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(i) in a case where there is no fixed period within which | |
that permission can be sought, that 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 | 5 |
refused or that period has expired without permission | |
having been sought. | |
(1C) 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 | 10 |
be brought has expired; or | |
(b) where such an appeal has been brought, until that appeal has | |
been determined. | |
(1D) Such proceedings in Scotland must be commenced within six months | |
of— | 15 |
(a) where no appeal has been brought, the time referred to in | |
paragraph (a) of subsection (1C); and | |
(b) where an appeal has been brought and determined, the date of | |
that determination.” | |
174 Modification of penalties for certain wireless telegraphy offences | 20 |
(1) In subsection (1) of section 14 of the Wireless Telegraphy Act 1949 (c. 54) (either | |
way offences), for paragraphs (aa) and (ab) there shall be substituted— | |
“(aa) any offence under section 1(1) of this Act consisting in the | |
establishment or use of a station for wireless telegraphy, or the | |
installation or use of wireless telegraphy apparatus, for the | 25 |
purpose of making a broadcast (within the meaning of section 9 | |
of the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41)); | |
(ab) any offence under section 1A of this Act where the relevant | |
contravention of section 1 would constitute an offence falling | |
within paragraph (aa);”. | 30 |
(2) After subsection (1A), there shall be inserted— | |
“(1AA) A person committing— | |
(a) an offence under section 1(1) of this Act other than— | |
(i) one which falls within subsection (1)(aa), or | |
(ii) one which falls within subsection (1A)(a), or | 35 |
(b) an offence under section 1A of this Act other than— | |
(i) one which falls within subsection (1)(ab), or | |
(ii) one which falls within subsection (1A)(aa), | |
shall be liable, on summary conviction, to imprisonment for a term not | |
exceeding six months or to a fine not exceeding level 5 on the standard | 40 |
scale, or to both.” | |
(3) In section 79(1) of the Telecommunications Act 1984 (c. 12) (offences in respect | |
of which apparatus may be seized), after paragraph (b) there shall be | |
inserted— | |
“(bza) any offence under section 1A of that Act other than one where | 45 |
the relevant contravention of section 1 of that Act would | |
constitute an offence so consisting;”. | |
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(4) This section only applies in relation to offences committed after the | |
commencement of this section. | |
175 Fixed penalties for certain wireless telegraphy offences | |
Schedule 6 (which makes provision as respects fixed penalty notices for | |
summary offences under the Wireless Telegraphy Act 1949 (c. 54)) shall have | 5 |
effect. | |
176 Power of arrest | |
(1) In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (offences | |
for which power of summary arrest available), after paragraph 2 there shall be | |
inserted— | 10 |
“Wireless Telegraphy Act 1949 | |
2A An offence mentioned in section 14(1) of the Wireless Telegraphy Act | |
1949 (offences under that Act which are triable either way).” | |
(2) In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order | |
1989 (S.I. 1989/1341 (N.I. 12)) (offences for which power of summary arrest | 15 |
available), after paragraph (i) there shall be inserted— | |
“(j) an offence mentioned in section 14(1) of the Wireless | |
Telegraphy Act 1949 (offences under that Act which are triable | |
either way);”. | |
177 Forfeiture etc. of restricted apparatus | 20 |
(1) Apparatus to which this section applies shall be liable to forfeiture if, | |
immediately before being seized, it was in a person’s custody or control in | |
contravention of a prohibition imposed by an order under section 7 of the | |
Wireless Telegraphy Act 1967 (c. 72) (restriction on dealings in and custody of | |
certain apparatus). | 25 |
(2) This section applies to apparatus if it has been seized— | |
(a) in pursuance of a warrant granted under section 15(1) of the Wireless | |
Telegraphy Act 1949; or | |
(b) in the exercise of the power conferred by section 79(3) of the | |
Telecommunications Act 1984 (c. 12). | 30 |
(3) Apparatus forfeited under this section is to be forfeited to OFCOM and may be | |
disposed of by them in any manner they think fit. | |
(4) Schedule 7 (which makes provision in relation to the seizure and forfeiture of | |
apparatus) shall have effect. | |
(5) The preceding provisions of this section and Schedule 7 apply only in relation | 35 |
to apparatus seized after the commencement of this section. | |
(6) Sections 80 and 81 of the Telecommunications Act 1984 (which make provision | |
for forfeiture of apparatus) are not to apply in relation to apparatus seized after | |
the commencement of this section. | |
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(7) In section 7(5) of the Wireless Telegraphy Act 1967 (c. 72), paragraph (b) (which | |
allows a person to have custody of control of restricted apparatus when | |
authorised otherwise than by the Secretary of State) shall cease to have effect. | |
Construction of 1949 Act | |
178 Modification of definition of “undue interference” | 5 |
For subsection (5) of section 19 of the Wireless Telegraphy Act 1949 (c. 54) | |
(meaning of undue interference) there shall be substituted— | |
“(5) Interference with any wireless telegraphy is not to be regarded as | |
undue for the purposes of this Act unless it is also harmful. | |
(5A) For the purposes of this Act interference is harmful if— | 10 |
(a) it creates dangers, or risks of danger, in relation to the | |
functioning of any service provided by means of wireless | |
telegraphy for the purposes of navigation or otherwise for | |
safety purposes; or | |
(b) it degrades, obstructs or repeatedly interrupts anything which | 15 |
is being broadcast or otherwise transmitted— | |
(i) by means of wireless telegraphy; and | |
(ii) in accordance with a licence under this Act, regulations | |
under the proviso to section 1(1) of this Act or a grant of | |
recognised spectrum access under Chapter 2 of Part 2 of | 20 |
the Communications Act 2003 or otherwise lawfully.” | |
179 Modification of definition of “wireless telegraphy” | |
(1) The Secretary of State may by order modify the definition of “wireless | |
telegraphy” in section 19(1) of the Wireless Telegraphy Act 1949 by | |
substituting a different frequency for the frequency (at the passing of this Act, | 25 |
3,000 GHz) that is for the time being specified in that definition. | |
(2) No order is to be made containing provision authorised by this section unless | |
a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
Chapter 3 | 30 |
Disputes and appeals | |
Disputes | |
180 Reference of disputes to OFCOM | |
(1) This section applies in the case of a dispute relating to the provision of network | |
access if it is— | 35 |
(a) a dispute between different communications providers; | |
(b) a dispute between a communications provider and a person who | |
makes associated facilities available; | |
(c) a dispute between different persons making such facilities available; | |
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(d) a dispute relating to the subject-matter of a condition set under section | |
70(1) between a communications provider or person who makes | |
associated facilities available and a person who (without being such a | |
person) is a person to whom such a condition applies; or | |
(e) a dispute relating to the subject-matter of such a condition between | 5 |
different persons each of whom (without being a communications | |
provider or a person who makes associated facilities available) is a | |
person to whom such a condition applies. | |
(2) This section also applies in the case of any other dispute if— | |
(a) it relates to rights or obligations conferred or imposed by or under this | 10 |
Part or any of the enactments relating to the management of the radio | |
spectrum that are not contained in this Part; | |
(b) it is a dispute between different communications providers; and | |
(c) it is not an excluded dispute. | |
(3) Any one or more of the parties to the dispute may refer it to OFCOM. | 15 |
(4) A reference made under this section is to be made in such manner as OFCOM | |
may require. | |
(5) The way in which a requirement under subsection (4)— | |
(a) is to be imposed, or | |
(b) may be withdrawn or modified, | 20 |
is by a notice published in such manner as OFCOM consider appropriate for | |
bringing the requirement, withdrawal or modification to the attention of the | |
persons who, in their opinion, are likely to be affected by it. | |
(6) Requirements imposed under subsection (4) may make different provision for | |
different cases. | 25 |
(7) A dispute is an excluded dispute for the purposes of subsection (2) if it is | |
about— | |
(a) obligations imposed on a communications provider by SMP apparatus | |
conditions; | |
(b) contraventions of sections 121 to 123; | 30 |
(c) obligations imposed on a communications provider by or under any of | |
sections 124 to 127; or | |
(d) the operation in the case of a communications provider of section 130. | |
(8) For the purposes of this section— | |
(a) the disputes that relate to the provision of network access include | 35 |
disputes as to the terms or conditions on which it is or may be provided | |
in a particular case; and | |
(b) the disputes that relate to an obligation include disputes as to the terms | |
or conditions on which any transaction is to be entered into for the | |
purpose of complying with that obligation. | 40 |
181 Action by OFCOM on dispute reference | |
(1) This section applies where a dispute is referred to OFCOM under and in | |
accordance with section 180. | |
(2) OFCOM must decide whether or not it is appropriate for them to handle the | |
dispute. | 45 |
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(3) Unless they consider— | |
(a) that there are alternative means available for resolving the dispute, | |
(b) that a resolution of the dispute by those means would be consistent | |
with the Community requirements set out in section 4, and | |
(c) that a prompt and satisfactory resolution of the dispute is likely if those | 5 |
alternative means are used for resolving it, | |
their decision must be a decision that it is appropriate for them to handle the | |
dispute. | |
(4) As soon as reasonably practicable after OFCOM have decided— | |
(a) that it is appropriate for them to handle the dispute, or | 10 |
(b) that it is not, | |
they must inform each of the parties to the dispute of their decision and of their | |
reasons for it. | |
(5) The notification must state the date of the decision. | |
(6) Where— | 15 |
(a) OFCOM decide that it is not appropriate for them to handle the | |
dispute, but | |
(b) the dispute is not resolved by other means before the end of the four | |
months after the day of OFCOM’s decision, | |
the dispute may be referred back to OFCOM by one or more of the parties to | 20 |
the dispute. | |
182 Legal proceedings about referred disputes | |
(1) Where a dispute is referred or referred back to OFCOM under this Chapter, the | |
reference is not to prevent— | |
(a) the person making it, | 25 |
(b) another party to the dispute, | |
(c) OFCOM, or | |
(d) any other person, | |
from bringing, or continuing, any legal proceedings with respect to any of the | |
matters under dispute. | 30 |
(2) Nor is the reference or reference back to OFCOM under this Chapter of a | |
dispute to prevent OFCOM from— | |
(a) giving a notification in respect of something that they have reasonable | |
ground for believing to be a contravention of any obligation imposed | |
by or under any an enactment; | 35 |
(b) exercising any of their other powers under any enactment in relation to | |
a contravention of such an obligation; or | |
(c) taking any other step in preparation for or with a view to doing | |
anything mentioned in the preceding paragraphs. | |
(3) If, in any legal proceedings with respect to a matter to which a dispute relates, | 40 |
the court orders the handling of the dispute by OFCOM to be stayed— | |
(a) OFCOM is required to make a determination for resolving the dispute | |
only if the stay is lifted or expires; and | |
(b) the period during which the stay is in force must be disregarded in | |
determining the period within which OFCOM are required to make | 45 |
such a determination. | |
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(4) Subsection (1) is subject to section 185(8) and to any agreement to the contrary | |
binding the parties to the dispute. | |
(5) In this section “legal proceedings” means civil or criminal proceedings in or | |
before a court. | |
183 Procedure for resolving disputes | 5 |
(1) This section applies where— | |
(a) OFCOM have decided under section 181(2) that it is appropriate for | |
them to handle a dispute, or | |
(b) a dispute is referred back to OFCOM under section 181(6). | |
(2) OFCOM must— | 10 |
(a) consider the dispute; and | |
(b) make a determination for resolving it. | |
(3) The procedure for the consideration and determination of the dispute is to be | |
the procedure that OFCOM consider appropriate. | |
(4) In the case of a dispute referred back to OFCOM under section 181(6), that | 15 |
procedure may involve allowing the continuation of a procedure that has | |
already been begun for resolving the dispute by alternative means. | |
(5) Except in exceptional circumstances and subject to section 182(3), OFCOM | |
must make their determination no more than four months after the following | |
day— | 20 |
(a) in a case falling within subsection (1)(a), the day of the decision by | |
OFCOM that it is appropriate for them to handle the dispute; and | |
(b) in a case falling within subsection (1)(b), the day on which the dispute | |
is referred back to them. | |
(6) Where it is practicable for OFCOM to make their determination before the end | 25 |
of the four month period, they must make it as soon in that period as | |
practicable. | |
(7) OFCOM must— | |
(a) send a copy of their determination, together with a full statement of | |
their reasons for it, to every party to the dispute; and | 30 |
(b) publish so much of their determination as (having regard, in particular, | |
to the need to preserve commercial confidentiality) they consider it | |
appropriate to publish. | |
(8) The publication of information under this section must be in such manner as | |
OFCOM consider appropriate for bringing it to the attention, to the extent that | 35 |
they consider appropriate, of members of the public. | |
184 Disputes involving other member States | |
(1) This section applies where it appears to OFCOM that a dispute referred or | |
referred back to them under this Chapter relates partly to a matter falling | |
within the jurisdiction of the regulatory authorities of another member State. | 40 |
(2) A dispute relates to matters falling within the jurisdiction of the regulatory | |
authorities of another member State to the extent that— | |
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(a) it relates to the carrying on of activities by one or both of the parties to | |
the dispute in more than one member State or to activities carried on by | |
different parties to the dispute in different member States; and | |
(b) the activities to which the dispute relates, so far as they are carried on | |
in another member State, are carried on in the member State for which | 5 |
those authorities are the regulatory authorities. | |
(3) For the purposes of subsection (2) the activities that are carried on in a member | |
State include anything done by means of an electronic communications | |
network, or part of such a network, which is situated in that member State. | |
(4) Before taking any steps under this Chapter in relation to the reference or the | 10 |
dispute, OFCOM must consult the other regulatory authorities within whose | |
jurisdiction the matter falls. | |
(5) It shall be the duty of OFCOM to secure that steps taken in relation to the | |
reference or dispute (whether taken by them or by the other regulatory | |
authorities) are, so far as practicable, agreed between OFCOM and those | 15 |
authorities. | |
(6) Accordingly, section 183 is to have effect in relation to the reference as if the | |
period for making a determination which is specified in subsection (5) of that | |
section were such period (if any) as may be agreed between— | |
(a) OFCOM; and | 20 |
(b) the other regulatory authorities within whose jurisdiction the matter | |
falls. | |
185 Resolution of referred disputes | |
(1) Where OFCOM make a determination for resolving a dispute referred to them | |
under this Chapter, their only powers are those conferred by this section. | 25 |
(2) Their main power (except in the case of a dispute relating to rights and | |
obligations conferred or imposed by or under the enactments relating to the | |
management of the radio spectrum) is to do one or more of the following— | |
(a) to make a declaration setting out the rights and obligations of the | |
parties to the dispute; | 30 |
(b) to give a direction fixing the terms or conditions of transactions | |
between the parties to the dispute; | |
(c) to give a direction imposing an obligation, enforceable by the parties to | |
the dispute, to enter into a transaction between themselves on the terms | |
and conditions fixed by OFCOM; and | 35 |
(d) for the purpose of giving effect to a determination by OFCOM of the | |
proper amount of a charge in respect of which amounts have been paid | |
by one of the parties of the dispute to the other, to give a direction, | |
enforceable by the party to whom the sums are to be paid, requiring the | |
payment of sums by way of adjustment of an underpayment or | 40 |
overpayment. | |
(3) Their main power in the excepted case is just to make a declaration setting out | |
the rights and obligations of the parties to the dispute. | |
(4) Nothing in this section prevents OFCOM from exercising the following powers | |
in consequence of their consideration under this Chapter of any dispute— | 45 |
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