Digital Economy Bill (HL Bill 102)

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(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.

(3) 5In 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) in subsections (1) and (2), for “section 134A” substitute “sections 134A
10and 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) preparing a report under section 134AA;”.

(5) 15In section 393(6)(a) (general restrictions on disclosure of information), after
“26” insert “, 134AB”.

76 Comparative overviews of quality and prices

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

(2) After section 134C insert—

20“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
quality and prices of such services.

(2) 25OFCOM 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) In section 136 (information required for related purposes)—

(a) 30in 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
paragraph (b) insert—

(ba) 35limits the matters that may be published as part of a
comparative overview carried out by OFCOM under section
134D;”.

OFCOM: information

77 Conditions about allocation of telephone numbers

40In section 58 of the Communications Act 2003 (conditions about allocation and

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adoption of telephone numbers), after subsection (2) insert—

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

(a) to provide OFCOM with any information that was not required
5to accompany the application for allocation of the numbers
when it was made but which is now required to accompany
such applications;

(b) to inform OFCOM of any changes to information that
accompanied the application for allocation of the numbers or
10that 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
provide an electronic communications network or electronic
communications service;

(d) 15to inform OFCOM of any circumstances or events of a
description specified in the condition.”

78 Provision of information to OFCOM

(1) Section 135 of the Communications Act 2003 (information required for
purposes of functions) is amended as follows.

(2) 20For 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
purpose of carrying out their functions under—

(a) section 14(1),

(b) 25section 26, so far as relating to matters in relation to which they
have functions under this Chapter, or

(c) this Chapter.”

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

79 Information required from communications providers

(1) 30The Communications Act 2003 is amended as follows.

(2) After section 137 insert—

137A Information required from communications providers

(1) OFCOM may require a communications provider—

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

(b) 35to provide any such information to OFCOM for publication by
OFCOM.

(2) The information that OFCOM may require the communications
provider to publish or provide under subsection (1) includes
information that OFCOM require the provider to produce, generate or
40obtain for that purpose.

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

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(a) to 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) 5to 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) 10under 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) 15describes 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
20must—

(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) 25identify 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) 30The 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
35subsection (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
40matters 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
45opinion, seriously and prejudicially affect the interests of that
body.

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

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

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

(3) 5In 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) 10In 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
15requirement 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) 20after “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
25requirement 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
30“or 390” insert “, 137A”.

Appeals

80 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
35performed” 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
40decisions 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).

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(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
as would be applied by a court on an application for judicial review.

(3) The Tribunal may—

(a) 5dismiss 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
and make a new decision in accordance with the ruling of the
10Tribunal.

(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,
paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (exclusion of
15commercial 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) In this section “the decision-maker” means the person who made the
20decision 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
192(1)(d)(i), (ii), (iia) or (iv).”

(7) 25Until 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) Omit subsection (9).

(10) 30For 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) Sections 192(3) to (5), (7) and (8), 194A and 196 apply in the case of an
35appeal 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.

Regulation and functions of BBC

81 40Functions of OFCOM in relation to the BBC

(1) The Communications Act is amended as follows.

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(2) Section 198 (functions of OFCOM in relation to the BBC) is amended as follows.

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

“to regulate the BBC.”

(4) After subsection (2) insert—

(2A) 5The 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
carrying out by OFCOM of their function under subsection (1).”

(5) Omit subsection (9).

(6) 10After section 198 insert—

198ZA Penalties for failure to provide information

(1) This section applies if—

(a) under a power conferred by virtue of section 198(2A), OFCOM
require a person other than the BBC to provide information, and

(b) 15OFCOM determine that there are reasonable grounds to believe
the person has not provided the information.

(2) OFCOM may give the person a notice which sets out the determination
and specifies—

(a) what information the person must provide,

(b) 20the time within which the person must provide it,

(c) a penalty that OFCOM may impose if the person does not
provide it, and

(d) a period in which the person may make representations.

(3) OFCOM may impose a penalty on the person if they fail without
25reasonable excuse to provide the information in accordance with the
notice.

(4) The penalty may include an amount for each day the person fails to
provide the information after the time required by the notice.

(5) The penalty in respect of any notice—

(a) 30must not be more than OFCOM determine to be proportionate,

(b) must not be more than the penalty specified in the notice, and

(c) must not be more than £250,000.

(6) OFCOM may withdraw a notice without imposing a penalty, and that
does not affect the power to issue a further notice in relation to the same
35information.

(7) OFCOM must publish and keep up to date a statement of their
proposed approach to issuing notices and imposing and recovering
penalties under this section (subject to the guidelines published under
section 392).”

(7) 40The 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
chairman, vice-chairman or ordinary member of the BBC Trust);

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(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
5relation to TV licensing), “and be presented to the BBC Trust”.

82 TV licence fee concessions by reference to age

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

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

(3) After subsection (1) insert—

(1A) 10Liability 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) In 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
15“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
requires the person to whom the TV licence is issued, or another
person, to be of or above a specified age, unless—

(a) 20the 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) Subsection (5A) does not apply to—

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

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

(7) After section 365 insert—

365A TV licence fee concessions by reference to age

(1) 30For the purposes of section 365(1A) the BBC may determine that a
concession in specified terms is to apply.

(2) Any 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
35of the month in which the licence is issued.

(3) A determination under this section—

(a) may 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) 40may not provide for a concession to apply in the same
circumstances as a concession within section 365(5B).

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(4) A 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
5different provision in respect of different areas);

(b) may include transitional provision.

(6) A determination under this section—

(a) must be in writing;

(b) must be published in whatever way the BBC considers
10appropriate.

(7) The 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
15accordingly revoke a determination under this section).

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

OFCOM powers relating to criminal content etc

83 Suspension of radio licences for inciting crime or disorder

(1) 20In Chapter 2 of Part 3 of the Broadcasting Act 1990 (sound broadcasting
services), 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
25licence granted under this Chapter if they are satisfied that—

(a) the 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,

(b) in doing so the licence holder has failed to comply with a
30condition 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) A notice under this subsection must—

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

(b) 35specify 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
period of 21 days beginning with the day on which the notice is
served on the licence holder, and

(d) 40inform 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) The 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—

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(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
holder in the 21 day period mentioned in subsection (2)(c), OFCOM are
5satisfied 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) That time must not be earlier than the end of the period of 28 days
10beginning 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) In section 62(10) of the Broadcasting Act 1996 (application of sections 109 and
15111 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
to 111A of the 1990 Act to radio licensable content services) for “111A”
20substitute “111B”.

84 Digital additional services: seriously harmful extrinsic material

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

24A Duty to prevent access to seriously harmful extrinsic material

(1) 25In 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.

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

(a) 30is not included in the service, and

(b) appears to OFCOM

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

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

35On-demand programme services

85 On-demand programme services: accessibility for people with disabilities

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

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(2) After section 368BB insert—

“Accessibility
368BC Accessibility for people with disabilities

(1) The Secretary of State may by regulations impose requirements on
5providers of on-demand programme services for the purpose of
ensuring that their services are accessible to people with disabilities
affecting their sight or hearing or both.

(2) The requirements that may be imposed include—

(a) requirements for programmes included in the services to be
10accompanied by subtitling;

(b) requirements for such programmes to be accompanied by
audio-description for the blind;

(c) requirements for such programmes to be presented in, or
translated into, sign language.

(3) 15Before making regulations under this section, the Secretary of State
must consult—

(a) the appropriate regulatory authority, and

(b) (where they are not the appropriate regulatory authority)
OFCOM.

368BD 20 Enforcement of regulations under section 368BC

(1) Where the appropriate regulatory authority determine that a provider
of an on-demand programme service is contravening or has
contravened regulations under section 368BC, they may do one or both
of the following—

(a) 25give the provider an enforcement notification under this
section;

(b) impose a penalty on the provider in accordance with section
368J.

(2) The appropriate regulatory authority must not make a determination
30as mentioned in subsection (1) unless there are reasonable grounds for
believing that a contravention of the regulations is occurring or has
occurred and they have allowed the provider an opportunity to make
representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which
35specifies the determination made as mentioned in subsection (1) and
imposes a requirement on the provider to take all such steps for
complying with the regulations and for remedying the consequences of
the contravention of the regulations as may be specified in the
notification.

(4) 40An enforcement notification must—

(a) include reasons for the appropriate regulatory authority’s
decision to give the enforcement notification, and

(b) fix a reasonable period for taking the steps required by the
notification.