Digital Economy Bill (HC Bill 45)

(a) to provide OFCOM with any information that was not required
to accompany the application for allocation of the numbers
when it was made but which is now required to accompany
such applications;

(b) 5to inform OFCOM of any changes to information that
accompanied the application for allocation of the numbers or
that has been provided in accordance with a condition set under
paragraph (a);

(c) to inform OFCOM of any proposal by the provider to cease to
10provide an electronic communications network or electronic
communications service;

(d) to inform OFCOM of any circumstances or events of a
description specified in the condition.””

72 Provision of information to OFCOM

(1) 15Section 135 (information required for purposes of functions) is amended as
follows.

(2) For subsection (1) substitute—

“(1) OFCOM may require a person falling within subsection (2) to provide
them with all such information as they consider necessary for the
20purpose of carrying out their functions under—

(a) section 14(1);

(b) section 26, so far as relating to matters in relation to which they
have functions under this Chapter; or

(c) this Chapter.””

(3) 25In the heading for “Chapter 1” substitute “certain OFCOM”.

73 Information required from communications providers

(1) The Communications Act 2003 is amended as follows.

(2) After section 137 insert—

“137A Information required from communications providers

(1) 30OFCOM may require a communications provider—

(a) to publish any information held by the provider, or

(b) to provide any such information to OFCOM for publication by
OFCOM.

(2) The information that OFCOM may require the communications
35provider to publish or provide under subsection (1) includes
information that OFCOM require the provider to produce, generate or
obtain for that purpose.

(3) For that purpose OFCOM may, in particular, require the
communications provider—

(a) 40to collect or retain any information that the provider would not
otherwise collect or retain,

(b) to process, collate or analyse any information held by the
provider, or

(c) to answer any questions.

(4) The power conferred by this section may be exercised only—

(a) in connection with OFCOM’s functions—

(i) under Part 1, so far as relating to electronic
communications, or

(ii) 5under this Chapter, and

(b) in such a way as is proportionate to the use to which the
information is to be put in connection with those functions.

(5) The power conferred by this section is to be exercised by a demand,
contained in a notice served on the communications provider, that—

(a) 10describes the information required to be published or provided,
and

(b) sets out OFCOM’s reasons for requiring it to be published or
provided.

(6) Before serving the notice on the communications provider, OFCOM
15must—

(a) serve a draft of the notice on the provider and inform the
provider of the period for making representations, and

(b) consider any representations made by the provider within that
period which—

(i) 20identify restrictions on the disclosure or publication of
information that would or might prevent the provider
from complying with the notice, or

(ii) otherwise relate to the practicability of complying with
it.

(7) 25The communications provider must publish or provide the information
required by the notice in such manner and form, in accordance with
such other requirements, and within such reasonable period, as may be
specified by OFCOM.

(8) Where OFCOM publish anything provided to them pursuant to
30subsection (1)(b) they must do so in such manner and form as they
consider appropriate.

137B Section 137A: confidential matters

(1) In exercising functions under section 137A, OFCOM must have regard
to the need to exclude from publication, so far as that is practicable, the
35matters which are confidential in accordance with subsections (2) and
(3).

(2) A matter is confidential under this subsection if—

(a) it relates specifically to the affairs of a particular body; and

(b) publication of that matter would or might, in OFCOM’s
40opinion, seriously and prejudicially affect the interests of that
body.

(3) A matter is confidential under this subsection if—

(a) it relates to the private affairs of an individual; and

(b) publication of that matter would or might, in OFCOM’s
45opinion, seriously and prejudicially affect the interests of that
individual.””

(3) In section 138 (notification of contravention of information requirements)—

(a) in subsection (1), for “135 or 136” substitute “135, 136 or 137A”, and

(b) for subsection (2)(d) substitute—

“(d) specifies what the person must do in order to comply
with the requirement;”.”

(4) 5In section 140 (suspending service provision for information contraventions),
in subsections (1)(a) and (7), for “135 and 136, or either” substitute “135, 136 and
137A, or any”.

(5) In section 144 (offences in connection with information requirements)—

(a) in subsection (1), after “or 136” insert “, or who contravenes a
10requirement imposed under section 137A”,

(b) in subsection (2)(b), for “provide the required information” substitute
“comply with the requirement”,

(c) in subsection (3)—

(i) for “135 or 136” substitute “135, 136 or 137A”, and

(ii) 15after “provides” (in both places) insert “or publishes”, and

(d) in subsection (5), for paragraph (b) substitute—

“(b) a confirmation decision has been given under section
139A in respect of that requirement and the period
allowed under that decision has expired without the
20requirement have been complied with; and”.”

(6) In section 145(1) (statement of policy on information gathering)—

(a) in paragraph (a), for “135 to 136” substitute “135, 136 and 137A”, and

(b) in paragraph (b), for “those sections” substitute “sections 135 and 136”.

(7) In section 393(6)(a) (general restrictions on disclosure of information), before
25“or 390” insert “, 137A”.

Appeals

74 Appeals from decisions of OFCOM and others: standard of review

(1) The Communications Act 2003 is amended as follows.

(2) In section 193(2) (reference of price control matters to the CMA), for “is to be
30performed” substitute “, having regard to the principles to be applied by the
Tribunal under section 194A(2), is to be performed”.

(3) In subsection (6) of that section omit “on the merits under section 195”.

(4) Before section 195 (decisions of the Tribunal) insert—

“194A Disposal of appeals under section 192 (other than against certain
35decisions of Secretary of State)

(1) This section applies to an appeal against a decision referred to in section
192(1)(a), (b), (c), (d)(iii) or (e).

(2) The Tribunal must decide the appeal, by reference to the grounds of
appeal set out in the notice of appeal, by applying the same principles
40as would be applied by a court on an application for judicial review.

(3) The Tribunal may—

(a) dismiss the appeal or quash the whole or part of the decision to
which it relates; and

(b) where it quashes the whole or part of that decision, remit the
matter back to the decision-maker with a direction to reconsider
5and make a new decision in accordance with the ruling of the
Tribunal.

(4) The decision-maker must comply with a direction under subsection
(3)(b).

(5) In its application to a decision of the Tribunal under this section,
10paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (exclusion of
commercial information from documents recording Tribunal
decisions) is to have effect as if, for the reference to the undertaking to
which commercial information relates, there were substituted a
reference to any person to whom it relates.

(6) 15In this section “the decision-maker” means the person who made the
decision appealed against.””

(5) Section 195 (decisions of the Tribunal) is amended as follows.

(6) For subsection (1) substitute—

“(1) This section applies to an appeal against a decision referred to in section
20192(1)(d)(i), (ii), (iia) or (iv).””

(7) Until section 20(2) of the Digital Economy Act 2010 comes into force, the
amendment made by subsection (6) has effect with the omission of “, (iia)”.

(8) In subsections (3) to (6), for “the decision-maker” in each place substitute “the
Secretary of State”.

(9) 25Omit subsection (9).

(10) For the title substitute “Disposal of appeals under section 192 against certain
decisions of Secretary of State”.

(11) In section 317 (exercise of Broadcasting Act powers for a competition purpose),
for subsection (7) substitute—

“(7) 30Sections 192(3) to (5), (7) and (8), 194A and 196 apply in the case of an
appeal under subsection (6) as they apply in the case of an appeal under
section 192(2).””

(12) The amendments made by this section do not apply in relation to appeals
against decisions made before this section comes into force.

35Regulation and functions of BBC

75 Functions of OFCOM in relation to the BBC

(1) Section 198 of the Communications Act 2003 (functions of OFCOM in relation
to the BBC) is amended as follows.

(2) In subsection (1) for the words after paragraph (b) substitute—

40““to regulate the BBC.””

(3) After subsection (2) insert—

“(2A) The BBC Charter and Agreement may in particular confer on OFCOM,
as a power they are to have by virtue of subsection (2)(a), power to
require any person to provide information for the purposes of the
5carrying out by OFCOM of their function under subsection (1).””

(4) Omit subsection (9).

(5) The following cease to have effect—

(a) in Part 3 of Schedule 1 to the House of Commons Disqualification Act
1975 (offices disqualifying for membership), the entry relating to a
10chairman, vice-chairman or ordinary member of the BBC Trust);

(b) section 90A of the Scotland Act 1998 (BBC Trust member for Scotland);

(c) section 16 of the Scotland Act 2012 (which inserts section 90A of the
1998 Act);

(d) in section 77(2)(d) of the Deregulation Act 2015 (review of sanctions in
15relation to TV licensing), “and be presented to the BBC Trust”.

(6) In this section “the BBC Charter and Agreement” has the meaning given by
section 362(1) of the Communications Act 2003.

76 TV licence fee concessions by reference to age

(1) The Communications Act 2003 is amended as follows.

(2) 20Section 365 (TV licence fees) is amended as follows.

(3) After subsection (1) insert—

“(1A) Liability to pay a sum under regulations under subsection (1) is subject
to any concession applying in accordance with a determination by the
BBC under section 365A.””

(4) 25In subsection (5) for “The reference to a concession in subsection (4)” substitute
“A reference in this section to a concession”.

(5) After subsection (5) insert—

“(5A) Regulations under this section may not provide for a concession in
favour of a person by reference to age.””

(6) 30After section 365 insert—

“365A TV licence fee concessions by reference to age

(1) For the purposes of section 365(1A) the BBC may determine that a
concession in specified terms is to apply, on the satisfaction of specified
requirements, to persons who are of or above a specified age at the
35relevant time.

(2) In relation to any person the age specified may be 65 or higher, but may
not be a lower age.

(3) The relevant time is the end of the month in which the TV licence is
issued.

(4) 40A determination under this section may include provision for the
means by which an entitlement to a concession must be established.

(5) A determination under this section—

(a) may make different provision for different cases (including
different provision in respect of different areas);

(b) may include transitional provision.

(6) 5A determination under this section—

(a) must be in writing;

(b) must be published in whatever way the BBC considers
appropriate.

(7) The BBC—

(a) 10may vary a determination by a further determination under this
section;

(b) may determine that a concession is to cease to apply (and
accordingly revoke a determination under this section).

(8) Before making, varying or revoking a determination the BBC must
15consult any persons it considers appropriate.””

Direct marketing code

77 Direct marketing code

(1) The Data Protection Act 1998 is amended as follows.

(2) After section 52A insert—

“52AA 20 Direct marketing code

(1) The Commissioner must prepare a code of practice which contains—

(a) practical guidance in relation to the carrying out of direct
marketing in accordance with the requirements of this Act and
the Privacy and Electronic Communications (EC Directive)
25Regulations 2003 (S.I. 2003/2426S.I. 2003/2426), and

(b) such other guidance as the Commissioner considers
appropriate to promote good practice in direct marketing.

(2) For this purpose “good practice” means such practice in direct
marketing as appears to the Commissioner to be desirable having
30regard to the interests of data subjects and others, and includes (but is
not limited to) compliance with the requirements mentioned in
subsection (1)(a).

(3) Before a code is prepared under this section, the Commissioner must
consult such of the following as the Commissioner considers
35appropriate—

(a) trade associations (within the meaning of section 51);

(b) data subjects;

(c) persons who appear to the Commissioner to represent the
interests of data subjects.

(4) 40In this section “direct marketing” has the meaning given by section
11(3).””

(3) In section 51(5A) (general duties of Commissioner) at the end insert “or section
52AA (direct marketing code)”.

(4) In the title of each of sections 52B to 52E for “data-sharing code” substitute
“data-sharing and direct marketing codes”.

(5) In section 52B (procedure for making code)—

(a) in subsection (1) after “52A” insert “or 52AA”;

(b) 5in subsection (6) omit “under section 52A”.

(6) In section 52C (alteration or replacement of code)—

(a) in subsection (1)(a) after “data-sharing code” insert “and the direct
marketing code”;

(b) in subsection (1)(b) for “may prepare an alteration to that code”
10substitute “in either case, may prepare an alteration to the code”;

(c) in subsection (4) after “52A” insert “or 52AA”;

(d) in subsection (5) for “means the code” substitute “and “the direct
marketing code” mean the codes respectively prepared under sections
52A and 52AA and”.

(7) 15In section 52D (publication of code) in subsection (1) for “the code” substitute
“any code”.

(8) In section 52E (effect of code)—

(a) in subsection (1) after “data-sharing code” insert “or the direct
marketing code”;

(b) 20in subsection (2) for “The data-sharing code is” substitute “Those codes
are”;

(c) in subsection (3) for “the data-sharing code” substitute “those codes”;

(d) in subsection (3)(a) after “Act” insert “or the Privacy and Electronic
Communications (EC Directive) Regulations 2003 (S.I. 2003/2426S.I. 2003/2426)”;

(e) 25in subsection (3)(c) after “Act” insert “or those Regulations”;

(f) in subsection (4) for “means the code” substitute “and “the direct
marketing code” mean the codes respectively prepared under sections
52A and 52AA and”.

Miscellaneous

78 30OFCOM and Northern Ireland

(1) Section 1 of the Office of Communications Act 2002 (the Office of
Communications) is amended as follows.

(2) In subsection (3), before paragraph (b) insert—

“(ac) a member appointed by the Minister for the Economy in
35Northern Ireland;”.”

(3) Before subsection (4) insert—

“(3C) Before appointing a member under subsection (3)(ac) the Minister for
the Economy must consult the Secretary of State.””

(4) In subsection (5) in the words before paragraph (a), before “and (b),” insert
40“, (ac)”.

(5) At the end insert—

“(13) Paragraphs 1 and 2 of the Schedule apply in relation to the appointment
made under subsection (3)(ac) as if—

(a) any reference to the Secretary of State were to the Minister for
the Economy, and

(b) at the end of paragraph 2 there were inserted—

“(9) Before the Minister for the Economy removes a person from
5office the Minister must consult the Secretary of State.””””

(6) The Schedule to the Office of Communications Act 2002 is amended as follows.

(7) In paragraph 11 (accounts and audit)—

(a) in sub-paragraph (3)(c) at the end insert “and the Minister for the
Economy in Northern Ireland”;

(b) 10at the end insert—

“(6) The Minister for the Economy in Northern Ireland shall lay a
copy of the statement and report sent to the Minister under
sub-paragraph (3) before the Northern Ireland Assembly.””

(8) In paragraph 12 (annual report)—

(a) 15in sub-paragraph (1) before “a report” insert “and the Minister for the
Economy in Northern Ireland”;

(b) at the end insert—

“(6) The Minister for the Economy in Northern Ireland shall lay a
copy of every report sent to the Minister under this
20paragraph before the Northern Ireland Assembly.””

(9) The following provisions of section 44 of the Northern Ireland Act 1998 (power
of Assembly to call for witnesses and documents: limitation by reference to
transferred matters etc) do not apply in relation to requirements imposed in
connection with the discharge of the functions of the Office of Communications
25in relation to Northern Ireland—

(a) the words after paragraph (b) in subsection (1);

(b) subsections (2), (3) and (5)(b).

79 Retention by OFCOM of amounts paid under Wireless Telegraphy Act 2006

(1) The Communications Act 2003 is amended as follows.

(2) 30In section 400(4)(c) (destination of fees and penalties: account for financial
year), for the words from “of principles” to “subsection (4)” substitute “under
section 401 for meeting the costs set out in the statement in accordance with
subsection (1)(b)”.

(3) In section 401 (retention of amounts by OFCOM), for subsection (1)
35substitute—

“(1) OFCOM have power to make a statement setting out—

(a) the principles under which they may retain any or all of the
amounts paid to them—

(i) in pursuance of obligations imposed by or under
40Chapter 1 or 2 of Part 2 of the Wireless Telegraphy Act
2006;

(ii) in respect of fees charged under section 53D of that Act,
and

(b) the costs in respect of which the amounts may be retained
(which may include costs other than those incurred in the
exercise of their functions under those provisions).””

(4) In subsection (2) of that section, omit “of principles”.

(5) 5For subsections (3) to (5) of that section substitute—

“(3) The provision contained in a statement made by OFCOM under this
section must be such as appears to them likely to secure, on the basis of
such estimates of the likely costs as it is practicable to make, that the
amounts retained by OFCOM are objectively justifiable and
10proportionate to the costs in respect of which they are retained.””

(6) In subsection (6) of that section, omit “the principles contained in”.

(7) In subsection (7) of that section, for “of carrying out the functions mentioned in
subsection (4) of this section” substitute “set out in the statement in accordance
with subsection (1)(b)”.

(8) 15In subsection (8) of that section, omit “of principles”.

(9) In subsection (10) of that section, after “Treasury” insert “and the Secretary of
State”.

(10) For the heading to that section substitute “Retention by OFCOM of amounts
paid under Wireless Telegraphy Act 2006”.

80 20International recognition of satellite frequency assignments: power of
OFCOM to charge fees

(1) The Communications Act 2003 is amended as follows.

(2) After section 28 (general power of OFCOM to charge for services), and before
the cross-heading following that section, insert—

“28A 25International recognition of satellite frequency assignments: power to
charge fees

(1) This section applies where functions conferred on OFCOM under
section 22 include functions of the administration of the United
Kingdom under the ITU Radio Regulations.

(2) 30OFCOM may require any person to pay them a fee for doing satellite
filing work at the request of that person.

(3) In this section “satellite filing work” means anything connected with
obtaining or maintaining international recognition under the ITU
Radio Regulations of assignments (or changes in assignments) of radio
35frequencies to stations in satellite systems or satellite networks.

(4) OFCOM may vary from time to time the amount of any fee set by them
under this section.

(5) OFCOM may not require a person to pay a fee under this section unless
they have taken such steps as they consider appropriate to bring the
40fact that they charge the fee, and the amount of the fee, to the attention
of those persons who, in their opinion, are likely to be required to pay it.

(6) As soon as reasonably practicable after the end of each reporting year,
OFCOM must publish a statement setting out—

(a) the aggregate amount of the fees charged under this section that
have been received by OFCOM during that year;

(b) 5the aggregate amount of the fees charged under this section
during that year which remain outstanding and are likely to be
paid or recovered; and

(c) the total cost to OFCOM of doing the requested satellite filing
work they have done during that year.

(7) 10If the total of the amounts set out in a statement under subsection (6)(a)
and (b) exceeds the total cost set out under subsection (6)(c), OFCOM
must take this into account with a view to securing that the aggregate
amount of fees charged under this section in the following reporting
year does not exceed the likely total cost to them of doing requested
15satellite filing work during that year.

(8) In this section—

• “administration”, “assignment” (of a radio frequency), “station”,
  “satellite system” and “satellite network” have the same
  meanings as in the ITU Radio Regulations;

• 20“reporting year” means—

  (a)

  the period beginning with the coming into force of this
  section and ending with the next 31st March, or

  (b)

  any subsequent period of twelve months beginning
  with 1st April;

• 25“the ITU Radio Regulations” means the radio regulations of the
  International Telecommunication Union.””

(3) In section 38 (annual administrative charge), after subsection (11) insert—

“(11A) For the purposes of this section, the cost to OFCOM of carrying out the
functions mentioned in subsection (5) does not include the cost to
30OFCOM of doing anything for which they charge a fee under section
28A.””

(4) Section 28A(2) and (6)(c) of the Communications Act 2003, inserted by
subsection (2), does not apply to any satellite filing work if OFCOM received
the request to do that work before the coming into force of that section.

35Part 7 General

81 Financial provisions

The following are to be paid out of money provided by Parliament—

(a) any expenditure incurred under or by virtue of this Act by a Minister of the
40Crown, a person holding office under Her Majesty or a government
department, and

(b) any increase attributable to this Act in the sums payable under any other Act
out of money so provided.