offences under the Wireless Telegraphy Act 1949.

157.  Paragraph 2(1) of Schedule 6 gives the Secretary of State power to specify, by regulations, the amount of the fixed penalty for summary offences committed under the Wireless Telegraphy Act 1949. Any regulations made under this paragraph must comply with the negative resolution procedure. It should be noted, however, that the Secretary of State in prescribing the amount of fine in this paragraph cannot exceed 25 per cent of the maximum fine on summary conviction of the offence in question.

158.  Paragraph 12 of Schedule 6 gives the Secretary of State power to make regulations relating to any matter incidental to the operation of Schedule 6, in particular for prescribing any information in a notice, notification, certificate or receipt or prescribing the duties of relevant officers and the information to be supplied to them. Any regulations made under this paragraph must comply with the negative resolution procedure.

Power to modify penalties in paragraph 12

159.  Schedule 10 specifies the procedure with which OFCOM must comply when it seeks to award a licence to provide the public teletext service and the conditions to be included in the licence. It also gives OFCOM powers to enforce the conditions included in the public teletext service licence. Paragraph 12 of the Schedule provides that where OFCOM decide to revoke a public teletext service licence, they must also notify the former licence holder of the penalty that he must pay. A maximum fine (whichever is the greater) of either £500,000 or 7 per cent of either the estimated or actual qualifying revenue may be imposed. Paragraph 13 of Schedule 10 gives power to the Secretary of State to substitute by order a different sum from the sums specified in paragraph 12. Any orders made under this paragraph must comply with the affirmative resolution procedure.

Corresponding obligations of the BBC and Welsh Authority

160.  Schedule 12 sets out obligations that correspond to those in the regulatory regime for licensed providers and apply to the BBC and the Welsh Authority. It provides that the BBC is under a duty to publicise any procedures established by OFCOM or the BBC for the handling and resolution of complaints about the observance by the BBC of standards set under Clause 307. The BBC is also under a duty to ensure that at least 25 per cent of programmes specified by the Secretary of State as 'qualifying programmes' are made up of a range and diversity of independent productions.

161.  Paragraph 1(2) of Schedule 12 gives the Secretary of State the power by order to specify the scope of the terms "qualifying programmes" and "independent productions" for the purposes of the independent production quota for the BBC. Paragraph 1(3) of Schedule 12 gives the Secretary of State the power by order to amend the independent programming quota for the BBC. Paragraph 1(4) of Schedule 12 gives the Secretary of State the power by order to provide that the BBC have the duty to secure that in each year the programming quota for independent productions must be met by "value", by "broadcasting time" or both, and paragraph 1(11) enables the order to make provision about how a "value" quota is to be applied. Before making any orders under this paragraph, the Secretary of State must consult OFCOM and the BBC and comply with the affirmative resolution procedure (paragraph 1(12) and (13)). An order imposing or removing a requirement for the quota to be met by "value" or "broadcasting time" can only be made following a recommendation by OFCOM (paragraph 1(7).) Paragraphs 1(8) and (9) of Schedule 12 enables the Secretary of State and the BBC, by agreement, to provide for the statutory quota to apply separately, rather than aggregately, to different television broadcasting services or groups of such services provided by the BBC.

162.  Schedule 12 also sets out a number of obligations of the Welsh Authority. Paragraph 3 sets out the duty of the Authority to secure that each of their public service remits for S4C, S4C Digital and other services authorised by the Secretary of State under Clause 202 is fulfilled. The public service remit of any service approved under Clause 202 is to be set out in the order giving approval for the service: paragraph 3(4). Under paragraph 3(5) of Schedule 12 the public service remits of the Welsh Authority's services may be amended by order of the Secretary of State. However, before making any such amendment the Secretary of State must consult the Welsh Authority and, if the order relates to programmes that are not in Welsh, the Channel 4 Corporation. Any order amending the public service remits of S4C or S4C Digital must be consistent with the requirement that those services should further the dissemination of information, education and entertainment and should include programmes a substantial proportion of which are in Welsh. The orders are subject to the affirmative resolution procedure.

163.  Paragraphs 7 and 8 detail the programming quotas for independent and original productions. Paragraph 7(2) of Schedule 12 gives the Secretary of State the power to specify by order the description of programmes that should be qualifying programmes for the purposes of paragraph 7(1) and to specify by order the programmes that are treated as independent productions in relation to S4C, S4C Digital and any other public television service of the Authority. Paragraph 7(3) of Schedule 12 gives the Secretary of State the power to amend by order the independent productions quota for those services. Paragraph 7(4) of Schedule 12 allows the Secretary of State, by order, to require the Welsh Authority to use a certain proportion of that years programming budget (allocated to public service broadcasting) to purchase independently produced programmes. This duty can be imposed as well as, or instead of, the obligation to have 25 per cent of their public service programming being allocated to independent productions. An order imposing or removing a requirement for the quota to be met by "value" or "broadcasting time" can only be made following a recommendation by OFCOM (paragraph 7(7)) and there must be consultation with OFCOM, the BBC and the Welsh Authority. Paragraph 8(6) of Schedule 12 give the Secretary of State power by order to specify the programmes that are considered to be original productions for the purposes of paragraph 8(1). Paragraph 8(7) of Schedule 12 permits any order made under subparagraph (6) to grant OFCOM a power to make judgements for the purposes of applying the definition of an original production. Any orders made under these paragraphs must comply with the affirmative resolution procedure.

OFCOM's power to make directions in respect of advertising

164.  Paragraph 14 requires the Welsh Authority to comply with directions by OFCOM in relation to the exclusion of advertisements or types of sponsorship from its public television services. The Authority is also required, under paragraph 16 to comply with directions by OFCOM as to the amounts of advertisements, the interval between them and the frequency of advertising breaks.

165.  Paragraphs 22 and 23 set out the duty of the Welsh Authority to observe the code under Clause 298 of the Bill (to which the order making power in clause 301 applies) when providing services for the deaf and visually impaired, for S4C Digital or any other television service which it provides in digital form. Paragraph 23 imposes a duty to promote equality of opportunity. Paragraph 23(7) of Schedule 12 give the Secretary of State power by order to determine other forms of equality of opportunity that the Welsh Authority must promote in relation to employment with the Authority. No order is to be made containing provision authorised under paragraph 23 unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Change of the order making powers to amend penalties under the Broadcasting Act 1990 and 1996.

166.  Paragraphs 9, 16 and 22 of Schedule 13 amend the provisions in the Broadcasting Acts 1990 and 1996 relating to financial penalties. In particular, paragraph 9 of Schedule 13 gives the Secretary of State power to change, by order, any of the penalties set out in sections 18(3B)(a), 18(3C)(a), 42B(3A)(a), 101(3B)(a) 101(3C)(a), 110(1B)(a) and 110(3) of the Broadcasting Act 1990. In doing so she must comply with the affirmative resolution procedure. Paragraphs 16 and 22 change the provisions in sections 36 and 69 of the 1996 Act so that orders amending certain maximum penalties must now be made subject to the affirmative rather than the negative resolution procedure. The provisions affected by these two paragraphs are sections 11(5B)(a), 11(5C)(a), 17(2A)(a), 23(2A)(a), 27(2A)(a), 53(5)(a), 53(5)(b)(i), 59(2A)(a), 59(4), 62(2A)(a), 62(6), 66(2A)(a) and 66(4) of the Broadcasting Act 1996.

Media ownership rules

167.  Clause 342 repeals the rules in Parts 3, 4 and 5 of Schedule 2 to the 1990 Broadcasting Act relating to restrictions on accumulations of interests and on licence holding by newspapers and telecommunications providers, some of which are replaced by Schedule 14.

168.  Part 1 of Schedule 14 establishes the new rules relating to the ownership of television services, replacing the rules repealed by Clause 342. These apply only to Channel 3 services and not, as before, to Channel 5. Paragraph 6 of Schedule 14 gives the Secretary of State power to repeal or modify any of the rules in Part 1 by order. Any order made under this paragraph must be made in accordance with paragraph 15 of Schedule 14. Paragraph 15 requires the Secretary of State to consult with OFCOM before making an order under any provision of Schedule 14 (unless the order is confined to giving effect to a recommendation of OFCOM under Clause 384). Any order must comply with the affirmative procedure. When the Secretary of State consults with OFCOM, they must have regard to their duties under Clause 384(1).

169.  Part 2 of Schedule 14 establishes the rules relating to the ownership of radio multiplex licences, again replacing the rules repealed by Clause 342. Under Paragraph 10 of Schedule 14, the Secretary of State is given power to repeal or modify any of the rules in Part 2 by order. Any order made under this paragraph must be made in accordance with paragraph 15 of Schedule 14 (see above).

170.  Rules relating to licences for local sound broadcasting and local digital sound programme service licences are to be replaced by provisions made by order under Part 3 (see in particular, paragraphs 11 and 12) of Schedule 14. Paragraph 11 of Schedule 14 allows the Secretary of State to impose limits on the number of local sound broadcasting licences that any person owns, or to prevent a person owning any licences at all in certain circumstances. The rules of this sort may operate, in particular, by reference to:

  • the degree of overlap of the different services involved;
  • the size of the potential audience for those services
  • the times when they would be made available
  • the extent to which there would be other persons with licences to broadcast to the same potential audience, the number of those persons and the audience size and coverage area of their stations;
  • whether that person runs national newspapers, and the national market share of those newspapers;
  • whether that person runs local newspapers that serve any part of the for which they would hold a radio licence, and the newspapers' local market share; and
  • whether and to what extent the coverage area of the licence in question overlaps with the coverage area of a regional Channel 3 service for which he also owns the licence.

171.  Paragraph 12 of Schedule 14 gives similar powers to impose restrictions on the number of digital sound programme services that a person holding a local digital sound programme licence may provide. Rules made under this paragraph may operate, in particular, by reference to:

  • the degree of overlap of the different services involved;
  • the multiplex capacity that the services use;
  • the size of the potential audience for those services
  • the times when they would be made available;
  • the extent to which members of the potential audience for those services would also be members of the potential audiences for services provided by other persons, and where that is the case, the number of those persons, the multiplex capacity that they use, the audience size and the times when their services will be available.

172.  Orders under paragraph 11 or 12 are subject to paragraph 15 of this Schedule (see above).

Minor and Consequential Amendments

173.  Schedule 17 sets out minor amendments to other legislation and amendments to other legislation that are consequential upon the Bill. Paragraph 1 of the Schedule sets out the definitions that apply for the purposes of any Act or instrument amended by the Schedule. The majority of these amendments involve changes to terms contained in other legislation that are used in relation to the current telecommunications licensing regime that is to be replaced by the Communications Bill. This is to ensure, as far as possible, that the current term is replaced with an equivalent term for the purposes of the new regulatory regime.

174.  Paragraphs 6 to 19 of Schedule 17 set out a number of minor and consequential amendments to the Wireless Telegraphy Act 1949. Paragraph 6 of Schedule 17 amends section 1 of the Wireless Telegraphy Act 1949 to now give OFCOM the power to make regulations under that section. Paragraph 8(4) of Schedule 17 gives OFCOM a power to make regulations that prescribe the procedures to determine applications for a grant of a Wireless Telegraphy Act 1949 licence.

175.  Paragraphs 9(2) and 11(2) of Schedule 17 amend those sections of the Wireless Telegraphy Act 1949 which provide for regulations as to wireless telegraphy and regulations as to radiation of electro-magnetic energy, to give OFCOM the power to make those regulations. Any orders made under these paragraphs must comply with the negative resolution procedure, as well as having the consent of the Secretary of State.

176.  Paragraphs 63 to 75 of Schedule 17 set out a number of minor and consequential amendments to the Telecommunications Act 1984. Paragraph 67 of Schedule 17 gives the Secretary of State the power under section 84(8A) of the Telecommunications Act 1984 to amend by order the definition of "relevant authority". Any orders made under this paragraph must comply with the negative resolution procedure.

177.  Paragraph 73 of Schedule 17 gives OFCOM the power under section 104(11B) of the Telecommunications Act 1984 to make orders under section 85 or 86 of that Act in relation to information to be marked on or to accompany wireless telegraphy apparatus or to be given in advertisements for such apparatus. Any orders made under this paragraph must comply with the procedure set out in Clause 396. However, an order under paragraph 73 will also require the consent of the Secretary of State.

Transitional Provisions

178.  Paragraph 7 of Schedule 18 makes provision for the saving of SMP licence conditions imposed under the Telecommunications Act 1984. It provides that OFCOM may give the holder of a licence granted under the Telecommunications Act 1984 a continuation notice. The effect of a continuation notice is that, notwithstanding any repeal or revocation, the licence under the Telecommunications Act 1984, so far as it imposes a condition specified in a continuation notice, remains in force for so long as the continuation is in force. The inclusion of such a provision is necessary to ensure the smooth transition from the regulatory regime contained in the Telecommunications Act 1984 to the new regulatory regime contained in Chapter 1 of Part 2 of the Bill.

179.  Paragraph 13 of Schedule 18 provides that where, immediately before the coming into force of this Clause, the code applied to any person by virtue of the conditions of his or her telecommunications licence, that person shall be treated, after the coming into force of this Clause, as a person in whose case the code applies by virtue of a direction given by OFCOM. Paragraph 13(2) of Schedule 18 give the Secretary of State the power by order to provide for the charging of fees in respect of the giving of approvals for the purposes of a general of a general condition set under Clause 41. Any order made under this paragraph must comply with the negative resolution procedure.


 
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