Digital Economy Bill (HC Bill 87)

Digital Economy BillPage 70

(c) be prohibited by Part 1 of the Regulation of Investigatory
Powers Act 2000, or

(d) breach any other restriction on the disclosure of information
(however imposed).

(11) 5Nothing in this section affects the scope of the powers in sections 51 to
53.”

Part 6 Miscellaneous

OFCOM: reports etc

69 10OFCOM reports on infrastructure etc

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

(2) After section 134A insert—

134AA Additional OFCOM reports on infrastructure etc

(1) OFCOM may prepare reports dealing with—

(a) 15any of the electronic communications network matters listed in
section 134B(1);

(b) any of the electronic communications services matters listed in
section 134B(2).

(2) OFCOM may publish a report under this section in such manner as
20they consider appropriate for bringing it to the attention of persons
who, in their opinion, are likely to have an interest in it.

(3) Before publishing a report under this section OFCOM must consider—

(a) whether any of the information to be contained in it is
information that they could refuse to disclose in response to a
25request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be excluded from the
report.

(4) This section does not affect OFCOM’s duty to prepare reports under
section 134A.

134AB 30 Publication of information required for purpose of preparing reports

(1) OFCOM may publish—

(a) any relevant section 135 information, and

(b) any information derived from relevant section 135 information.

(2) Before publishing information under this section OFCOM must
35consider—

(a) whether any of the information that they propose to publish is
information that they could refuse to disclose in response to a
request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be published.

Digital Economy BillPage 71

(3) In this section “relevant section 135 information” means information
required by OFCOM under section 135 for the purpose of preparing a
report under section 134A or 134AA.”

(3) In section 134B (networks and services matters)—

(a) 5in subsections (1) and (2), for “section 134A” substitute “sections 134A
and 134AA”, and

(b) in subsection (4), after “134A” insert “or 134AA”.

(4) In section 135(3) (information required for purposes of OFCOM functions),
after paragraph (ic) insert—

(ica) 10preparing a report under section 134AA;”.

(5) In section 393(6)(a) (general restrictions on disclosure of information), after
“26” insert “, 134AB”.

70 Comparative overviews of quality and prices

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

(2) 15After section 134C insert—

“Comparative overviews
134D Comparative overviews of quality and prices

(1) OFCOM may, in the interest of the end-users of public electronic
communications services, carry out comparative overviews of the
20quality and prices of such services.

(2) OFCOM may publish a comparative overview carried out under this
section in such manner as they consider appropriate for bringing it to
the attention of persons who, in their opinion, are likely to have an
interest in it.”

(3) 25In section 136 (information required for related purposes)—

(a) in subsection (1) for “specified in subsection (2)” substitute “of carrying
out comparative overviews under section 134D”, and

(b) omit subsection (2).

(4) In section 393(6) (general restrictions on disclosure of information), after
30paragraph (b) insert—

(ba) limits the matters that may be published as part of a
comparative overview carried out by OFCOM under section
134D;”.

OFCOM: information

71 35Conditions about allocation of telephone numbers

In section 58 of the Communications Act 2003 (conditions about allocation and
adoption of telephone numbers), after subsection (2) insert—

(2A) General conditions may also require a communications provider to
whom telephone numbers have been allocated—

Digital Economy BillPage 72

(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 of the Communications Act 2003 (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.

Digital Economy BillPage 73

(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)—

Digital Economy BillPage 74

(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—

Digital Economy BillPage 75

(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.”

Digital Economy BillPage 76

(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 (4)(a) after “concession” insert “provided for by the regulations”.

(5) In subsection (5) for “The reference to a concession in subsection (4)” substitute
“A reference in this section or section 365A to a concession”.

(6) After subsection (5) insert—

(5A) Regulations under this section may not provide for a concession that
30requires the person to whom the TV licence is issued, or another
person, to be of or above a specified age, unless—

(a) the age specified is below 65, and

(b) the requirement is not satisfied if the person concerned is 65 or
over at the end of the month in which the licence is issued.

(5B) 35Subsection (5A) does not apply to—

(a) the concession provided for by regulation 3(d) of and Schedule
4 to the Communications (Television Licensing) Regulations
2004 (S.I. 2004/692S.I. 2004/692) (accommodation for residential care), or

(b) a concession in substantially the same form.”

Digital Economy BillPage 77

(7) After 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.

(2) 5Any concession under this section must include a requirement that the
person to whom the TV licence is issued, or another person, is of or
above a specified age, which must be 65 or higher, at or before the end
of the month in which the licence is issued.

(3) A determination under this section—

(a) 10may in particular provide for a concession to apply, subject to
subsection (2), in circumstances where a concession has ceased
to have effect by virtue of section 365(5A), but

(b) may not provide for a concession to apply in the same
circumstances as a concession within section 365(5B).

(4) 15A 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) 20may include transitional provision.

(6) A determination under this section—

(a) must be in writing;

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

(7) 25The BBC

(a) may 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) 30Before making, varying or revoking a determination the BBC must
consult any persons it considers appropriate.”

OFCOM powers relating to criminal content etc

77 Suspension of radio licences for inciting crime or disorder

(1) In Chapter 2 of Part 3 of the Broadcasting Act 1990 (sound broadcasting
35services), for section 111B (power to suspend licence to provide satellite
service) substitute—

111B Suspension of licences for inciting crime or disorder

(1) OFCOM must serve a notice under subsection (2) on the holder of a
licence granted under this Chapter if they are satisfied that—

(a) 40the licence holder has included in the licensed service one or
more programmes containing material likely to encourage or
incite the commission of crime or to lead to disorder,

Digital Economy BillPage 78

(b) in doing so the licence holder has failed to comply with a
condition included in the licence in compliance with section 263
of the Communications Act 2003, and

(c) the failure would justify the revocation of the licence.

(2) 5A notice under this subsection must—

(a) state that OFCOM are satisfied as mentioned in subsection (1),

(b) specify the respects in which, in their opinion, the licence holder
has failed to comply with the condition mentioned there,

(c) state that OFCOM may revoke the licence after the end of the
10period of 21 days beginning with the day on which the notice is
served on the licence holder, and

(d) inform the licence holder of the right to make representations to
OFCOM in that period about the matters that appear to
OFCOM to provide grounds for revoking the licence.

(3) 15The effect of a notice under subsection (2) is to suspend the licence from
the time when the notice is served on the licence holder until either—

(a) the revocation of the licence takes effect, or

(b) OFCOM decide not to revoke the licence.

(4) If, after considering any representations made to them by the licence
20holder in the 21 day period mentioned in subsection (2)(c), OFCOM are
satisfied that it is necessary in the public interest to revoke the licence,
they must serve on the licence holder a notice revoking the licence.

(5) The revocation of a licence by a notice under subsection (4) takes effect
from whatever time is specified in the notice.

(6) 25That time must not be earlier than the end of the period of 28 days
beginning with the day on which the notice under subsection (4) is
served on the licence holder.

(7) Section 111 does not apply to the revocation of a licence under this
section.”

(2) 30In section 62(10) of the Broadcasting Act 1996 (application of sections 109 and
111 of the 1990 Act to digital sound programme services) for the words from
“section 109” to “1990 Act” substitute “sections 109, 111 and 111B of the 1990
Act (enforcement)”.

(3) In section 250(3) of the Communications Act 2003 (application of sections 109
35to 111A of the 1990 Act to radio licensable content services) for “111A”
substitute “111B”.

78 Digital additional services: seriously harmful extrinsic material

After section 24 of the Broadcasting Act 1996 (digital additional services)
insert—

24A 40Duty to prevent access to seriously harmful extrinsic material

(1) In carrying out their functions, OFCOM must do all that they consider
appropriate to prevent digital additional services from enabling
members of the public to access seriously harmful extrinsic material.

Digital Economy BillPage 79

(2) “Seriously harmful extrinsic material”, in relation to a digital additional
service, means material that—

(a) is not included in the service, and

(b) appears to OFCOM

(i) 5to have the potential to cause serious harm, or

(ii) to be likely to encourage or incite the commission of
crime or lead to disorder.”

Direct marketing code

79 Direct marketing code

(1) 10The Data Protection Act 1998 is amended as follows.

(2) After section 52A insert—

52AA 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
15marketing in accordance with the requirements of this Act and
the Privacy and Electronic Communications (EC Directive)
Regulations 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) 20For this purpose “good practice” means such practice in direct
marketing as appears to the Commissioner to be desirable having
regard 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) 25Before a code is prepared under this section, the Commissioner must
consult such of the following as the Commissioner considers
appropriate—

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

(b) data subjects;

(c) 30persons who appear to the Commissioner to represent the
interests of data subjects.

(4) In 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
3552AA (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) 40in 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”;