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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 | 5 |
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); | 10 |
(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 | 15 |
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 | 20 |
(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. | 25 |
(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 | 30 |
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(d) may be modified or withdrawn at any time by a notice given to that | |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 | 35 |
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. | 40 |
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 | 45 |
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 | 5 |
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). | 10 |
(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, | 15 |
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 | 20 |
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. | 25 |
(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); | 30 |
(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 | 35 |
(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 | 40 |
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— | 5 |
(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 | 10 |
(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 | 15 |
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 | 20 |
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; | 25 |
(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 | 30 |
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 | 35 |
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 | 40 |
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, | 5 |
(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 | 10 |
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 | 15 |
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); | 20 |
“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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
(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 | 45 |
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 | 5 |
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. | 10 |
(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 | 15 |
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 | 20 |
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 | 25 |
(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; | 30 |
(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. | 35 |
(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 | 40 |
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. | 45 |
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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. | 5 |
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 | 10 |
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— | 15 |
(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. | 20 |
(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; | 25 |
(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 | 30 |
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); | 35 |
“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; | 40 |
“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 | 5 |
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 | 10 |
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 | 15 |
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; | 20 |
(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 | 25 |
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 | 30 |
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— | 35 |
(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); | 40 |
(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 | 45 |
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); | 50 |
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