Clause 375: Further provision in connection with newspaper mergers

781.     Subsection (1) of this clause gives effect to Schedule 16, which contains further amendments in connection with newspaper mergers.

782.     Subsection (2) extends to the provisions of this Chapter of the Bill and its related repeals the provisions of section 276(2) and (3) and 277 EA 2002, which gives the Secretary of State the power to make by order supplementary, incidental or consequential provisions for the purposes of, or in consequence of, or for giving full effect to, the EA 2002. Subsection (3) clarifies, for the avoidance of doubt, that this includes the power to modify the EA 2002.

PART 6: MISCELLANEOUS AND SUPPLEMENTAL

Clause 376: Annual report on the Secretary of State's functions

783.     This clause requires the Secretary of State to prepare and lay before Parliament annual reports about the performance of her functions under the following legislation: this Bill, the enactments relating to the management of the radio spectrum not part of this Bill, the Office of Communications Act 2002 and the Broadcasting Acts 1990 and 1996. The first report must be prepared as soon as reasonably practicable after the first anniversary of the first order under clause 2 transferring functions to OFCOM. The enactments relating to the management of the radio spectrum, in addition to Chapter 2 of Part 2 of the Bill, are the Wireless Telegraphy Acts 1949, 1967 and 1998, the Marine, &c., Broadcasting (Offences) Act 1967 and Part 6 of the Telecommunications Act 1984.

Clause 377: Review of media ownership

784.     OFCOM are required to carry out regular reviews of the operation of all media ownership and news provider provisions. OFCOM will provide a report on every review to the Secretary of State, including recommendations on whether the Secretary of State should exercise the powers available to modify, repeal or revoke rules contained in enactments and by secondary legislation. OFCOM must publish every report in such a manner that it is brought to the attention of those members who OFCOM feel are likely to be affected by it. The first review must be carried out no more than 3 years after the commencement of this clause, and subsequent reviews must be carried out at least every 3 years.

Clause 378: Penalties imposed by OFCOM

785.     This clause requires OFCOM to prepare, publish and keep up-to-date guidelines for determining the penalties to be imposed by them under the Bill or any other enactment except the Competition Act 1998. Before publishing any guidelines, OFCOM must consult the Secretary of State and other appropriate persons. When determining the amount of any penalty to be imposed OFCOM must have regard to their published guidelines.

Clause 379: General restrictions on disclosure of information

786.     With the exception of information obtained in accordance with section 196 of the Broadcasting Act 1990 (powers of entry and search, under which stricter rules apply), this clause imposes limits on the disclosure of information relating to the affairs of any particular business obtained under this Bill, the other enactments relating to the management of the radio spectrum and the Broadcasting Acts 1990 and 1996. Subsection (1) prohibits the disclosure of such information while the business in question is still being carried on, unless consent has been obtained from the person carrying on that business.

787.     Subsections (2) to (5) provide for a limited number of exemptions from this prohibition where the disclosure satisfies certain criteria. Examples of exempt disclosures include those required to facilitate the carrying out by OFCOM of their duties; disclosures necessary for the carrying out by Ministers, the OFT, the Competition Commission, the Consumer Panel or the Welsh Authority of duties under this Bill or other specified enactments; and disclosures made in connection with civil proceedings brought under this Bill or other specified enactments.

788.     In addition, subsection (6) provides that this clause will not (i) limit information that may be published by OFCOM under clauses 14 and 23 as results of research or as information or advice, in the Secretary of state's annual report under clause 376 or in reports by OFCOM under any other provision of this Bill or the Office of Communications Act 2002; (ii) prevent the disclosure of information for the purposes of a report of legal proceedings or (iii) apply to any information that has already been published or made public under (i) or (ii).

789.     Subsection (10) makes it an offence for any person to disclose information in contravention of this clause.

Clause 380: Service of notifications and other documents

790.     When any person is authorised or required to send a notification and/or document to another person under this Bill, the Office of the Communications Act 2002, the enactments relating to radio spectrum management not contained in this Bill, Schedule 2 to the Telecommunications Act 1984 or the Broadcasting Acts 1990 and 1996, it may be delivered, left at the proper address or sent by post.

*The meaning of proper address is given in subsection (7) and (8).

791.     When the recipient is a company, a partnership or unincorporated association, the notification and/or document must be addressed to the person(s) specified, respectively, in subsections (4), (5) and (6).

Clause 381: Notifications and documents in electronic form

792.     This clause applies where a person is authorised under clause 380 to give or send a notification or other document by delivering it to another person and does so either by transmitting it electronically by means of an electronic communications network or transmitting it by other means but in a form that means that other apparatus must be used to make it intelligible (e.g. sending a computer disk by post). If the intended recipient is not OFCOM, he must have agreed with the sender to that the notification and/or document may be delivered in that way and form (and not have withdrawn his agreement), and must have provided the sender with his address and other information needed to send them.

793.     If the intended recipient is OFCOM, OFCOM must have indicated their agreement to receive the notification and/or document in the form in question and the thing transmitted and the means of transmission must comply with any conditions and procedures determined and published by OFCOM. When transmitting a notification and/or document, OFCOM may determine the means of transmission used and the form in which they may be transmitted.

Clause 382: Timing and location of things done electronically

794.     The Secretary of State may by order make provision for determining the times and places at which things are done electronically under this Bill, the Office of the Communications Act 2002, the enactments relating to radio spectrum management not contained in this Bill, Schedule 2 to the Telecommunications Act 1984 and the Broadcasting Acts 1990 and 1996. The Secretary of State may also specify how anything carried out electronically for the purposes of those Acts, including any requirements relating to time and place, may be proved in legal proceedings.

Clause 383: Purchase of Duchy of Lancaster land

795.     This clause gives the Duchy of Lancaster a general power to sell land to persons who provide public electronic communications networks.

Clause 384: Repeal of certain provisions of the Telecommunications Act 1984

796.     This clause will repeal the spent provisions dealing with the privatisation of BT set out in sections 60, 61(1) to (6), 62, 63(1) to (4), 64 to 67, 69 to 71, 72(2), (4) and (5) and 73 of the Telecommunications Act 1984. This clause also amends section 68(2) of the 1984 Act to reflect the fact that the only outstanding liability of British Telecommunications plc for which the Secretary of State might be responsible is the payment of pensions, and repeals sections 93 and 97 of the Telecommunications Act 1984.

Section 93 of the 1984 Act allows the Secretary of State (with the consent of the Treasury) to make grants towards fees or expenses incurred in the development or use of apparatus that is designed or adapted for disabled persons. Section 97 allows local authorities to contribute towards the cost of the provision by public telecommunications operators of telecommunications facilities that they consider to be of benefit to their area.

Clause 385: Expenses

797.     Any expenditure by the Secretary of State in carrying out her functions under the Bill, and any increase caused by this Bill in sums payable under other Acts, shall be met from money provided by Parliament.

Clause 386: Destination of licence fees and penalties

798.     Where OFCOM receive money in any of the circumstances listed in subsection (1), they must pay it into the Consolidated Fund of the United Kingdom or Northern Ireland in accordance with subsection (2). The circumstances in subsection (1) include the imposition by OFCOM of a fine under Chapter 1 of Part 2, clause 170 or Part 3 of this Bill, Part 1 or 3 of the 1990 Act or Part 1 or 2 of the 1996 Act and the receipt of fees for auctioned telephone numbers, of spectrum fees under the Wireless Telegraphy Act 1998 (c. 6) and of fees paid to OFCOM under a Broadcasting Act licence for the first year falling within the period for which the licence is in force.

799.     OFCOM must prepare an annual account that shows the amounts received by them and the sums paid into the Consolidated Funds of the United Kingdom and Northern Ireland. The report must be sent to the Comptroller and Auditor General, who must certify and report on the account. He must also lay a copy of OFCOM's annual account and his report before each House of Parliament.

Clause 387: Power of Secretary of State to make orders and regulations

800.     This clause sets out how the Secretary of State is to exercise her powers to make orders or regulations under the Bill (other than those conferred by Schedule 4), and makes additional provisions in respect of these powers.

Clause 388: Regulations and orders made by OFCOM

801.     This clause sets out how OFCOM are to exercise their powers to make orders or regulations under the provisions in the Bill and provisions inserted in other Acts which apply this clause, and makes additional provision in respect of these powers. The orders and regulations concerned must be made by statutory instrument; and where the provision in the Bill and provisions inserted in other Acts under which the instrument is made provides for it to be laid before Parliament, OFCOM must send it to the Secretary of State for that to be done. Subsection (6) provides that OFCOM must allow a period of at least one month for representations to be made on any proposal by them to make an order or regulations under a provision in the Bill and provisions inserted in other Acts which applies this clause.

Clause 389: Criminal liability of company directors etc.

802.     This clause provides that where an offence under this Bill, the Wireless Telegraphy Act 1949, the Marine, &c., Broadcasting (Offences) Act 1967, or the Telecommunications Act 1984 is committed by a body corporate, the directors, managers, secretary or other officers of that body corporate (including, in certain cases, its members) will also be liable for prosecution if it is proved that they had given their consent to the offence, had connived in its commission or if the commission is attributable to neglect on the part of the director.

Clause 390: General interpretation

803.     This clause provides for interpretation of defined terms in the Bill.

Clause 391: Minor and consequential amendments, transitionals and repeals

804.     Schedule 17, which provides for minor and consequential amendments to other legislation, and Schedule 18, which contains transitional provisions in connection with other legislation, shall have effect. Furthermore, the provisions set out in Schedule 19 are repealed or revoked as specified in that Schedule. These schedules are described in more detail below. Subsections (2), (3) and (5) also give the Secretary of State a limited power and in the case of some local legislation a duty to make consequential amendments of other legislation. Subsection (4) confers a further power to make consequential modifications to local enactments and subordinate legislation.

Clause 392: Pre-consolidation amendments

805.     The Secretary of State may by order modify enactments relating to the management of the radio spectrum (as defined in clause 390) and the enactments relating to broadcasting (the Broadcasting Acts 1990 and 1996, Part 3 of the Bill and other provisions of the Bill dealing with them) in order to facilitate consolidation. An order may not be made unless a Bill for repealing and re-enacting the enactments has been presented to Parliament.

Clause 393: Transitional provision for anticipatory carrying out of functions

806.     This clause applies where an order made under clause 395 bringing into force any of the following provisions of the Bill: (i) a provision of Part 2 of the Bill, (ii) a provision of Chapter 1 of Part 5; or (iii) a provision of Part 1 or 6 relating to a provision of Part 2 or of Chapter 1 of Part 5 or any enactment relating to the management of the radio spectrum, states that such a provision is brought into force for the purposes of enabling specified networks and services functions, or specified spectrum functions, to be carried out during the transitional period by the Director General of Telecommunications or the Secretary of State.

807.     Any provision brought into force during the transitional period has effect as if references in that provision to OFCOM and references to OFCOM inserted by that provision in any other enactment were references to either the Director General of Telecommunications or the Secretary of State, as the case may be.

*Subsection (6) defines the transitional period. Subsections (7) and (8), respectively, define networks and services functions and spectrum functions.

808.     This clause should be read with paragraph 2 of Schedule 18, which provides that steps taken by the Secretary of State or OFCOM before a power or duty is conferred or imposed on either of them or transferred to OFCOM are to be treated as satisfying any requirement of that power or duty for those steps to be taken, and also provides for steps taken by the Director General of Telecommunications or the Secretary of State when clause 393 applies.

809.     The expectation is that the provisions of the Bill which implement the four EC Communications Directives will need to be brought into force very quickly between Royal assent and the date on which those Directives must be implemented, 25 July 2003. It is unlikely that the necessary steps under the Bill for OFCOM to be able to exercise its functions under those provisions will have been completed by that date. As a result, those functions are likely initially to be exercised by the Director General of Telecommunications and the Secretary of State under clause 393; and they will have had to have taken preparatory steps in advance under paragraph 2 of Schedule 18.

Clause 394: Application of enactments to territorial sea and other waters

810.     This clause permits Her Majesty by an Order in Council to apply the provisions of Part 2 of the Bill, the enactments relating to the management of the radio spectrum not contained in Part 2 of the Bill and any related provision in Chapter 1 of Part 5 of the Bill to the territorial sea and other waters of the United Kingdom. The elaboration of the power set out in clause 387(3) applies.

Clause 395: Short title, commencement and extent

811.     This clause gives the Secretary of State an order-making power to bring the provisions of this Bill and the Schedules into force on different days for different purposes, save for this clause, and clauses 27(1) to (4) and (6) and 390, which will come into force upon Royal Assent. It also provides that the Bill will extend to Northern Ireland and that it may, by Order in Council, be extended to the Channel Islands and the Isle of Man.

SCHEDULES

Schedule 1: Functions transferred to OFCOM

812.     This is described in more detail in the notes to clause 2.

Schedule 2: Transfer schemes

813.     This is described in more detail in the notes to clause 26. The property, rights and liabilities capable of being transferred under Paragraph 1 of the Schedule is intended to include the rights and liabilities of the ITC as the Principal Employer of ITC Pension Plan.

Schedule 3: Amendments of Schedule 2 to the Telecommunications Act 1984

814.     This Schedule (together with clauses 102 to 115) amends the telecommunications code (set out in Schedule 2 to the Telecommunications Act 1984) in order to translate it into a code applicable to apparatus used in electronic communications networks and services. - It will become known as the 'electronic communications code'. The electronic communications code is designed to facilitate the installation and maintenance of electronic communications networks. It confers rights on operators to install and maintain apparatus in, over or under land and results in considerably simplified planning procedures, similar to those given to other utilities. The only substantive changes are to enable the application of the electronic communications code to persons who provide systems of conduits that are to be used for the provision of an electronic communications network, but who do not actually provide an electronic communications network themselves; and to allow apparatus to be shared without either of the sharers being in breach of their obligations under the code because of what the other is allowed to do. The other change is the addition of a paragraph 29 which encourages the sharing of apparatus, this new provision described in more detail in the notes on Clause 102.

Schedule 4: Compulsory purchase and entry for exploratory purposes

815.     This is described in more detail in the notes to clause 114.

Schedule 5: Procedure for grants of recognised spectrum access

816.     This is described in more detail in the notes to clause 154.

Schedule 6: Fixed penalties for wireless telegraphy offences

817.     This is described in more detail in the notes to clause 175.

Schedule 7: Seizure and forfeiture of apparatus

818.     This is described in more detail in the notes to clause 177.

Schedule 8: Decisions not subject to appeal

819.     This Schedule lists the types of decision taken by OFCOM and the Secretary of State that cannot be appealed under Chapter 3 of Part 2 of the Bill (see also the notes to clause 187). These include certain decisions taken under the Bill and also decisions under the Wireless Telegraphy Acts of 1949 and 1998. They also include decisions to institute, bring or carry on any criminal or civil proceedings, or to carry out any preliminary steps towards this.

Schedule 9: Arrangements about carrying on of C4C's activities

820.     This is described in more detail in the notes on clause 194.

Schedule 10: Licensing the public teletext service.

821.     This schedule is described in the notes on clause 214.

Schedule 11: Approval, imposition and modification of networking arrangements

822.     This is described in more detail in the notes on clause 284.

Schedule 12: Corresponding obligations of the BBC and Welsh Authority

823.     This Schedule sets out obligations that correspond to those in the regulatory regime for licensed providers and apply to the BBC and the Welsh Authority. It provides that the BBC is under a duty to publicise any procedures established by OFCOM or the BBC for the handling and resolution of complaints about the observance by the BBC of standards set under clause 307. The BBC is also under a duty to ensure that at least 25 per cent of programmes specified by the Secretary of State as 'qualifying programmes' are made up of a range and diversity of independent productions.

824.     This Schedule also sets out a number of obligations of the Welsh Authority. Paragraph 3 sets out the duty of the Authority to secure that each of their public service remits for S4C, S4C Digital and other services authorised by the Secretary of State under clause 200 is fulfilled. The public service remits of the Welsh Authority may be amended by order of the Secretary of State. However, before making any such amendment the Secretary of State must consult the Welsh Authority and, if the order relates to programmes that are not in Welsh, the Channel 4 Corporation. Any order amending the public service remits of S4C or S4C Digital must be consistent with the requirement that those services should further the dissemination of information, education and entertainment and should include programmes a substantial proportion of which are in Welsh. Paragraph 4 requires the Authority to prepare an annual statement of programme policy, and to monitor their performance against the proposals contained therein. Such proposals must include the means by which the Authority intend to secure that the public service remits for their services are to be fulfilled. Each statement must also contain a report on the Authority's performance in carrying out the proposals they set themselves in the previous such statement. When preparing any statement the Authority must consider any guidance by OFCOM that is in force for the purposes of clause 258 and any reports previously published under clause 256.

825.     Paragraph 5 imposes must-offer obligations on the Welsh Authority in relation to its public digital services, requiring them to make such services available for broadcast or distribution by every appropriate network and for inclusion in every satellite service available for reception in Wales. The Authority must do their best to ensure that the arrangements for broadcast of its public digital services results in their being available free of charge to as many of the intended audience for any given service as is practicable. "Intended audience" is defined in sub-paragraph (8). Paragraph 6 places a duty on the Authority to join with the providers of other must-provide services to meet the requirements of clause 266 to secure the reception of such services free of charge in areas where they would otherwise not be available.

826.     Paragraphs 7 and 8 detail the programming quotas for independent and for original productions that are to be secured by the Welsh Authority in relation to their designated public services (which, for these purposes, are to be taken together). The proportion of programming to be made up of original productions is to be agreed between OFCOM and the Welsh Authority, with a power of direction for OFCOM in the absence of an agreement.

827.     Paragraph 9 provides that the Welsh Authority is under a duty to ensure that their designated public services broadcast high quality news and current affairs programmes, at intervals throughout the period for which the service is provided and at times that include peak viewing times. Peak viewing times, for the purposes of paragraphs 8 and 9, will be determined by agreement between OFCOM and the Authority, with a power of direction for OFCOM in the absence of an agreement.

828.     Paragraph 10 requires the Welsh Authority to grant to the public teletext provider, on payment of a reasonable charge, access to the facilities reasonably required for the provision of the public teletext service. In the event of a dispute about charges, the amount is to be determined by OFCOM.

829.     Paragraph 12 provides that the Welsh Authority is under a duty to ensure that S4C and S4C Digital observe the programme standards set under clause 307. Paragraph 12 also requires the Authority to comply with a direction by OFCOM with respect to the establishment of complaints procedures relating to programme standards under clause 307.

830.     Paragraph 13 requires the Authority to comply with directions by OFCOM in relation to the exclusion of advertisements or types of sponsorship from its public television services. The Authority is also required, under paragraph 15, to comply with directions by OFCOM as to the amount of advertisements, the interval between them and the frequency of advertising breaks.

831.     Paragraph 14 gives OFCOM the power to direct the Authority to broadcast a correction or statement of findings for a breach of programme or advertising standards. Paragraph 19 gives OFCOM the power, after consulting the Authority, to issue directions to the Authority to ensure compliance with all relevant international obligations. The Authority is required to comply with such directions.

832.     Paragraph 16 requires the Welsh Authority to secure the observance of the fairness code for the time being in force under section 107 of the Broadcasting Act 1996. Paragraph 17 requires the Welsh Authority to include party political broadcasts and referendum campaign broadcasts in their designated public services. They must also draft and publish a document setting out their policy with regard to such broadcasts and review and revise this policy periodically.

833.     Paragraph 18 sets out the duty of the Welsh Authority to publicise OFCOM's functions under Part 5 of the Broadcasting Act 1996 in relation to the Authority and any procedures established for the handling of complaints about the observance by the Authority of standards set under clause 307.

834.     Finally, paragraphs 20 and 21 set out the duty of the Welsh Authority to observe the code under clause 293 of the Bill when providing services for the deaf and visually impaired, and to promote equality of opportunity.