Office of Public Sector Information
PART 2 continued CHAPTER 2 continued
(1) The amount of a penalty imposed under section 175 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 specified in section 177.
(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 resolution of each House.
(1) The relevant amount of gross revenue for the purposes of section 176, in relation to a penalty imposed on a person, is—
(a) where the last accounting period of that person which falls before the 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 (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
(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 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,
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 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.
(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
(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 purpose of ascertaining the amount of a person’s gross revenue for any period for the purposes of section 176 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.
(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
“gross revenue”, in relation to a person, means the gross revenue of an undertaking carried on by that person.
(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 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 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
(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.
(2B) For the purposes of this section an appeal under section 192 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 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—
(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 refused or that period has 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
(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 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 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 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 been convicted at a time when there was no pending appeal.
(1B) For the purposes of this section any appeal under section 192 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—
(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—
(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 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—
(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 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.”
(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 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 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
(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 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—
“(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.
Schedule 6 (which makes provision as respects fixed penalty notices for summary offences under the Wireless Telegraphy Act 1949 (c. 54)) shall have effect.
(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—
2A An offence mentioned in section 14(1) of the Wireless Telegraphy Act 1949 (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—
“(j) an offence mentioned in section 14(1) of the Wireless Telegraphy Act 1949 (offences under that Act which are triable either way);”.
(1) Apparatus to which this section applies shall be liable to forfeiture if, 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—
(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 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.
(6) Sections 80 and 81 of the Telecommunications Act 1984 (c. 12) (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 (c. 72), paragraph (b) (which allows a person to have custody or control of restricted apparatus when authorised otherwise than by the Secretary of State) shall cease to have effect.
For subsection (5) of section 19 of the Wireless Telegraphy Act 1949 (c. 54) (meaning 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 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—
(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.”
(1) The Secretary of State may by order modify the definition of “wireless telegraphy” in section 19(1) of the Wireless Telegraphy Act 1949 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.
(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.
(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;
(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 74(1) between a communications provider or person who makes 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 person to whom such a condition applies.
(2) This section also applies in the case of any other dispute if—
(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.
(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
(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 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;
(b) contraventions of sections 125 to 127;
(c) obligations imposed on a communications provider by or under any of sections 128 to 131; or
(d) the operation in the case of a communications provider of section 134.
(8) For the purposes of this section—
(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 purpose of complying with that obligation.
(1) This section applies where a dispute is referred to OFCOM under and in accordance with section 185.
(2) OFCOM must decide whether or not it is appropriate for them to handle the 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
(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.
(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.
(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 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.
(1) Where a dispute is referred or referred back to OFCOM under this Chapter, the reference is not to prevent—
(a) the person making it,
(b) another party to the dispute,
(c) OFCOM, or
(d) any other person,
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 grounds 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 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 are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires; and
(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 190(8) and to any agreement to the contrary binding the parties to the dispute.
(5) In this section “legal proceedings” means civil or criminal proceedings in or before a court.
(1) This section applies where—
(a) OFCOM have decided under section 186(2) that it is appropriate for them to handle a dispute; or
(b) a dispute is referred back to OFCOM under section 186(6).
(2) OFCOM must—
(a) consider the dispute; and
(b) make a determination for resolving it.
(3) The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.
(4) In the case of a dispute referred back to OFCOM under section 186(6), that procedure may involve allowing the continuation of a procedure that has already been begun for resolving the dispute by alternative means.
(5) Except in exceptional circumstances and subject to section 187(3), OFCOM must make their determination no more than four months after the following day—
(a) in a case falling within subsection (1)(a), the day of the decision by OFCOM that it is appropriate for them to handle the dispute; and
(b) in a case falling within subsection (1)(b), the day on which the dispute is referred back to them.
(6) Where it is practicable for OFCOM to make their determination before the end of the four month period, they must make it as soon in that period as practicable.
(7) OFCOM must—
(a) send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute; and
(b) publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.
(8) The publication of information under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention, to the extent that they consider appropriate, of members of the public.
(1) This section applies where it appears to OFCOM that a dispute referred or referred back to them under this Chapter relates partly to a matter falling within the jurisdiction of the regulatory authorities of another member State.
(2) A dispute relates to matters falling within the jurisdiction of the regulatory authorities of another member State to the extent that—
(a) it relates to the carrying on of activities by one or both of the parties to the dispute in more than one member State or to activities carried on by different parties to the dispute in different member States; and
(b) the activities to which the dispute relates, so far as they are carried on in another member State, are carried on in the member State for which those authorities are the regulatory authorities.
(3) For the purposes of subsection (2) the activities that are carried on in a member State include anything done by means of an electronic communications network, or part of such a network, which is situated in that member State.
(4) Before taking any steps under this Chapter in relation to the reference or the dispute, OFCOM must consult the other regulatory authorities within whose jurisdiction the matter falls.
(5) It shall be the duty of OFCOM to secure that steps taken in relation to the reference or dispute (whether taken by them or by the other regulatory authorities) are, so far as practicable, agreed between OFCOM and those authorities.
(6) Accordingly, section 188 is to have effect in relation to the reference as if the period for making a determination which is specified in subsection (5) of that section were such period (if any) as may be agreed between—
(a) OFCOM; and
(b) the other regulatory authorities within whose jurisdiction the matter falls.
(1) Where OFCOM make a determination for resolving a dispute referred to them under this Chapter, their only powers are those conferred by this section.
(2) Their main power (except in the case of a dispute relating to rights and obligations conferred or imposed by or under the enactments relating to the management of the radio spectrum) is to do one or more of the following—
(a) to make a declaration setting out the rights and obligations of the parties to the dispute;
(b) to give a direction fixing the terms or conditions of transactions between the parties to the dispute;
(c) to give a direction imposing an obligation, enforceable by the parties to the dispute, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM; and
(d) for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties of the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.
(3) Their main power in the excepted case is just to make a declaration setting out the rights and obligations of the parties to the dispute.
(4) Nothing in this section prevents OFCOM from exercising the following powers in consequence of their consideration under this Chapter of any dispute—
(a) their powers under Chapter 1 of this Part to set, modify or revoke general conditions, universal service conditions, access related conditions, privileged supplier conditions or SMP conditions;
(b) their powers to vary, modify or revoke wireless telegraphy licences or grants of recognised spectrum access;
(c) their power to make, amend or revoke regulations under section 1 or 3 of the Wireless Telegraphy Act 1949 (c. 54).
(5) In the case of a dispute referred back to OFCOM under section 186(6)—
(a) OFCOM may, in making their determination, take account of decisions already made by others in the course of an attempt to resolve the dispute by alternative means; and
(b) the determination made by OFCOM may include provision ratifying decisions so made.
(6) Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute—
(a) to make payments to another party to the dispute in respect of costs and expenses incurred by that other party in consequence of the reference of the dispute to OFCOM, or in connection with it; and
(b) to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute.
(7) OFCOM are not, under subsection (6)(b), to require payments to be made to them by a party to the dispute except—
(a) in a case where the dispute relates to the rights and obligations of the parties to the dispute under the enactments relating to the management of the radio spectrum; or
(b) where it appears to OFCOM that the reference of the dispute by that party was frivolous or vexatious or that that party has otherwise abused the right of reference conferred by this Chapter.
(8) A determination made by OFCOM for resolving a dispute referred or referred back to them under this Chapter binds all the parties to the dispute.
(9) Subsection (8) is subject to section 192.
Communications Act 2003