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Communications Bill


Communications Bill
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                  (i)                 by means of an electronic communications network; or

                  (ii)                by other means but in a form that nevertheless requires the use

of apparatus by the recipient to render it intelligible.

     (2)    The transmission has effect for the purposes of the enactments specified in

section 380(2) as a delivery of the notification or other document to the

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recipient, but only if the requirements imposed by or under this section are

complied with.

     (3)    Where the recipient is OFCOM—

           (a)           they must have indicated their willingness to receive the notification or

other document in a manner mentioned in subsection (1)(b);

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           (b)           the transmission must be made in such manner and satisfy such other

conditions as they may require; and

           (c)           the notification or other document must take such form as they may

require.

     (4)    Where the person making the transmission is OFCOM, they may (subject to

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subsection (5)) determine—

           (a)           the manner in which the transmission is made; and

           (b)           the form in which the notification or other document is transmitted.

     (5)    Where the recipient is a person other than OFCOM—

           (a)           the recipient, or

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           (b)           the person on whose behalf the recipient receives the notification or

other document,

            must have indicated to the person making the transmission the recipient’s

willingness to receive notifications or documents transmitted in the form and

manner used.

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     (6)    An indication to any person for the purposes of subsection (5)—

           (a)           must be given to that person in such manner as he may require;

           (b)           may be a general indication or one that is limited to notifications or

documents of a particular description;

           (c)           must state the address to be used and must be accompanied by such

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other information as that person requires for the making of the

transmission; and

           (d)           may be modified or withdrawn at any time by a notice given to that

person in such manner as he may require.

     (7)    An indication, requirement or determination given, imposed or made by

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OFCOM for the purposes of this section is to be given, imposed or made by

being published in such manner as they consider appropriate for bringing it to

the attention of the persons who, in their opinion, are likely to be affected by it.

     (8)    Subsection (9) of section 380 applies for the purposes of this section as it applies

for the purposes of that section.

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 382   Timing and location of things done electronically

     (1)    The Secretary of State may by order make provision specifying, for the

purposes of the enactments specified in section 380(2), the manner of

determining—

           (a)           the times at which things done under those enactments by means of

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electronic communications networks are done; and

 

 

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           (b)           the places at which such things are so done, and at which things

transmitted by means of such networks are received.

     (2)    The provision made by subsection (1) may include provision as to the country

or territory in which an electronic address is to be treated as located.

     (3)    An order made by the Secretary of State may also make provision about the

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manner of proving in any legal proceedings—

           (a)           that something done by means of an electronic communications

network satisfies the requirements of the enactments specified in

section 380(2) for the doing of that thing; and

           (b)           the matters mentioned in subsection (1)(a) and (b).

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     (4)    An order under this section may provide for such presumptions to apply

(whether conclusive or not) as the Secretary of State considers appropriate.

Other miscellaneous provisions

 383   Purchase of Duchy of Lancaster land

     (1)    The Chancellor and Council of the Duchy of Lancaster may, if they think fit,

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agree with a person who provides a public electronic communications network

for the sale, and absolutely make sale, for such sum of money as appears to

them sufficient consideration for the same, of any land which—

           (a)           belongs to Her Majesty in right of the Duchy of Lancaster; and

           (b)           is land which that person seeks to acquire for, or in connection with, the

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provision of his network.

     (2)    In this section “public electronic communications network” has the same

meaning as in Chapter 1 of Part 2.

 384   Repeal of certain provisions of the Telecommunications Act 1984

     (1)    The Telecommunications Act 1984 (c. 12) shall be amended as follows.

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     (2)    In Part 5 (transfer of undertakings of British Telecommunications), the

following provisions (which include spent provisions) shall cease to have

effect—

           (a)           section 60;

           (b)           section 61(1) to (6);

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           (c)           section 62;

           (d)           section 63(1) to (4);

           (e)           sections 64 to 67;

           (f)           section 69 to 71;

           (g)           sections 72(2), (4) and (5); and

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           (h)           section 73.

     (3)    In section 68(2) (liability of Secretary of State on winding up), after “any

outstanding liability of the successor company” there shall be inserted “for the

payment of pensions”.

     (4)    In Part 7 (miscellaneous and supplemental) the following provisions shall

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cease to have effect—

           (a)           section 93 (grants to promote interests of disabled persons); and

 

 

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           (b)           section 97 (contributions by local authorities towards the provision of

telecommunications facilities).

Supplemental

 385   Expenses

There shall be paid out of money provided by Parliament—

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           (a)           any expenditure incurred by the Secretary of State for or in connection with

the carrying out of any of his functions under this Act; and

           (b)           any increase attributable to this Act in the sums which are payable out of

money so provided under any other Act.

 386   Destination of licence fees and penalties

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     (1)    This section applies to the following amounts—

           (a)           an amount paid to OFCOM in respect of a penalty imposed by them under

Chapter 1 of Part 2 (including a penalty imposed by virtue of section 186(5));

           (b)           so much of an amount paid to OFCOM under numbering conditions in respect

of an allocation of telephone numbers as is an amount determined by reference

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to an indication given in response to an invitation such as is mentioned in

section 54(5)(a);

           (c)           an amount paid to OFCOM in pursuance of an obligation imposed by or under

the Wireless Telegraphy Act 1998 (c. 6);

           (d)           an amount paid to OFCOM in respect of a penalty imposed by them under

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section 170;

           (e)           a cash bid amount paid to OFCOM under a Broadcasting Act licence for the

first year falling within the period for which the licence is in force;

           (f)           an amount paid to OFCOM under such a licence for a subsequent year as the

amount equal to a cash bid amount increased by the appropriate percentage;

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           (g)           an amount paid to OFCOM under such a licence as an amount representing a

percentage of relevant revenue for an accounting period;

           (h)           an amount paid to OFCOM in respect of a penalty imposed by them under

Part 1 or 3 of the 1990 Act, Part 1 or 2 of the 1996 Act or Part 3 of this Act.

     (2)    Where OFCOM receive an amount to which this section applies, it must be paid into

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the appropriate Consolidated Fund; but this subsection does not apply to an amount

which is required by OFCOM for making an adjustment in respect of an overpayment.

     (3)    The reference in subsection (2) to the payment of an amount into the appropriate

Consolidated Fund—

           (a)           in the case of an amount received in respect of matters appearing to OFCOM

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to have no connection with Northern Ireland, is a reference to the payment of

the amount into the Consolidated Fund of the United Kingdom;

           (b)           in the case of an amount received in respect of matters appearing to OFCOM

to have a connection with Northern Ireland but no connection with the rest of

the United Kingdom, is a reference to the payment of the amount into the

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Consolidated Fund of Northern Ireland; and

           (c)           in any other case, is a reference to the payment of the amount, in such

proportions as OFCOM consider appropriate, into each of those Funds.

     (4)    OFCOM must, in respect of each financial year, prepare an account showing—

 

 

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           (a)           the amounts to which this section applies that have been received by

them during that year; and

           (b)           the sums paid into the Consolidated Funds of the United Kingdom and

Northern Ireland respectively under this section in respect of those

amounts,

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     (5)           OFCOM must send that account to the Comptroller and Auditor General not

later than the end of the month of November following the financial year to

which it relates.

     (6)    The Comptroller and Auditor General must examine, certify and report on the

account and lay copies of it, together with his report, before each House of

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Parliament.

     (7)    In this section—

                    “the appropriate percentage” has the same meaning as in section 19 of the

1990 Act;

                    “cash bid amount” means an amount specified in a cash bid for a

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Broadcasting Act licence or the amount determined by OFCOM for the

purposes of any provision of the 1990 Act or this Part to be what would

have been the amount of a cash bid for a licence;

                    “financial year” has the same meaning as in the Schedule to the Office of

Communications Act 2002 (c. 11);

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                    “numbering conditions” means conditions the setting of which is

authorised by section 54 or 55; and

                    “relevant revenue” means any of the following—

                  (a)                 the amount which for the purposes of section 19, 52(1), 102(1) or

118 (1) of the 1990 Act is the amount of qualifying revenue for

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an accounting period;

                  (b)                 the amount which for the purposes of section 13(1) or 55(1) of

the 1996 Act is the amount of multiplex revenue for an

accounting period; or

                  (c)                 an amount which for the purposes of paragraph 7 of Schedule

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10 to this Act is the amount of qualifying revenue for an

accounting period.

 387   Power of Secretary of State to make orders and regulations

     (1)    Every power conferred by this Act on the Secretary of State to make orders or

regulations, other than the powers conferred by Schedule 4, is a power

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exercisable by statutory instrument.

     (2)    A statutory instrument containing an order or regulations made in exercise of

any such power, other than—

           (a)           an order under section 27 or 395,

           (b)           an order containing a direction under section 151, or

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           (c)           any order that is required, by any provision of this Act, to be laid before

Parliament and approved in draft,

            shall be subject to annulment in pursuance of a resolution of either House of

Parliament.

     (3)    Every power of the Secretary of State to make an order or regulations under

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this Act, other than an order under section 27 or 395 or an order made in

exercise of a power conferred by Schedule 4, includes power—

 

 

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           (a)           to make different provision for different cases (including different

provision in respect of different areas);

           (b)           to make provision subject to such exemptions and exceptions as the

Secretary of State thinks fit; and

           (c)           to make such incidental, supplemental, consequential and transitional

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provision as the Secretary of State thinks fit.

 388   Regulations and orders made by OFCOM

     (1)    This section applies to any power of OFCOM to make regulations or to make

an order or scheme if that power is one to which this section is expressly

applied.

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     (2)    The powers to which this section applies shall be exercisable by statutory

instrument, and the Statutory Instruments Act 1946 (c. 36) is to apply in

relation to those powers as if OFCOM were a Minister of the Crown.

     (3)    Where an instrument made under a power to which this section applies falls to

be laid before Parliament, OFCOM must, immediately after it is made, send it

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to the Secretary of State for laying by him.

     (4)    Before making any regulations or order under a power to which this section

applies, OFCOM must—

           (a)           give a notice of their proposal to do so to such persons representative

of the persons appearing to OFCOM to be likely to be affected by the

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implementation of the proposal as OFCOM think fit;

           (b)           publish notice of their proposal in such manner as they consider

appropriate for bringing it to the attention of the persons who, in their

opinion are likely to be affected by it and are not given notice by virtue

of paragraph (a); and

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           (c)           consider any representations that are made to OFCOM, before the time

specified in the notice.

     (5)    A notice for the purposes of subsection (4) must—

           (a)           state that OFCOM propose to make the regulations or order in

question;

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           (b)           set out the general effect of the regulations or order;

           (c)           specify an address from which a copy of the proposed regulations or

order may be obtained; and

           (d)           specify a time before which any representations with respect to the

proposal must be made to OFCOM.

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     (6)    The time specified for the purposes of subsection (5)(d) must be a time before

the end of the period of one month beginning with the day after the latest day

on which the notice is given or published for the purposes of subsection (4).

     (7)    Every power of OFCOM to which this section applies includes power—

           (a)           to make different provision for different cases (including different

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provision in respect of different areas);

           (b)           to make provision subject to such exemptions and exceptions as

OFCOM think fit; and

           (c)           to make such incidental, supplemental, consequential and transitional

provision as OFCOM think fit.

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     (8)    The Documentary Evidence Act 1868 (c. 37) (proof of orders and regulations

etc.) shall have effect as if—

           (a)           OFCOM were included in the first column of the Schedule to that Act;

           (b)           OFCOM and persons authorised to act on their behalf were mentioned

in the second column of that Schedule.

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 389   Criminal liability of company directors etc.

     (1)    Where an offence under any enactment to which this section applies is

committed by a body corporate and is proved to have been committed with the

consent or connivance of, or to be attributable to any neglect on the part of—

           (a)           a director, manager, secretary or other similar officer of the body

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corporate, or

           (b)           a person who was purporting to act in any such capacity,

            he (as well as the body corporate) is guilty of that offence and shall be liable to

be proceeded against and punished accordingly.

     (2)    Where an offence under any enactment to which this section applies—

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           (a)           is committed by a Scottish firm, and

           (b)           is proved to have been committed with the consent or connivance of, or

to be attributable to any neglect on the part of a partner of the firm,

            he (as well as the firm) is guilty of that offence and shall be liable to be

proceeded against and punished accordingly.

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     (3)    In this section “director”, in relation to a body corporate whose affairs are

managed by its members, means a member of the body corporate.

     (4)    The enactments to which this section applies are every enactment contained

in—

           (a)           this Act;

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           (b)           the Wireless Telegraphy Act 1949 (c. 54);

           (c)           the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41);

           (d)           the Wireless Telegraphy Act 1967 (c. 72); or

           (e)           the Telecommunications Act 1984 (c. 12).

     (5)    Section 14(2) of the Wireless Telegraphy Act 1949 (which is superseded by this

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section) shall cease to have effect.

 390   General interpretation

     (1)    In this Act, except in so far as the context otherwise requires—

                    “the 1990 Act” means the Broadcasting Act 1990 (c. 42);

                    “the 1996 Act” means the Broadcasting Act 1996 (c. 55);

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                    “access” is to be construed in accordance with subsection (4);

                    “apparatus” includes any equipment, machinery or device and any wire

or cable and the casing or coating for any wire or cable;

                    “associated facility” has the meaning given by section 28;

                    “the BBC” means the British Broadcasting Corporation;

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                    “body” (without more) means any body or association of persons,

whether corporate or unincorporate, including a firm;

                    “broadcast” means broadcast by wireless telegraphy, and cognate

expressions are to be construed accordingly;

 

 

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                    “Broadcasting Act licence” means a licence under Part 1 or 3 of the 1990

Act or under Part 1 or 2 of the 1996 Act;

                    “business” includes any trade or profession;

                    “C4C” means the Channel Four Television Corporation;

                    “communications provider” means a person who (within the meaning of

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section 28(4)) provides an electronic communications network or

electronic communications service;

                    “the Consumer Panel” means the panel established under section 15;

                    “consumers” has the meaning given by subsection (5);

                    “Content Board” means the committee of OFCOM established and

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maintained under section 11;

                    “contravention” includes a failure to comply, and cognate expressions are

to be construed accordingly;

                    “customers”, in relation to a communications provider or a person who

makes an associated facility available, means the following (including

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any of them whose use or potential use of the network, service or

facility is for the purposes of, or in connection with, a business)—

                  (a)                 the persons to whom the network, service or facility is provided

or made available in the course of any business carried on as

such by the provider or person who makes it available;

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                  (b)                 the persons to whom the communications provider or person

making the facility available is seeking to secure that the

network, service or facility is so provided or made available;

                  (c)                 the persons who wish to be so provided with the network or

service, or to have the facility so made available, or who are

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likely to seek to become persons to whom the network, service

or facility is so provided or made available;

                    “distribute”, in relation to a service, does not include broadcast, and

cognate expressions shall be construed accordingly;

                    “electronic communications network” and “electronic communications

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service” have the meanings given by section 28;

                    “enactment” includes any enactment comprised in an Act of the Scottish

Parliament or in any Northern Ireland legislation;

                    “the enactments relating to the management of the radio spectrum”

means—

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                  (a)                 the Wireless Telegraphy Act 1949 (c. 54);

                  (b)                 the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41);

                  (c)                 the Wireless Telegraphy Act 1967 (c. 72) (except Part 1);

                  (d)                 Part 6 of the Telecommunications Act 1984 (c. 12);

                  (e)                 the Wireless Telegraphy Act 1998 (c. 6);

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                  (f)                 Chapter 2 of Part 2 of this Act; and

                  (g)                 the other provisions of this Act so far as relating to any of the

enactments mentioned in the preceding paragraphs;

                    “frequency” includes frequency band;

                    “holder”, in relation to a Broadcasting Act licence, is to be construed in

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accordance with subsection (7), and cognate expressions are to be

construed accordingly;

                    “information” includes accounts, estimates and projections and any

document;

                    “intelligible” is to be construed in accordance with subsection (9);

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