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(c) specifies the period during which the person notified has an | |
opportunity of doing the things specified in subsection (3). | |
(3) Those things are— | |
(a) making representations about the matters notified; and | |
(b) complying with any notified term, provision or limitation of which he | 5 |
remains in contravention. | |
(4) Subject to subsections (5) to (7), the period for doing those things must be the | |
period of one month beginning with the day after the one on which the | |
notification was given. | |
(5) OFCOM may, if they think fit, allow a longer period for doing those things | 10 |
either— | |
(a) by specifying a longer period in the notification; or | |
(b) by subsequently, on one or more occasions, extending the specified | |
period. | |
(6) The person notified shall have a shorter period for doing those things if a | 15 |
shorter period is agreed between OFCOM and the person notified. | |
(7) The person notified shall also have a shorter period if— | |
(a) OFCOM have reasonable grounds for believing that the case is a case of | |
repeated contravention; | |
(b) they have determined that, in those circumstances, a shorter period | 20 |
would be appropriate; and | |
(c) the shorter period has been specified in the notification. | |
168 Meaning of “repeated contravention” in s. 167 | |
(1) For the purposes of section 167 a contravention is a repeated contravention, in | |
relation to a notification with respect to that contravention, if— | 25 |
(a) in the case of a contravention of a term, provision or limitation of a | |
licence, it falls within subsection (2) or (3); or | |
(b) in the case of a contravention of a term, provision or limitation of an | |
exemption, it falls within subsection (4) or (5). | |
(2) A contravention of a term, provision or limitation of a licence falls within this | 30 |
subsection if— | |
(a) a previous notification under this section has been given in respect of | |
the same contravention or in respect of another contravention of a term, | |
provision or limitation of the same licence; | |
(b) the person who was given that notification subsequently took steps for | 35 |
remedying the notified contravention; and | |
(c) the subsequent notification is given no more than twelve months after | |
the day of the giving of the previous notification. | |
(3) A contravention of a term, provision or limitation of a licence falls within this | |
subsection if— | 40 |
(a) the person concerned has been convicted of an offence under section | |
1(1) of the Wireless Telegraphy Act 1949 (c. 54) in respect of the | |
contravention to which the notification relates or in respect of another | |
contravention of a term, provision or limitation of the same licence; and | |
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(b) the subsequent notification is given before the end of the period of | |
twelve months from the contravention in respect of which that person | |
was convicted of that offence | |
(4) A contravention of a term, provision or limitation of an exemption falls within | |
this subsection if— | 5 |
(a) a previous notification under this section has been given in respect of | |
the same contravention or in respect of another contravention of the | |
same term, provision or limitation; | |
(b) the person who was given that notification subsequently took steps for | |
remedying the notified contravention; and | 10 |
(c) the subsequent notification is given no more than twelve months after | |
the day of the giving of the previous notification. | |
(5) A contravention of a term, provision or limitation of an exemption falls within | |
this subsection if— | |
(a) the person concerned has been convicted of an offence under section | 15 |
1(1) of the Wireless Telegraphy Act 1949 (c. 54) in respect of the | |
contravention to which the notification relates or in respect of another | |
contravention of the same term, provision or limitation; and | |
(b) the subsequent notification is given before the end of the period of | |
twelve months from the contravention in respect of which that person | 20 |
was convicted of that offence. | |
(6) In calculating the periods of twelve months mentioned in subsections (3)(b) | |
and (5)(b), the period between the institution of the criminal proceedings | |
which led to the conviction and the conclusion of those proceedings shall be | |
left out of account. | 25 |
(7) For the purposes of subsection (6) criminal proceedings shall be taken to be | |
concluded when no further appeal against conviction may be brought without | |
the permission of the court and— | |
(a) in a case where there is no fixed period within which that permission | |
can be sought, permission has been refused or has not been sought; or | 30 |
(b) in a case where there is a fixed period within which that permission can | |
be sought, that permission has been refused or that period has expired | |
without permission having been sought. | |
(8) References in this section to remedying a contravention include references to | |
each of the following— | 35 |
(a) doing any thing the failure to do which, or the failure to do which | |
within a particular period or before a particular time, constituted the | |
whole or a part of the contravention; | |
(b) paying an amount to a person by way of compensation for loss or | |
damage suffered by that person in consequence of the contravention; | 40 |
(c) paying an amount to a person by way of compensation in respect of | |
annoyance, inconvenience or anxiety to which he has been put in | |
consequence of the contravention; and | |
(d) otherwise acting in a manner that constitutes an acknowledgement that | |
the notified contravention did occur. | 45 |
(9) References in this section to a contravention of a term, provision or limitation | |
of a licence includes a reference to a contravention of a term, provision or | |
limitation contained in a previous licence of which the licence in question is a | |
direct or indirect renewal. | |
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169 Procedure for prosecutions of wireless telegraphy offences | |
(1) This section applies to proceedings against a person (“the defendant”) for an | |
offence under section 1 of the Wireless Telegraphy Act 1949 (c. 54) consisting | |
in the contravention of— | |
(a) the terms, provisions or limitations of a wireless telegraphy licence; or | 5 |
(b) the terms, provisions or limitations of an exemption under the proviso | |
to section 1(1) of the Wireless Telegraphy Act 1949 (exemptions from | |
licensing requirement). | |
(2) Proceedings to which this section applies are not to be brought at any time after | |
the coming into force of this section unless, before they are brought, OFCOM | 10 |
have— | |
(a) given the defendant a notification under section 167 in respect of the | |
contravention to which the proceedings relate; and | |
(b) considered any representations about the matters notified which were | |
made by the defendant within the period allowed under that section. | 15 |
(3) Proceedings to which this section applies are not to be brought at any time after | |
the coming into force of this section in respect of a contravention if— | |
(a) it is a contravention to which a notification given to that person under | |
section 167 relates; and | |
(b) that person has, during the period allowed under that section, | 20 |
complied with the notified term, provision or limitation. | |
(4) Subsection (2) does not apply where OFCOM have certified that it would be | |
inappropriate to follow the procedure in section 167 because of an immediate | |
risk of— | |
(a) a serious threat to the safety of the public, to public health or to national | 25 |
security; or | |
(b) serious economic or operational problems for persons (other than the | |
defendant) who— | |
(i) use stations or apparatus for wireless telegraphy; or | |
(ii) are communications providers or make associated facilities | 30 |
available. | |
(5) Where— | |
(a) proceedings to which this section applies are brought by virtue of | |
subsection (4) without a notification having been given to the | |
defendant, and | 35 |
(b) the defendant is convicted in those proceedings of the offence under | |
section 1 of the Wireless Telegraphy Act 1949, | |
the court, in determining how to deal with that person, shall have regard, in | |
particular, to the matters specified in subsection (6). | |
(6) Those matters are— | 40 |
(a) whether the defendant has ceased to be in contravention of the terms, | |
provisions or limitations in question and (if so) when; and | |
(b) any steps taken by the defendant (whether before or after the | |
commencement of the proceedings) for securing compliance with the | |
obligations imposed on him by virtue of those terms, provisions or | 45 |
limitations. | |
(7) Notwithstanding anything in section 127 of the Magistrates’ Courts Act 1980 | |
(c. 43) or Article 19 of the Magistrates’ Courts (Northern Ireland) Order 1981 | |
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(7) (S.I. 1981/1675 (N.I. 26)) (limitation on time for bringing summary | |
proceedings) where— | |
(a) OFCOM give a notification under section 167 in respect of a | |
contravention, and | |
(b) that notification is given before the end of six months after the day of | 5 |
the contravention, | |
the time for the bringing of proceedings for a summary offence in respect of | |
that contravention shall be extended until the end of six months from the end | |
of the period allowed, in the case of that notification, for doing the things | |
mentioned in section 167(3) of this Act. | 10 |
(8) In this section, “stations for wireless telegraphy” and “apparatus for wireless | |
telegraphy” have the same meaning as in the Wireless Telegraphy Act 1949 | |
(c. 54). | |
170 Special procedure for contraventions by multiplex licence holders | |
(1) OFCOM may impose a penalty on a person if— | 15 |
(a) that person is or has been in contravention in any respect of the terms, | |
provisions or limitations of a general multiplex licence; | |
(b) the contravention relates to terms, provisions or limitations falling | |
within section 1(2A)(b) or (c) of the Wireless Telegraphy Act 1949 | |
(terms, provisions and limitations about service content); | 20 |
(c) OFCOM have notified that person that it appears to them that those | |
terms, provisions or limitations have been contravened in that respect; | |
and | |
(d) that contravention is not one in respect of which proceedings for an | |
offence under that Act have been brought against that person. | 25 |
(2) Where OFCOM impose a penalty on a person under this section, they shall— | |
(a) notify that person of that decision and of their reasons for that decision; | |
and | |
(b) in that notification, fix a reasonable period after it is given as the period | |
within which the penalty is to be paid. | 30 |
(3) A penalty imposed under this section— | |
(a) must be paid to OFCOM; and | |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | |
(4) No proceedings for an offence under the Wireless Telegraphy Act 1949 shall be | 35 |
commenced against a person in respect of a contravention in respect of which | |
a penalty has been imposed by OFCOM under this section. | |
(5) For the purposes of this section a licence is a general multiplex licence, in | |
relation to the time of a contravention, if— | |
(a) it is a wireless telegraphy licence containing terms, provisions or | 40 |
limitations by virtue of which the services for the purposes of which the | |
use of the licensed station or apparatus is authorised are confined to, or | |
are allowed to include, one or more multiplex services; and | |
(b) at that time, there is no licence under Part 1 or 2 of the 1996 Act in force | |
in respect of a multiplex service to be broadcast using that station or | 45 |
apparatus. | |
(6) In this section “multiplex service” means— | |
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(a) a service for broadcasting for general reception that consists in the | |
packaging together of two or more services that are provided for | |
inclusion together in that service by a combination of the relevant | |
information in digital form; or | |
(b) a service provided with a view to its being a service falling within | 5 |
paragraph (a) but in the case of which only one service is for the time | |
being comprised in digital form in what is provided. | |
171 Amount of penalty under s. 170 | |
(1) The amount of a penalty imposed under section 170 is to be such amount, not | |
exceeding the greater of the following, as OFCOM think fit, namely— | 10 |
(a) £250,000; and | |
(b) 5 per cent. of the relevant amount of gross revenue. | |
(2) In subsection (1) “the relevant amount of gross revenue” means the amount | |
specified in section 172. | |
(3) The reference in subsection (2) to a person’s having been subject to a penalty in | 15 |
respect of a term, provision or limitation of a licence includes a reference to his | |
having been so subject in respect of a term, provision or limitation contained in | |
in any previous licence of which that licence is a direct or indirect renewal. | |
(4) The Secretary of State may by order amend this section so as to substitute a | |
different amount for the amount for the time being specified in subsection | 20 |
(1)(a). | |
(5) No order is to be made containing provision authorised by subsection (4) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
172 “Relevant amount of gross revenue” for the purposes of s. 171 | 25 |
(1) The relevant amount of gross revenue for the purposes of section 171, in | |
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 twelve months, the relevant part of his | |
gross revenue for that period; and | 30 |
(b) in any other case, the amount which, by making any appropriate | |
apportionments or other adjustments of the relevant part of his 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 his gross revenues. | 35 |
(2) The accounting period or periods referred to in subsection (1) are— | |
(a) every accounting period of his to end within the period of twelve | |
months immediately preceding the contravention; and | |
(b) if there is no such accounting period, the accounting period of his | |
which is current at the time of the contravention. | 40 |
(3) In this section, a reference to the relevant part of a person’s gross revenue, in | |
relation to a contravention of the terms, provisions or limitations of a licence, | |
is a reference to so much of his gross revenue as is attributable to the provision | |
of the service to which that licence relates. | |
(4) For the purposes of this section— | 45 |
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(a) a person’s gross revenue for a period shall be calculated in accordance | |
with such rules as may be set out in an order made by the Secretary of | |
State; and | |
(b) such an order may also make provision about the manner of | |
determining the extent to which a part of a person’s gross revenue is | 5 |
attributable to the provision of any service. | |
(5) Rules made by virtue of subsection (4)(a) 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 accordance with the rules, to be the amount that will be his gross | 10 |
revenue for that period. | |
(6) No order is to be made containing provision authorised by subsection (4) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
(7) Section 13A of the Wireless Telegraphy Act 1949 (c. 54) is to apply for the | 15 |
purpose of ascertaining the amount of a person’s gross revenue for any period | |
for the purposes of section 171 of this Act and this section as it applies for the | |
purpose of obtaining information for statistical purposes about matters | |
relating to the establishment, installation or use by that person of a station or | |
apparatus. | 20 |
(8) In this section— | |
“accounting period”, in relation to a person, means a period in respect of | |
which accounts of the undertaking carried on by him are prepared or, | |
if one such period is comprised in another, whichever of those periods | |
is or is closest to a twelve month period; and | 25 |
“gross revenue”, in relation to a person, means the gross revenue of an | |
undertaking carried on by that person. | |
173 Proceedings for an offence relating to apparatus use | |
(1) Section 11 of the Wireless Telegraphy Act 1949 (notices enforcing regulations | |
on the use of apparatus) shall have effect with the following amendments in | 30 |
relation to any notice under subsection (1) or (2) of that section that is served | |
after the coming into force of this subsection— | |
(a) paragraph (i) of the proviso to subsection (1) shall be omitted; and | |
(b) for subsections (3) to (6) there shall be substituted— | |
“(2A) Where an appeal with respect to a notice under this section is | 35 |
pending— | |
(a) proceedings for an offence of contravening that notice | |
(whether instituted before or after the bringing of the | |
appeal) shall be stayed until the appeal has been finally | |
determined; and | 40 |
(b) any such proceedings shall be discharged if the notice is | |
set aside in consequence of the appeal; | |
but this subsection does not affect proceedings in which a | |
person has been convicted at a time when there was no pending | |
appeal. | 45 |
(2B) For the purposes of this section an appeal under section 187 of | |
the Communications Act 2003 with respect to a notice under | |
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this section or a further appeal relating to the decision on such | |
an appeal is pending unless— | |
(a) that appeal has been brought to a conclusion or | |
withdrawn and there is no further appeal pending in | |
relation to the decision on the appeal; or | 5 |
(b) no further appeal against a decision made on the appeal | |
or on any such further appeal may be brought without | |
the permission of the court and— | |
(i) in a case where there is no fixed period within | |
which that permission can be sought, that | 10 |
permission has been refused or has not been | |
sought; or | |
(ii) in a case where there is a fixed period within | |
which that permission can be sought, that | |
permission has been refused or that period has | 15 |
expired without permission having been sought. | |
(2C) No proceedings for an offence of contravening a notice under | |
this section may be commenced in Scotland— | |
(a) until the time during which an appeal against such a | |
notice may be brought has expired; or | 20 |
(b) where such an appeal has been brought, until that | |
appeal has been determined. | |
(2D) Such proceedings in Scotland must be commenced within six | |
months of— | |
(a) where no appeal has been brought, the time referred to | 25 |
in paragraph (a) of subsection (2C); and | |
(b) where an appeal has been brought and determined, the | |
date of that determination.” | |
(2) Section 12 of that Act (enforcement of regulations as to sales of apparatus etc.) | |
shall have effect in relation to any notices served under subsection (1) of that | 30 |
section after the coming into force of this section with the substitution of the | |
following subsections for subsections (2) to (4)— | |
“(1A) Where an appeal with respect to a notice under subsection (1) of this | |
section is pending— | |
(a) proceedings for an offence of contravening that notice (whether | 35 |
instituted before or after the bringing of the appeal) shall be | |
stayed until the appeal has been finally determined; and | |
(b) any such proceedings shall be discharged if the notice is set | |
aside in consequence of the appeal; | |
but this subsection does not affect proceedings in which a person has | 40 |
been convicted at a time when there was no pending appeal. | |
(1B) For the purposes of this section any appeal under section 187 of the | |
Communications Act 2003 with respect to a notice under this section or | |
a further appeal relating to the decision on that appeal is pending | |
unless— | 45 |
(a) that appeal has been brought to a conclusion or withdrawn and | |
there is no further appeal pending in relation to the decision; or | |
(b) no further appeal against any decision made on the appeal or on | |
any such further appeal may be brought without the permission | |
of the court and— | 50 |
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