Communications Act 2003 (c. 21)

(The document as of February, 2008)

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(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 revoke or modify the grant 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) For the purposes of this paragraph a contravention of a restriction or condition of a grant of recognised spectrum access is a repeated contravention, in relation to a proposal to revoke or modify the grant, if it falls within sub-paragraph (9).

(9) A contravention falls within this sub-paragraph if--

(a) a previous notification under sub-paragraph (1) has been given in respect of the same contravention or in respect of any other contravention of a restriction or condition of the same grant; and

(b) the subsequent notification under that sub-paragraph is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of sub-paragraph (10) that the contravention to which the previous notification related did occur.

(10) Where OFCOM have given a notification under sub-paragraph (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 revoke or modify the grant of recognised spectrum access in accordance with their proposal, or in accordance with that proposal but with modifications; and

(b) give the holder of the grant a notification of their decision.

(11) The notification under sub-paragraph (10)--

(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 revoke or modify the grant or withdraw the proposal for revocation or modification.

(12) Nothing in this paragraph is to apply to--

(a) a revocation or modification to be made at the request or with the consent of the holder of the grant; or

(b) a revocation or modification that appears to OFCOM to be necessary or expedient for the purpose of securing compliance with an international obligation of the United Kingdom.

(13) The reference in sub-paragraph (9) to a contravention of a restriction or condition of a grant includes a reference to a contravention of a restriction or condition contained in any previous grant of which the grant in question is a direct or indirect renewal.

Restriction on powers of revocation and modification

7 (1) The conditions that OFCOM may include in a grant of recognised spectrum access include conditions restricting the exercise by them of their power to revoke or modify that grant.

(2) Those conditions include, in particular, conditions providing that the grant may not be revoked or modified except--

(a) with the consent of the holder of the grant; or

(b) in such other circumstances, and on such grounds, as may be specified in the conditions.

(3) The circumstances or grounds--

(a) may relate to matters relevant for the purposes of any enactment (whether relating to wireless telegraphy or not); and

(b) may, in particular, be made dependent on the exercise of a statutory discretion under any enactment.

(4) Nothing in any condition included in a grant of recognised spectrum access shall restrict the power of OFCOM to revoke or modify a grant of recognised spectrum access if it appears to OFCOM to be necessary or appropriate to do so--

(a) in the interests of national security;

(b) in the interests of the safety of the public or public health; or

Interpretation

8 In this Schedule, "stations for wireless telegraphy" and "apparatus for wireless telegraphy" each has the same meaning as in the Wireless Telegraphy Act 1949 (c. 54).

Section 180

SCHEDULE 6 Fixed penalties for wireless telegraphy offences

Offences to which this Schedule applies

1 (1) This Schedule applies to an offence under the Wireless Telegraphy Act 1949 which--

(a) is a summary offence; and

(b) is committed after the coming into force of section 180.

(2) Such an offence is referred to in this Schedule as a "relevant offence".

Fixed penalties and fixed penalty notices

2 (1) The fixed penalty for a relevant offence is such amount as may be prescribed in relation to that offence by regulations made by the Secretary of State.

(2) The amount prescribed by regulations under sub-paragraph (1) is not to be more than 25 per cent. of the maximum fine on summary conviction for the offence in question.

(3) In this Schedule "fixed penalty notice" means a notice offering the opportunity of the discharge of any liability to conviction of the offence to which the notice relates by payment of a fixed penalty in accordance with this Schedule.

Issuing of fixed penalty notice

3 (1) If OFCOM have reason to believe that a person has committed a relevant offence, they may send a fixed penalty notice to that person.

(2) If a procurator fiscal receives a report that a person has committed a relevant offence in Scotland, he also shall have power to send a fixed penalty notice to that person.

(3) If an authorised person has, on any occasion, reason to believe that a person--

(a) is committing a relevant offence, or

(b) has on that occasion committed a relevant offence,

he may hand that person a fixed penalty notice.

(4) In this paragraph "authorised person" means a person authorised by OFCOM, for the purposes of sub-paragraph (3), to issue fixed penalty notices on OFCOM's behalf.

(5) References in this Schedule to the person by whom a fixed penalty notice is issued, in relation to a notice handed to a person in accordance with sub-paragraph (3), are references to OFCOM.

Content of fixed penalty notice

4 (1) A fixed penalty notice must--

(a) state the alleged offence;

(b) give such particulars of the circumstances alleged to constitute that offence as are necessary for giving reasonable information about it;

(d) specify the relevant officer to whom the fixed penalty may be paid and the address at which it may be paid;

(e) state that proceedings against the person to whom it is issued cannot be commenced in respect of the offence until the end of the suspended enforcement period;

(f) state that such proceedings cannot be commenced if the penalty is paid within the suspended enforcement period;

(g) inform the person to whom it is issued of his right to ask to be tried for the alleged offence; and

(h) explain how that right may be exercised and the effect of exercising it.

(2) The suspended enforcement period for the purposes of this Schedule is--

(a) the period of one month beginning with the day after that on which the fixed penalty notice was issued; or

(b) such longer period as may be specified in the notice.

Withdrawal of fixed penalty notice

5 If it appears to a person who has issued a fixed penalty notice that it was wrongly issued--

(a) he may withdraw the notice by a further notice to the person to whom it was issued; and

(b) if he does so, the relevant officer must repay any amount paid in respect of the penalty.

Notification to person to whom payment is to be made

6 A person who issues or withdraws a fixed penalty notice shall send a copy of the notice or (as the case may be) of the notice of withdrawal to the relevant officer specified in the notice being issued or withdrawn.

Effect of fixed penalty notice

7 (1) This paragraph applies if a fixed penalty notice is issued to a person ("the alleged offender").

(2) Proceedings for the offence to which the notice relates cannot be brought against the alleged offender until the person who issued the notice has been notified by the relevant officer specified in the notice that payment of the fixed penalty has not been made within the suspended enforcement period.

(3) If the alleged offender asks to be tried for the alleged offence--

(a) sub-paragraph (2) does not apply; and

(b) proceedings may be brought against him.

(4) Such a request must be made by a notice given by the alleged offender--

(a) in the manner specified in the fixed penalty notice; and

(b) before the end of the suspended enforcement period.

(5) A request which is made in accordance with sub-paragraph (3) is referred to in this Schedule as a "request to be tried".

Payment of fixed penalty

8 (1) If the alleged offender decides to pay the fixed penalty, he must pay it to the relevant officer specified in the notice.

(2) Payment of the penalty may be made by properly addressing, pre-paying and posting a letter containing the amount of the penalty (in cash or otherwise).

(3) Sub-paragraph (4) applies if a person--

(a) claims to have made payment by that method; and

(b) shows that his letter was posted.

(4) Unless the contrary is proved, payment is to be regarded as made at the time at which the letter would be delivered in the ordinary course of post.

(5) Sub-paragraph (2) is not to be read as preventing the payment of a penalty by other means.

(6) A letter is properly addressed for the purposes of sub-paragraph (2) if it is addressed in accordance with the requirements specified in the fixed penalty notice.

Effect of payment

9 If the fixed penalty specified in a fixed penalty notice is paid within the period specified in that notice, no proceedings for the offence to which that notice relates may be brought against the alleged offender.

Service of statement and proof of service

10 (1) This paragraph applies to proceedings for a relevant offence.

(2) A certificate by OFCOM--

(a) that a copy of a statement by a person authorised by OFCOM was included in, or given with, a fixed penalty notice,

(b) that the notice was a notice with respect to the relevant offence, and

is evidence that a copy of the statement was served on the alleged offender by delivery to him on that date.

(3) The statement is to be treated as properly served for the purposes of--

(a) section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written statement), and

(b) section 1 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c. 28 (N.I.)) (which contains corresponding provision for Northern Ireland),

even though the manner of service is not authorised by subsection (8) of either of those sections.

(4) Sub-paragraphs (5) and (6) apply to any proceedings in which service of a statement is proved by a certificate under this paragraph.

(5) For the purposes of--

(a) section 9(2)(c) of the Criminal Justice Act 1967 (copy of statement to be tendered in evidence to be served before hearing on other parties to the proceedings by or on behalf of the party proposing to tender it), and

(b) section 1(2)(c) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (which contains corresponding provision for Northern Ireland),

service of the statement is to be taken to have been effected by or on behalf of the prosecutor.

(6) If the alleged offender makes a request to be tried--

(a) section 9(2)(d) of the Criminal Justice Act 1967 (time for objection), and

(b) section 1(2)(d) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (which contains corresponding provision for Northern Ireland),

are to apply with the substitution, for the reference to seven days from the service of the copy of the statement, of a reference to seven days beginning with the day after the one on which the request to be tried was made.

(7) This paragraph does not extend to Scotland.

Certificate about payment

11 In any proceedings, a certificate--

(a) that payment of a fixed penalty was, or was not, received by the relevant officer specified in the fixed penalty notice by a date specified in the certificate, or

(b) that a letter containing an amount sent by post in payment of a fixed penalty was marked as posted on a date specified in the certificate,

shall, if the certificate purports to be signed by that officer, be evidence (and in Scotland sufficient evidence) of the facts stated.

Regulations

12 The Secretary of State may by regulations make provision as to any matter incidental to the operation of this Schedule, and in particular--

(a) for prescribing any information or further information to be provided in a notice, notification, certificate or receipt;

(b) for prescribing the duties of relevant officers and the information to be supplied to and by them.

Interpretation

13 In this Schedule "relevant officer" means--

(a) in relation to England and Wales, the justices' chief executive;

(b) in relation to Scotland, the clerk of court; and

Section 182

SCHEDULE 7 Seizure and forfeiture of apparatus

Application of Schedule

1 (1) This Schedule applies to restricted apparatus seized, after the coming into force of this Schedule--

(a) in pursuance of a warrant granted under section 15(1) of the Wireless Telegraphy Act 1949 (c. 54); or

(b) in the exercise of the power conferred by section 79(3) of the Telecommunications Act 1984 (c. 12).

(2) Apparatus is restricted apparatus for the purposes of this Schedule if custody or control of apparatus of any class or description to which it belongs is for the time being restricted by an order under section 7 of the Wireless Telegraphy Act 1967 (c. 72).

Notice of seizure

2 (1) OFCOM must give notice of the seizure of the restricted apparatus to every person who, to their knowledge, was at the time of the seizure the owner or one of the owners of the apparatus.

(2) The notice must set out the grounds of the seizure.

(3) Where there is no proper address for the purposes of the service of a notice under sub-paragraph (1) in a manner authorised by section 394, the requirements of that sub-paragraph shall be satisfied by the publication of a notice of the seizure (according to the part of the United Kingdom where the seizure took place) in the London, Edinburgh or Belfast Gazette.

(4) Apparatus may be condemned or taken to have been condemned under this Schedule only if the requirements of this paragraph have been complied with in the case of that apparatus.

Notice of claim

3 A person claiming that the restricted apparatus is not liable to forfeiture must give written notice of his claim to OFCOM.

4 (1) A notice of claim must be given within one month after the day of the giving of the notice of seizure.

(2) A notice of claim must specify--

(a) the name and address of the claimant; and

(b) in the case of a claimant who is outside the United Kingdom, the name and address of a solicitor in the United Kingdom who is authorised to accept service of process and to act on behalf of the claimant.

(3) Service of process upon a solicitor so specified is to be taken to be proper service upon the claimant.

Condemnation

5 The restricted apparatus is to be taken to have been duly condemned as forfeited if--

(a) by the end of the period for the giving of a notice of claim in respect of the apparatus, no such notice has been given to OFCOM; or

(b) a notice of claim is given which does not comply with the requirements of paragraphs 3 and 4.

6 (1) Where a notice of claim in respect of the restricted apparatus is duly given in accordance with paragraphs 3 and 4, OFCOM may take proceedings for the condemnation of that apparatus by the court.

(2) In any such proceedings--

(a) if the court finds that the apparatus was liable to forfeiture at the time of seizure, it must condemn the apparatus as forfeited unless cause is shown why it should not; and

(b) if the court finds that the apparatus was not liable to forfeiture at that time, or cause is shown why it should not be forfeited, the court must order the return of the apparatus to the person appearing to the court to be entitled to it.

(3) If OFCOM decide not to take proceedings for condemnation in a case in which a notice of claim has been so given, they must return the apparatus to the person appearing to them to be the owner of the apparatus, or to one of the persons appearing to them to be the owners of it.

(4) Apparatus required to be returned in accordance with sub-paragraph (3) must be returned as soon as reasonably practicable after the decision not to take proceedings for condemnation.

(5) OFCOM's decision whether to take such proceedings must be taken as soon as reasonably practicable after the receipt of the notice of claim.

7 Where the restricted apparatus is condemned or taken to have been condemned as forfeited, the forfeiture is to have effect as from the time of the seizure.

Proceedings for condemnation by court

8 Proceedings for condemnation are civil proceedings and may be instituted--

(a) in England or Wales, either in the High Court or in a magistrates' court;

(b) in Scotland, either in the Court of Session or in the sheriff court;

9 Proceedings for the condemnation of restricted apparatus instituted in a magistrates' court in England or Wales, in the sheriff court in Scotland or in a court of summary jurisdiction in Northern Ireland may be so instituted--

(a) in any such court having jurisdiction in a place where an offence under section 7 of the Wireless Telegraphy Act 1967 (c. 72) involving that apparatus was committed;

(b) in any such court having jurisdiction in proceedings for such an offence;

(c) in any such court having jurisdiction in the place where the claimant resides or, if the claimant has specified a solicitor under paragraph 4, in the place where that solicitor has his office; or

(d) in any such court having jurisdiction in the place where that apparatus was seized or to which it was first brought after being seized.

10 (1) In proceedings for condemnation that are instituted in England and Wales or Northern Ireland, the claimant or his solicitor must make his oath that the seized apparatus was, or was to the best of his knowledge and belief, the property of the claimant at the time of the seizure.

(2) In proceedings for condemnation instituted in the High Court--

(a) the court may require the claimant to give such security for the costs of the proceedings as may be determined by the court; and

(b) the claimant must comply with any such requirement.

(3) If a requirement of this paragraph is not complied with, the court shall give judgment for OFCOM.

11 (1) In the case of proceedings for condemnation instituted in a magistrates' court in England or Wales, either party may appeal against the decision of that court to the Crown Court.

(2) In the case of proceedings for condemnation instituted in a court of summary jurisdiction in Northern Ireland, either party may appeal against the decision of that court to the county court.

(3) This paragraph does not affect any right to require the statement of a case for the opinion of the High Court.

12 Where an appeal has been made (whether by case stated or otherwise) against the decision of the court in proceedings for the condemnation of restricted apparatus, that apparatus is to be left with OFCOM pending the final determination of the matter.

Disposal of unclaimed property

13 (1) This paragraph applies where a requirement is imposed by or under this Schedule for apparatus to be returned to a person.

(2) If the apparatus is still in OFCOM's possession after the end of the period of twelve months beginning with the day after the requirement to return it arose, OFCOM may dispose of it in any manner they think fit.

(3) OFCOM may exercise their power under this paragraph to dispose of apparatus only if it is not practicable at the time when the power is exercised to dispose of the apparatus by returning it immediately to the person to whom it is required to be returned.

Provisions as to proof

14 In proceedings arising out of the seizure of restricted apparatus, the fact, form and manner of the seizure is to be taken, without further evidence and unless the contrary is shown, to have been as set forth in the process.

15 In any proceedings, the condemnation by a court of restricted apparatus as forfeited may be proved by the production of either--

(a) the order or certificate of condemnation; or

(b) a certified copy of the order purporting to be signed by an officer of the court by which the order or certificate was made or granted.

Special provisions as to certain claimants

16 (1) This paragraph applies for the purposes of a claim to the restricted apparatus, and of proceedings for its condemnation.

(2) Where, at the time of the seizure, the apparatus is--

(a) the property of a body corporate,

(b) the property of two or more partners, or

the oath required by paragraph 10 to be taken by the claimant, and any other thing required by this Schedule or by rules of court to be done by the owner of the apparatus, may be done by a person falling within sub-paragraph (3) or by a person authorised to act on his behalf.

(3) The persons falling within this sub-paragraph are--

(a) where the owner is a body corporate, the secretary or some duly authorised officer of that body;

(b) where the owners are in partnership, any one or more of the owners;

(c) where there are more than five owners and they are not in partnership, any two or more of the owners acting on behalf of themselves and any of their co-owners who are not acting on their own behalf.

Saving for owner's rights

17 Neither the imposition of a requirement by or under this Schedule to return apparatus to a person nor the return of apparatus to a person in accordance with such a requirement affects--

(a) the rights in relation to that apparatus of any other person; or

(b) the right of any other person to enforce his rights against the person to whom it is returned.

Section 192

SCHEDULE 8 Decisions not subject to appeal

Prosecutions and civil proceedings

1 A decision to institute, bring or carry on any criminal or civil proceedings.

2 A decision (other than one under section 119) to take preliminary steps for the purpose of enabling any such proceedings to be instituted.

This Act

3 A decision relating to the making or revision of a statement under section 38.

4 A decision required to be published in a notification under section 44(4).

5 A decision given effect to by an order under section 55.

6 A decision given effect to by regulations under section 66.

7 A decision given effect to by regulations under section 71.

8 A decision required to be published in a notification under section 108(4).

9 A decision given effect to by an order under section 122.

10 A decision relating to the making or revision of a statement under section 131.

11 A decision given effect to by an order under section 134(6).

12 A decision relating to the making or revision of a statement under section 145.

13 A decision relating to the publication of the United Kingdom Plan for Frequency Authorisation.

14 A decision in exercise of the functions conferred on OFCOM by section 152 as to--

(a) the services, records and advice to be provided, maintained or given by them;

(b) the research to be carried out or the arrangements made for carrying it out; or

15 A decision under section 155.

16 A decision under section 158.

17 A decision given effect to by regulations under section 159.

18 A decision given effect to by regulations under section 162.

19 A decision given effect to by an order under section 164.

20 A decision given effect to by regulations under section 168.

21 A decision given effect to by regulations under section 170 and any decision under any such regulations.

22 A decision to impose a penalty under section 175(1).

23 A decision relating to the making or revision of a statement under section 177.

24 A decision given effect to by regulations under paragraph 1 of Schedule 5.

25 A decision under any provision of Schedule 6.

26 A decision under any provision of Schedule 7.

Wireless Telegraphy Act 1949

27 A decision given effect to by regulations under the proviso to section 1(1) of the Wireless Telegraphy Act 1949 (c. 54).

28 A decision given effect to by regulations under section 1D(3) of that Act.

29 A decision given effect to by regulations under section 3 of that Act.

30 A decision given effect to by regulations under section 10 of that Act.

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