Digital Economy Bill (HL Bill 122)

(b) OFCOM have allowed the person an opportunity to make
representations about the matters notified, and

(c) the period allowed for the making of representations has
expired.

(2) 5OFCOM may—

(a) give the person a decision (a “confirmation decision”)
confirming the imposition of requirements on the person, or the
suspension or revocation of the person’s registration, or both, in
accordance with the notification under section 53E, or

(b) 10inform the person that they are satisfied with the person’s
representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to a person unless, after
considering any representations, they are satisfied that the person has,
in one or more of the respects notified, been in contravention of a
15restriction or condition specified in the notification under section 53E.

(4) A confirmation decision—

(a) must be given to the person without delay,

(b) must include reasons for the decision,

(c) may require immediate action by the person to comply with
20requirements of a kind mentioned in section 53E(2)(d), or may
specify a period within which the person must comply with
those requirements,

(d) may require the person to pay—

(i) the penalty specified in the notification under section
2553E, or

(ii) such lesser penalty as OFCOM consider appropriate in
the light of the person’s representations or steps taken
by the person to comply with the condition or restriction
or remedy the consequences of the contravention, and

(e) 30may specify the period within which any such penalty is to be
paid.

(5) It is the duty of the person to comply with any requirement imposed by
a confirmation decision.

(6) That duty is enforceable in civil proceedings by OFCOM—

(a) 35for an injunction,

(b) for specific performance of a statutory duty under section 45 of
the Court of Session Act 1988, or

(c) for any other appropriate remedy or relief.

(7) A penalty imposed by a confirmation decision—

(a) 40must be paid to OFCOM, and

(b) if not paid within the period specified by them, is to be
recoverable by them accordingly.

53H Meaning of “relevant amount of gross revenue”

(1) The relevant amount of gross revenue for the purposes of section 53F,
45in relation to a penalty imposed on a person, is—

(a) where the last accounting period of that person which falls
before the contravention was a period of 12 months, the
relevant part of the person’s gross revenue for that period, and

(b) in any other case, the amount which, by making any
5appropriate apportionments or other adjustments of the
relevant part of the person’s gross revenue for the accounting
period or periods mentioned in subsection (2), is computed to
be the amount representing the annual rate for the relevant part
of the person’s gross revenue.

(2) 10The accounting period or periods referred to in subsection (1) are—

(a) every accounting period of the person to end within the period
of 12 months immediately preceding the contravention, and

(b) if there is no such accounting period, the accounting period of
the person which is current at the time of the contravention.

(3) 15A reference to the relevant part of a person’s gross revenue, in relation
to a contravention of the restrictions or conditions subject to which the
person is registered under section 53A, is a reference to so much of the
person’s gross revenue as is attributable to the provision of the
dynamic spectrum access service to which the contravention relates.

(4) 20For the purposes of this section—

(a) the gross revenue of a person for a period, and

(b) the extent to which a part of a person’s gross revenue is
attributable to the provision of any dynamic spectrum access
service,

25is to be ascertained in accordance with such principles as may be set out
in a statement made by OFCOM.

(5) Such a statement may provide for the amount of a person’s gross
revenue for an accounting period that is current when the amount falls
to be calculated to be taken to be the amount estimated by OFCOM, in
30accordance with the principles set out in the statement, to be the
amount that will be the person’s gross revenue for that period.

(6) OFCOM may revise a statement made under subsection (4) from time
to time.

(7) A statement made or revised under this section may set out different
35principles for different cases.

(8) Before making or revising a statement under this section, OFCOM must
consult the Secretary of State and the Treasury.

(9) OFCOM must—

(a) publish the statement made under subsection (4) and every
40revision of it, and

(b) send a copy of the statement and of every such revision to the
Secretary of State,

and the Secretary of State must lay copies of the statement and of every
such revision before each House of Parliament.

(10) 45In this section—

• “accounting period”, in relation to a person, means a period in
  respect of which accounts of the undertaking carried on by the

  Digital Economy BillPage 12

  person are prepared or, if one such period is comprised in
  another, whichever of those periods is or is closest to a 12 month
  period;

• “gross revenue”, in relation to a person, means the gross revenue
  5of an undertaking carried on by that person.

53I Requirement to provide information about gross revenue

(1) OFCOM may require a person to whom a notification has been given
under section 53E to provide them with all such information as they
may require for the purpose of ascertaining the person’s gross revenue.

(2) 10A demand for information required under this section must be
contained in a notice given to the person from whom the information is
required.

(3) A person required to give information under this section must provide
it in such manner and within such reasonable period as may be
15specified by OFCOM.

(4) Sections 53K to 53M apply for the purposes of a requirement imposed
under this section as they apply for the purposes of a requirement
imposed under section 53J.

Information

53J 20Provision of information to persons registered under section 53A

(1) OFCOM may require a person falling within subsection (2) to provide
a person registered under section 53A with all such information as
OFCOM consider necessary and proportionate for the purpose of
enabling the registered person to avoid undue interference with
25wireless telegraphy.

(2) The persons falling within this subsection are—

(a) a person who is using, or has established or used, a wireless
telegraphy station, and

(b) a person who is using, or has installed or used, wireless
30telegraphy apparatus.

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

(4) The notice must—

(a) 35describe the required information,

(b) specify the manner and form in which it is to be provided,

(c) specify when and (if appropriate) how frequently it is to be
provided, and

(d) specify to whom it is to be provided.

53K 40Notification of contravention of information requirements

(1) Where OFCOM determine that there are reasonable grounds for
believing that a person is contravening, or has contravened, a
requirement imposed under section 53J, they may give the person a
notification under this section.

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

(a) sets out the determination made by OFCOM,

(b) specifies the requirement and contravention in respect of which
the determination has been made,

(c) 5specifies the period during which the person notified has an
opportunity to make representations, and

(d) specifies any penalty which OFCOM are minded to impose in
accordance with section 53L.

(3) A notification under this section—

(a) 10may be given in respect of more than one contravention, and

(b) if it is given in respect of a continuing contravention, may be
given in respect of any period during which the contravention
has continued.

(4) Where a notification under this section has been given to a person in
15respect of a contravention of a requirement, OFCOM may give a further
notification in respect of the same contravention if, and only if—

(a) the contravention is one occurring after the time of the giving of
the earlier notification,

(b) the contravention is a continuing contravention and the
20subsequent notification is in respect of so much of a period as
falls after a period to which the earlier notification relates, or

(c) the earlier notification has been withdrawn without a penalty
having been imposed in respect of the notified contravention.

53L Penalties under section 53K

(1) 25This section applies where a person is given a notification under section
53K that specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a
separate penalty may be specified in respect of each contravention.

(3) Where the notification relates to a continuing contravention, no more
30than one penalty may be specified in respect of the period of
contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be
specified in respect of each day on which the contravention continues
after—

(a) 35the giving of a confirmation decision under section 53M(4)(c)
which requires immediate action, or

(b) the expiry of any period specified in the confirmation decision
for complying with a requirement so specified.

(5) The amount of a penalty specified under subsection (4) is to be such
40amount, not exceeding £20,000 per day, as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the contravention in respect of which it is
imposed.

(6) The amount of any other penalty specified under this section is to be
45such amount, not exceeding £2 million, as OFCOM determine to be
both—

(a) appropriate; and

(b) proportionate to the contravention in respect of which it is
imposed.

53M Enforcement of notification under section 53K

(1) This section applies where—

(a) 5a person has been given a notification under section 53K,

(b) OFCOM have allowed the person an opportunity to make
representations about the matters notified, and

(c) the period allowed for the making of representations has
expired.

(2) 10OFCOM may—

(a) give the person a decision (a “confirmation decision”)
confirming the imposition of requirements in accordance with
the notification under section 53K, or

(b) inform the person that they are satisfied with the person’s
15representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to a person unless, after
considering any representations, they are satisfied that the person has,
in one or more of the respects notified, been in contravention of a
requirement notified under section 53K.

(4) 20A confirmation decision—

(a) must be given to the person without delay,

(b) must include reasons for the decision,

(c) may require immediate action by the person to comply with a
requirement notified under section 53K, or may specify a period
25within which the person must comply with the requirement,

(d) may require the person to pay—

(i) the penalty specified in the notification under section
53L, or

(ii) such lesser penalty as OFCOM consider appropriate in
30the light of the person’s representations or steps taken
by the person to comply with the requirement or
remedy the consequences of the contravention, and

(e) may specify the period within which any such penalty is to be
paid.

(5) 35It is the duty of the person to comply with any requirement imposed by
a confirmation decision.

(6) That duty is enforceable in civil proceedings by OFCOM—

(a) for an injunction,

(b) for specific performance of a statutory duty under section 45 of
40the Court of Session Act 1988, or

(c) for any other appropriate remedy or relief.

(7) A penalty imposed by a confirmation decision—

(a) must be paid to OFCOM, and

(b) if not paid within the period specified by them, is to be
45recoverable by them accordingly.”

(2) In section 111(3) of that Act (exemptions from general restriction on

disclosure), after paragraph (c) insert—

“(ca) by OFCOM to a person registered under section 53A for the
purpose of providing the dynamic spectrum access service in
respect of which the person is registered;”.

(3) 5In section 115(1) of that Act (general interpretation), at the appropriate place
insert—

• “““dynamic spectrum access service” has the meaning given by
  section 53A;”.

(4) In section 400(1) of the Communications Act 2003 (destination of fees and
10penalties)—

(a) in paragraph (d), before “of that Act” insert “or Part 2A”, and

(b) after that paragraph insert—

“(da) an amount paid to OFCOM in respect of a fee charged
under section 53D of that Act;”.

(5) 15In Schedule 8 to that Act (decisions not subject to appeal)—

(a) in paragraph 40(a), after “45” insert “, 53A(7), 53D”,

(b) in paragraph 41, for “or 24” substitute “, 24 or 53D(6)”, and

(c) in paragraph 43, omit the “or” after paragraph (a) and at the end of
paragraph (b) insert “, or

(c) 20section 53H.”

Other regulation of spectrum

10 Statement of strategic priorities

In Part 1 of the Wireless Telegraphy Act 2006, after section 7 insert—

“Statement of strategic priorities

7A 25Statement of strategic priorities

(1) The Secretary of State may designate a statement for the purposes of
this section if the requirements set out in section 7C (Parliamentary
procedure) are satisfied.

(2) The statement is a statement prepared by the Secretary of State that sets
30out strategic priorities of Her Majesty’s government relating to the
management of the radio spectrum in the United Kingdom.

(3) The statement may, in particular, set out—

(a) particular outcomes identified with a view to achieving the
strategic priorities, and

(b) 35the roles and responsibilities of persons (whether the Secretary
of State, OFCOM or other persons) who have functions to which
the strategic priorities relate.

(4) This section does not restrict the Secretary of State’s power under
section 5 of this Act or section 5 of the Communications Act 2003.

(5) 40A statement designated under subsection (1) may be amended
(including by replacing the whole or part of the statement with new
content) by a subsequent statement designated under that subsection,

and this section and sections 7B and 7C apply in relation to any such
subsequent statement as in relation to the original statement.

7B Duties of OFCOM in relation to statement

(1) This section applies where a statement has been designated under
5section 7A(1).

(2) The Secretary of State must—

(a) publish the statement in such manner as the Secretary of State
considers appropriate, and

(b) take such other steps as the Secretary of State considers
10appropriate for the purpose of bringing it to OFCOM’s
attention.

(3) OFCOM must have regard to the statement when carrying out their
radio spectrum functions.

(4) The duty imposed by subsection (3) does not affect the obligation of
15OFCOM to comply with any other duty or requirement (whether
arising under this or any other Act or otherwise).

(5) If required to do so by the Secretary of State OFCOM must, within such
period as the Secretary of State may direct—

(a) explain in writing to the Secretary of State how they propose to
20comply with the duty imposed by subsection (3), and

(b) publish a copy of that explanation in such manner as OFCOM
consider appropriate.

(6) The Secretary of State must lay a copy of that explanation before
Parliament.

7C 25Parliamentary procedure for designation of statement

(1) This section sets out the requirements that must be satisfied in relation
to a statement before the Secretary of State may designate it under
section 7A(1).

(2) Before designating the statement the Secretary of State must lay a draft
30of the statement before Parliament.

(3) The Secretary of State must then wait until the end of the 40-day period
and may not designate the statement if, within that period, either
House of Parliament resolves not to approve it.

(4) “The 40-day period” is the period of 40 days beginning with the day on
35which the draft is laid before Parliament (or, if it is not laid before each
House on the same day, the later of the days on which it is laid).

(5) When calculating the 40-day period, ignore any period during which
Parliament is dissolved or prorogued or during which both Houses are
adjourned for more than 4 days.”

11 40Penalties for contravention of wireless telegraphy licences

(1) The Wireless Telegraphy Act 2006 is amended as follows.

(2) In section 42 (special procedure for contraventions by multiplex licence
holders), in subsection (1)—

(a) in paragraph (a), for “general multiplex” substitute “wireless
telegraphy”, and

(b) omit paragraph (b).

(3) At the end of that section insert—

“(7) 5A contravention is a “relevant multiplex contravention” for the
purposes of section 43 if—

(a) it is a contravention of terms, provisions or limitations of a
general multiplex licence, and

(b) the contravention relates only to terms, provisions or
10limitations that fall within section 9(4)(b) or (c).”

(4) In the heading of that section, for “multiplex licence holders” substitute
“holders of wireless telegraphy licences”.

(5) In section 43 (amount of penalty under section 42), in subsection (1), after
“section 42” insert “for a relevant multiplex contravention (see subsection (7) of
15that section)”.

(6) In that section, after subsection (2) insert—

“(2A) The amount of a penalty imposed under section 42 for a contravention
that is not a relevant multiplex contravention is to be such amount not
exceeding 10 per cent of the relevant amount of gross revenue as
20OFCOM think—

(a) appropriate; and

(b) proportionate to the contravention in respect of which it is
imposed.”

(7) In that section, in subsection (3), for “subsection (2)” substitute “this section”.

(8) 25Omit section 43A.

(9) In section 44 (relevant amount of gross revenue), in subsections (1) and (10),
omit “or 43A”.

(10) In section 400 of the Communications Act 2003 (destination of licence fees and
penalties), in subsection (1)(d), omit “or 43A”.

(11) 30In Schedule 8 to that Act (decisions not subject to appeal), at the end of
paragraph 44 insert “for a relevant multiplex contravention”.

(12) Omit section 39 of the Digital Economy Act 2010.

(13) The amendments and repeals made by this section do not apply in relation to—

(a) any contravention which takes place before the day on which this
35section comes into force, or

(b) any continuing contravention which began before that day.

12 Fixed penalties under Wireless Telegraphy Act 2006

(1) In paragraph 4(2)(a) of Schedule 4 to the Wireless Telegraphy Act 2006
(suspended enforcement period for purposes of fixed penalty notice) for “one
40month” substitute “28 days”.

(2) The amendment made by this section does not apply in relation to a fixed
penalty notice issued in respect of an offence committed before this section
comes into force.

13 Search warrants under Wireless Telegraphy Act 2006

(1) 5In section 97(3) of the Wireless Telegraphy Act 2006 (period for entering
premises under warrant) for “of three months beginning with the day after the
date of the warrant” substitute “beginning with the grant of the warrant and
ending three months after the end of the day on which the warrant is granted”.

(2) The amendment made by this section does not apply in relation to a warrant
10granted in respect of an offence committed before this section comes into force.

14 Disposal of seized property under Wireless Telegraphy Act 2006

(1) In section 101 of the Wireless Telegraphy Act 2006 (detention and disposal of
seized property), for subsection (5) substitute—

“(5) OFCOM may dispose of the property in such manner as they think fit
15if it remains in their possession after the end of the six months
immediately following—

(a) the end of the period of detention authorised by subsection
(2)(a), or

(b) if subsection (2)(b) applies, the end of the day on which the
20proceedings referred to in that provision were concluded.”

(2) The amendment made by this section does not apply where the relevant
offence is one committed before this section comes into force.

(3) The relevant offence—

(a) where section 101(1)(a) of the Wireless Telegraphy Act 2006 applies, is
25the offence in relation to which the warrant is granted;

(b) where section 101(1)(b) of that Act applies, is the offence referred to in
section 99(3) of that Act.

15 Time limits for prosecutions under Wireless Telegraphy Act 2006

(1) The Wireless Telegraphy Act 2006 is amended as follows.

(2) 30In section 107 (proceedings and enforcement), after subsection (3) insert—

“(3A) For the time limit for bringing proceedings which are for a summary
offence under section 35 and to which section 41 applies see section
41(7).

(3B) The time limit for bringing any other proceedings for a summary
35offence under section 35, 58 or 66 is—

(a) one year from the end of the day on which the prosecutor
becomes aware of evidence which he or she considers sufficient
to justify a prosecution for the offence, or

(b) if earlier, three years from the end of the day on which the
40offence was committed.

(3C) Section 41(7) and subsection (3B) above have effect despite—

(a) section 127 of the Magistrates’ Courts Act 1980 (time limit for
bringing proceedings for summary offences in England and
Wales),

(b) Article 19 of the Magistrates’ Courts (Northern Ireland) Order
51981 (S.I. 1981/1675 (N.I. 26)) (equivalent provision for
Northern Ireland), and

(c) section 136 of the Criminal Procedure (Scotland) Act 1995
(equivalent provision for Scotland).

(3D) In relation to proceedings in Scotland, subsection (3) of section 136 of
10the Criminal Procedure (Scotland) Act 1995 (date when proceedings
deemed to be commenced for the purposes of that section) applies also
for the purposes of section 41(7) and subsection (3B) above.”

(3) In section 41 (procedure for prosecutions)—

(a) in subsection (3)(b) for “allowed under that section” substitute
15“specified under section 39(2)(c) for making representations”;

(b) in subsection (7) for the words from “allowed” to the end substitute
“specified under section 39(2)(c).”;

(c) for subsection (8) substitute—

“(8) For further provision about prosecutions see section 107.”

(4) 20The amendments made by this section do not apply in relation to an offence
committed before this section comes into force.

Part 3 Online pornography

16 Internet pornography: requirement to prevent access by persons under the
25age of 18

(1) A person contravenes this subsection if the person makes pornographic
material available on the internet to persons in the United Kingdom on a
commercial basis other than in a way that secures that, at any given time, the
material is not normally accessible by persons under the age of 18.

(2) 30The Secretary of State may make regulations specifying, for the purposes of
this Part, circumstances in which material is or is not to be regarded as made
available on a commercial basis.

(3) The regulations may, among other things, prescribe circumstances in which
material made available free of charge is or is not to be regarded as made
35available on a commercial basis.

(4) Regulations under subsection (2) may provide for circumstances to be treated
as existing where it is reasonable to assume that they exist.

(5) Regulations 17 to 20 and 22 of the Electronic Commerce (EC Directive)
Regulations 2002 (S.I. 2002/2013) apply in relation to this Part, despite
40regulation 3(2) of those Regulations.

(6) For the purposes of this Part—

(a) making material available on the internet does not include making the
content of an on-demand programme service available on the internet
in the course of providing such a service;