Communications Act 2003 (c. 21)

(The document as of February, 2008)

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(b) not such as to discriminate unduly against particular persons or against a particular description of persons;

(d) in relation to what they are intended to achieve, transparent.

(5) It shall be the duty of OFCOM to exercise the following powers in accordance with the orders for the time being in force under this section--

(a) their powers under the Wireless Telegraphy Act 1949 and the Wireless Telegraphy Act 1998 (c. 6) with respect to wireless telegraphy licences; and

(b) their powers under the Wireless Telegraphy Act 1998 and this Chapter with respect to grants of recognised spectrum access.

(6) OFCOM must keep under review any order for the time being in force under this section.

(7) It shall be the duty of OFCOM to make an order revoking or amending the provisions of an order under this section if, on reviewing it, they consider it necessary to do so for the purpose of securing the efficient use of the electro-magnetic spectrum.

(8) An order under this section may make provision by reference to determinations which--

(a) are made from time to time by OFCOM in accordance with the provisions of such an order; and

(b) are published by them from time to time in such manner as may be provided for in such an order.

(9) Section 403 applies to the power of OFCOM to make an order under this section.

165 Terms etc. of wireless telegraphy licences

In section 1 of the Wireless Telegraphy Act 1949 (c. 54), after subsection (2) (terms, provisions and limitations of the licence) there shall be inserted--

" (2A) Those terms, provisions and limitations may also include, in particular--

(a) terms, provisions and limitations as to strength or type of signal, as to times of use and as to the sharing of frequencies;

(b) terms, provisions or limitations imposing prohibitions on the transmission or broadcasting of particular matters by the holder of the licence; and

(2B) A licence under this section may be granted either--

(a) in relation to a particular station or particular apparatus; or

(b) in relation to any station or apparatus falling within a description specified in the licence;

and such a description may be expressed by reference to such factors (including factors confined to the manner in which it is established, installed or used) as OFCOM think fit.

(2C) The terms, provisions and limitations of a licence granted under this section to a person must not duplicate obligations already imposed on him by general conditions set under section 45 of the Communications Act 2003. "

166 Exemption from need for wireless telegraphy licence

After section 1 of the Wireless Telegraphy Act 1949 there shall be inserted--

" 1AA Exemption from need for wireless telegraphy licence

(1) If OFCOM are satisfied that the condition in subsection (2) is satisfied as respects the use of stations or apparatus of any particular description, they shall make regulations under section 1 of this Act exempting the establishment, installation and use of any station or apparatus of that description from the prohibition in that section.

(2) That condition is that the use of stations or apparatus of that description is not likely to involve any undue interference with wireless telegraphy. "

Award and transfer of licences

167 Bidding for wireless telegraphy licences

(1) Section 3 of the Wireless Telegraphy Act 1998 (c. 6) (bidding for wireless telegraphy licences) shall be amended as follows.

(2) The following shall cease to have effect--

(a) in subsection (1), the words "or determined by him under" and paragraph (a) (requirement to set out procedure for bidding in a notice issued under regulations); and

(b) subsection (2) (matters to be included in regulations).

(3) In subsection (3) (provision that may be contained in regulations)--

(a) for paragraph (a) there shall be substituted--

" (a) require the applicant's bid to specify the amount he is willing to pay;

(aa) require that amount to be expressed--

(i) as a cash sum;

(ii) as a sum determined by reference to a variable (such as income attributable wholly or in part to the holding of the licence);

(iii) as a combination of the two; or

(iv) (at the applicant's choice) in any one of the ways falling within the preceding sub-paragraphs that is authorised by the regulations;

(ab) require that amount to be expressed in terms of--

(i) the making of a single payment;

(ii) the making of periodic payments;

(iii) a combination of the two; or

(iv) (at the applicant's choice) in any one of the ways falling within the preceding sub-paragraphs that is authorised by the regulations; "

(b) in paragraph (f), for "any licence" there shall be substituted "a licence to which the regulations apply"; and

(4) For subsection (4) (notice not to create binding obligation to grant licence) there shall be substituted--

" (4) Regulations under this section are not to be construed as binding OFCOM to grant a licence on the completion of the procedure provided for in the regulations except in such circumstances as may be provided for in the regulations. "

(5) For subsection (5) (licence to specify the amount payable in accordance with the applicant's bid) there shall be substituted--

" (5) A wireless telegraphy licence granted in accordance with regulations under this section shall specify either--

(a) the sum or sums which in consequence of the bids made are, in accordance with the regulations, to be payable in respect of the licence; or

(b) the method for determining that sum or those sums;

and that sum or those sums shall be paid to OFCOM by the person to whom the licence is granted in accordance with the terms of the licence. "

(6) For subsection (6) there shall be substituted--

" (5A) In determining the sum or sums payable in respect of a wireless telegraphy licence, regard may be had to bids made for other wireless telegraphy licences and for grants of recognised spectrum access.

(5B) Regulations under this section may provide that where a person--

(a) makes an application for a licence in accordance with a procedure provided for by such regulations, but

(b) subsequently refuses the licence applied for,

that person shall make such payments to OFCOM as may be determined in accordance with the regulations by reference to bids made for the licence.

(6) Subsection (4) of section 1 is to apply in relation to sums that will or may become payable under regulations under this section subsequently to the grant of a wireless telegraphy licence as it applies to sums that will or may become payable under regulations under that section. "

168 Spectrum trading

(1) OFCOM may by regulations authorise the transfer to another person by--

(a) the holder of a wireless telegraphy licence, or

(b) the holder of a grant of recognised spectrum access,

of rights and obligations arising by virtue of such a licence or grant.

(2) The transfers that may be authorised by regulations under this section are--

(a) such transfers of all or any of the rights and obligations under a licence or grant as have the effect that the rights and obligations of the person making the transfer become rights and obligations of the transferee to the exclusion of the person making the transfer;

(b) such transfers of all or any those rights and obligations as have the effect that the transferred rights and obligations become rights and obligations of the transferee while continuing, concurrently, to be rights and obligations of the person making the transfer; and

(c) transfers falling within either of the preceding paragraphs under which the rights and obligations that are acquired by the transferee take effect--

(i) if they are rights and obligations under a wireless telegraphy licence, as rights and obligations under a grant of recognised spectrum access; and

(ii) if they are rights and obligations under such a grant, as rights and obligations under a wireless telegraphy licence.

(3) Regulations authorising the transfer of rights and obligations under a wireless telegraphy licence or grant of recognised spectrum access may--

(a) authorise a partial transfer to be made by reference to such factors and apportionments, and to have effect in relation to such matters and periods, as may be described in the regulations, or as may be determined in accordance with them;

(b) by reference to such factors (including the terms and conditions of the licence or grant in question) as may be specified in or determined in accordance with the regulations, restrict the circumstances in which, the extent to which and the manner in which a transfer may be made;

(d) provide for a transfer to be effected by the surrender of a licence or grant of recognised spectrum access and the grant or making of a new one in respect of the transfer;

(e) confer power on OFCOM to direct that a transfer must not be made, or is to be made only after compliance with such conditions as OFCOM may impose in accordance with the regulations;

(f) authorise OFCOM to require the payment to them of such sums as may be determined by or in accordance with the regulations in respect of determinations made by OFCOM for the purposes of the regulations or in respect of an approval or consent given for those purposes;

(g) make provision for the giving of security (whether by the giving of deposits or otherwise) in respect of sums payable in pursuance of any regulations under this section;

(h) make provision as to the circumstances in which security given under such regulations is to be returned or may be retained;

(i) impose requirements as to the procedure to be followed for the making of a transfer and, in particular, as to the notification about a transfer that must be given to OFCOM, or must be published, both in advance of its being made and afterwards;

(j) impose requirements as to the records to be kept in connection with any transfer, and as to the persons to whom such records are to be made available;

(k) set out the matters to be taken into account in the making of determinations under regulations under this section.

(4) The transfer of rights and obligations under a wireless telegraphy licence or grant of recognised spectrum access shall be void except to the extent that it is made--

(a) in accordance with regulations under this section; or

(b) in accordance with a provision specified in subsection (5).

(5) That provision is a provision which--

(a) is contained in a wireless telegraphy licence granted before the commencement of this section or in the first or any subsequent renewal after the commencement of this section of a licence so granted; and

(b) allows the holder of the licence to confer the benefit of the licence on another in respect of any station or apparatus to which the licence relates.

(6) A transfer shall also be void if it is made in contravention of a direction given by OFCOM in exercise of a power conferred by regulations under this section.

(7) Section 403 applies to the power of OFCOM to make regulations under this section.

Variation and revocation of licences

169 Variation and revocation of wireless telegraphy licences

(1) For section 1E of the Wireless Telegraphy Act 1949 (c. 54) (variation and revocation of licences for the provision of a telecommunication service) there shall be substituted--

" 1E Variation or revocation of a licence

(1) Where OFCOM propose to vary or revoke a wireless telegraphy licence, they shall give the person holding the licence a notification under this subsection--

(a) stating the reasons for the proposed variation or revocation; and

(b) specifying the period during which the person notified has an opportunity to do the things specified in subsection (2).

(2) Those things are--

(a) making representations about the proposal; and

(b) if the proposal is the result of a contravention of a term, provision or limitation of the licence, complying with that term, provision or limitation.

(3) Subject to subsections (4) to (6), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

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

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

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

(5) The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(6) The person notified shall also have a shorter period if--

(a) OFCOM have reasonable grounds for believing that the case is a case of serious and repeated contravention or an urgent case;

(b) they have determined that, in the circumstances, a shorter period would be appropriate; and

(7) A case is an urgent case if the failure to vary or revoke the licence will result in, or create an immediate risk of--

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

(b) serious economic or operational problems for persons, other than the person in contravention, who--

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

(ii) are communications providers or make associated facilities available.

(8) Subsection (1) does not apply to a proposal to vary or revoke a licence if the proposal is made at the request or with the consent of the licence holder.

(9) For the purposes of this section a contravention of a term, provision or limitation of a licence is a repeated contravention, in relation to a proposal to vary or revoke a licence, if it falls within subsection (10).

(10) A contravention falls within this subsection if--

(a) a previous notification under subsection (1) has been given in respect of the same contravention or in respect of another contravention of a term, provision or limitation of the same licence; and

(b) the subsequent notification under that subsection is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of subsection (11) that the contravention to which the previous notification related did occur.

(11) Where OFCOM have given a notification under subsection (1), they shall, within the period of one month beginning with the end of the period for the making of representations about the proposal contained in that notification--

(a) decide whether or not to vary or revoke the licence in accordance with their proposal, or in accordance with that proposal but with modifications; and

(b) give the person holding the licence a notification of their decision.

(12) The notification under subsection (11)--

(a) must be given no more than one week after the making of the decision to which it relates; and

(b) must, in accordance with that decision, either vary or revoke the licence or withdraw the proposal for a variation or revocation.

(13) The reference in subsection (10) to a contravention of a term, provision or limitation of the same licence includes a reference to a contravention of a term, provision or limitation contained in a previous licence of which the licence in question is a direct or indirect renewal.

(14) In this section, "communications provider" and "associated facility" have the same meaning as in the Communications Act 2003. "

(2) Nothing in this section is to apply in any case in which a notice under section 1E(1) of the Wireless Telegraphy Act 1949 (c. 54) was served before the commencement of this section.

Wireless telegraphy register

170 Wireless telegraphy register

(1) OFCOM may by regulations make provision for the establishment and maintenance of a register of relevant information.

(2) OFCOM are to include relevant information in the register if, and only if, it is relevant information of a description prescribed by regulations under this section.

(3) Information is relevant information for the purposes of subsection (1) if it relates to--

(a) the issue, renewal, transfer, variation or revocation of wireless telegraphy licences; or

(b) the making, renewal, transfer, modification or revocation of grants of recognised spectrum access.

(4) Subject to such conditions (including conditions as to payment) as may be prescribed by regulations under this section, a register established by virtue of subsection (1) shall be open to inspection by the public.

(5) Section 403 applies to the power of OFCOM to make regulations under this section.

Information requirements

171 Information requirements in relation to wireless telegraphy licences

(1) In Part 3 of the Wireless Telegraphy Act 1949 (c. 54) (supplemental provisions), before section 14 there shall be inserted--

" 13A Information requirements

(1) Subject to the following provisions of this section, OFCOM may require a person who is using or has established, installed or used a station or apparatus for wireless telegraphy to provide OFCOM with all such information relating to--

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

(b) any related matters,

as OFCOM may require for statistical purposes.

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

(a) by a demand for the information that sets out OFCOM's reasons for requiring the information and the statistical purposes for which it is required; and

(b) where the making of a demand for that information is proportionate to the use to which the information is to be put in the carrying out of OFCOM's functions.

(3) A demand for information required under this section must be contained in the notice served on the person from whom the information is required.

(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(5) A person who fails to provide information in accordance with a requirement of OFCOM under this section is guilty of an offence.

(6) In proceedings against a person for an offence under subsection (1) it shall be a defence for that person to show--

(a) that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but

(b) that he has taken all reasonable steps to provide the required information after the end of that period.

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

(a) in pursuance of any requirement under this section, he provides information that is false in any material particular; and

(b) at the time he provides it, he either knows it to be false or is reckless as to whether or not it is false.

13B Statement of policy on information gathering

(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to--

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

(b) the uses to which they are proposing to put information obtained under that section.

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

(3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by section 13A, to have regard to the statement for the time being in force under this section. "

(2) In section 14(1A) of that Act (summary offences carrying a maximum fine of level 3 on the standard scale), before paragraph (f) there shall be inserted--

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

Criminal proceedings etc.

172 Contraventions of conditions for use of wireless telegraphy

(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened--

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

(b) a term, provision or limitation of an exemption under the proviso to section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) (exemptions from licensing requirement),

they may give that person a notification under this section.

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

(a) sets out the determination made by OFCOM;

(b) specifies the term, provision or limitation, and the contravention, in respect of which that determination has been made; and

(c) specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

(3) Those things are--

(a) making representations about the matters notified; and

(b) complying with any notified term, provision or limitation of which he remains in contravention.

(4) Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

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

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

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

(6) The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

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

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

(b) they have determined that, in those circumstances, a shorter period would be appropriate; and

173 Meaning of "repeated contravention" in s. 172

(1) For the purposes of section 172 a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if--

(a) in the case of a contravention of a term, provision or limitation of a licence, it falls within subsection (2) or (3); or

(b) in the case of a contravention of a term, provision or limitation of an exemption, it falls within subsection (4) or (5).

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

(a) a previous notification under section 172 has been given in respect of the same contravention or in respect of another contravention of a term, provision or limitation of the same licence;

(b) the person who was given that notification subsequently took steps for remedying the notified contravention; and

(c) the subsequent notification is given no more than twelve months after the day of the giving of the previous notification.

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

(a) the person concerned has been convicted of an offence under section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) in respect of the contravention to which the notification relates or in respect of another contravention of a term, provision or limitation of the same licence; and

(b) the subsequent notification is given before the end of the period of twelve months from the contravention in respect of which that person was convicted of that offence.

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

(a) a previous notification under section 172 has been given in respect of the same contravention or in respect of another contravention of the same term, provision or limitation;

(b) the person who was given that notification subsequently took steps for remedying the notified contravention; and

(c) the subsequent notification is given no more than twelve months after the day of the giving of the previous notification.

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

(b) the subsequent notification is given before the end of the period of twelve months from the contravention in respect of which that person was convicted of that offence.

(6) In calculating the periods of twelve months mentioned in subsections (3)(b) and (5)(b), the period between the institution of the criminal proceedings which led to the conviction and the conclusion of those proceedings shall be left out of account.

(7) For the purposes of subsection (6) criminal proceedings shall be taken to be concluded when no further appeal against conviction may be brought without the permission of the court and--

(a) in a case where there is no fixed period within which that permission can be sought, permission has been refused or has not been sought; or

(b) in a case where there is a fixed period within which that permission can be sought, that permission has been refused or that period has expired without permission having been sought.

(8) References in this section to remedying a contravention include references to each of the following--

(a) doing any thing the failure to do which, or the failure to do which within a particular period or before a particular time, constituted the whole or a part of the contravention;

(b) paying an amount to a person by way of compensation for loss or damage suffered by that person in consequence of the contravention;

(c) paying an amount to a person by way of compensation in respect of annoyance, inconvenience or anxiety to which he has been put in consequence of the contravention; and

(d) otherwise acting in a manner that constitutes an acknowledgement that the notified contravention did occur.

(9) References in this section to a contravention of a term, provision or limitation of a licence include a reference to a contravention of a term, provision or limitation contained in a previous licence of which the licence in question is a direct or indirect renewal.

174 Procedure for prosecutions of wireless telegraphy offences

(1) This section applies to proceedings against a person ("the defendant") for an offence under section 1 of the Wireless Telegraphy Act 1949 consisting in the contravention of--

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

(b) the terms, provisions or limitations of an exemption under the proviso to section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) (exemptions from licensing requirement).

(2) Proceedings to which this section applies are not to be brought at any time after the coming into force of this section unless, before they are brought, OFCOM have--

(a) given the defendant a notification under section 172 in respect of the contravention to which the proceedings relate; and

(b) considered any representations about the matters notified which were made by the defendant within the period allowed under that section.

(3) Proceedings to which this section applies are not to be brought at any time after the coming into force of this section in respect of a contravention if--

(a) it is a contravention to which a notification given to that person under section 172 relates; and

(b) that person has, during the period allowed under that section, complied with the notified term, provision or limitation.

(4) Subsection (2) does not apply where OFCOM have certified that it would be inappropriate to follow the procedure in section 172 because of an immediate risk of--

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

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

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

(ii) are communications providers or make associated facilities available.

(5) Where--

(a) proceedings to which this section applies are brought by virtue of subsection (4) without a notification having been given to the defendant, and

(b) the defendant is convicted in those proceedings of the offence under section 1 of the Wireless Telegraphy Act 1949,

the court, in determining how to deal with that person, shall have regard, in particular, to the matters specified in subsection (6).

(6) Those matters are--

(a) whether the defendant has ceased to be in contravention of the terms, provisions or limitations in question and (if so) when; and

(b) any steps taken by the defendant (whether before or after the commencement of the proceedings) for securing compliance with the obligations imposed on him by virtue of those terms, provisions or limitations.

(7) Notwithstanding anything in section 127 of the Magistrates' Courts Act 1980 (c. 43) or Article 19 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (limitation on time for bringing summary proceedings) where--

(a) OFCOM give a notification under section 172 in respect of a contravention, and

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

the time for the bringing of proceedings for a summary offence in respect of that contravention shall be extended until the end of six months from the end of the period allowed, in the case of that notification, for doing the things mentioned in section 172(3) of this Act.

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