[AS AMENDED IN STANDING COMMITTEE E]
Confer functions on the Office of Communications; to make provision about
the regulation of the provision of electronic communications networks and
services and of the use of the electro-magnetic spectrum; to make provision
about the regulation of broadcasting and of the provision of television and
radio services; to make provision about newspaper mergers and, in that
connection, to amend the Enterprise Act 2002; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Functions of OFCOM
Transferred and assigned functions
1 Functions and general powers of OFCOM
(1) The Office of Communications (“OFCOM”) shall have the following
(a) the functions transferred to OFCOM under section 2; and
(b) such other functions as may be conferred on OFCOM by or under any
enactment (including this Act).
(2) OFCOM shall also have any functions in relation to telephone numbers that are
conferred on them by the law of the Isle of Man or of any of the Channel
(3) OFCOM may do anything which appears to them to be incidental or conducive
to the carrying out of their functions, including borrow money.
(4) OFCOM are not to borrow money except with the consent of the Secretary of
State, or in accordance with a general authorisation given by him.
(5) OFCOM’s powers under subsection (3) include, in particular—
(a) power to undertake research and development work in connection
with any matter in relation to which they have functions;
(b) power to promote the carrying out of such research and development
by others, or otherwise to arrange for it to be carried out by others;
(c) power to institute and carry on criminal proceedings in England and
Wales or Northern Ireland for an offence relating to a matter in relation
to which they have functions; and
(d) power, in such cases and in such circumstances as they may think fit, to
make payments (where no legal liability arises) to persons adversely
affected by the carrying out by OFCOM of any of their functions.
(6) In exercise of their powers under subsection (3), OFCOM must establish and
maintain separate offices in each of the following parts of the United
(c) Scotland; and
(d) Northern Ireland.
(7) Part 2 of the Deregulation and Contracting Out Act 1994 (c. 40) (contracting
out) is to have effect in relation to the functions conferred on OFCOM by or
under any enactment as if—
(a) OFCOM were an office holder within the meaning of that Part; and
(b) a power of OFCOM to make subordinate legislation were excluded
from section 69 of that Act to the extent only that it is exercisable by
(8) In this section “telephone numbers” has the same meaning as in Chapter 1 of
2 Transfer of functions of pre-commencement regulators
(1) As from such date as the Secretary of State may appoint for the coming into
force of this section, the functions that are set out in Schedule 1 (functions of
the Secretary of State and of the pre-commencement regulators) shall become
functions of OFCOM in accordance with that Schedule.
(2) References in any enactment to a person who is a person from whom functions
are transferred by virtue of this section are to have effect, so far as necessary for
the purposes of the transfers, as references to OFCOM.
(3) The functions of OFCOM are to include the carrying out of the transferred
functions, at times after the time when they become functions of OFCOM, in
relation to anything occurring before that time.
(4) The provisions of this section have effect subject to—
(a) the modifications made by this Act of the enactments relating to the
transferred functions; and
(b) any express transitional or consequential provisions made by or under
this Act in relation to those enactments.
General duties in carrying out functions
3 General duties of OFCOM
(1) It shall be the duty of OFCOM, in carrying out their functions—
(a) to further the interests of consumers in relevant markets, where
appropriate by promoting competition;
(b) to secure the optimal use for wireless telegraphy of the electro-
(c) to secure the availability throughout the United Kingdom of a wide
range of television and radio services which (taken as a whole) are both
of high quality and calculated to appeal to a variety of tastes and
(d) to secure that standards falling within subsection (2) are applied in the
case of all television and radio services.
(2) The standards are those which provide adequate protection—
(a) to members of the public, from the inclusion of offensive and harmful
material in television and radio services; and
(b) to members of the public and all other persons, from both—
(i) unfair treatment in programmes included in such services; and
(ii) unwarranted infringements of privacy resulting from activities
carried on for the purposes of such services.
(3) In performing their duties under subsection (1), OFCOM must have regard, in
particular, to such of the following as appear to them to be relevant in the
(a) the desirability of promoting competition in relevant markets;
(b) the principles under which regulatory activities should be transparent,
accountable, proportionate, consistent and targeted only at cases in
which action is needed;
(c) the desirability of promoting and facilitating the development and use
of effective forms of self-regulation;
(d) any other principles appearing to OFCOM to represent the best
(e) the desirability of encouraging investment and innovation in relevant
(f) the different needs and interests, so far as the use of the electro-
magnetic spectrum for wireless telegraphy is concerned, of all persons
who may wish to make use of it;
(g) the need to secure that the application in the case of television and radio
services of standards falling within subsection (2) is in the manner that
best guarantees an appropriate level of freedom of expression;
(h) the vulnerability of children and of others whose circumstances appear
to OFCOM to put them in need of special protection;
(i) the needs of persons with disabilities, of the elderly and of those on low
(j) the desirability of preventing crime and disorder;
(k) the opinions of consumers in relevant markets and of members of the
(l) the different interests of persons in the different parts of the United
Kingdom and of those living in rural and in urban areas;
(m) the extent to which, in the circumstances of the case, the furthering or
securing of the matters mentioned in subsection (1) is reasonably
(4) In performing their duty under this section of furthering the interests of
consumers, OFCOM must have regard, in particular, to the interests of those
consumers in respect of choice, price, quality of service and value for money.
(5) Where it appears to OFCOM, in relation to the carrying out of any of the
functions mentioned in section 4(1), that any of their general duties conflict
with one or more of their duties under sections 4, 21 and 22, priority must be
given to their duties under those sections.
(6) Where it appears to OFCOM that any of their general duties conflict with each
other in a particular case, they must secure that the conflict is resolved in the
manner they think best in the circumstances.
(7) This section is subject to sections 360(11) and 361(11) of this Act and to section
119A(4) of the Enterprise Act 2002 (c. 40) (which applies to functions conferred
on OFCOM by Chapter 2 of Part 5 of this Act).
(8) In this section—
“general duties”, in relation to OFCOM, means—
(a) their duties under subsections (1) to (4); and
(b) the duty which, under section 103(5), is to rank equally for the
purposes of subsections (5) and (6) with their duties under this
“relevant markets” means markets for any of the services, facilities,
apparatus or directories in relation to which OFCOM have functions.
4 Duties for the purpose of fulfilling Community obligations
(1) This section applies to the following functions of OFCOM—
(a) their functions under Chapter 1 of Part 2;
(b) their functions under the enactments relating to the management of the
(c) their functions under Chapter 3 of Part 2 in relation to disputes referred
to them under section 180;
(d) their functions under sections 21 and 22 so far as they relate to
information required for purposes connected with matters in relation
to which functions specified in this subsection are conferred on
(e) their functions under section 23 so far as they are carried out for the
purpose of making information available to persons mentioned in
subsection (2)(a) to (c) of that section.
(2) It shall be the duty of OFCOM, in carrying out any of those functions, to act in
accordance with the six Community requirements (which give effect, amongst
other things, to the requirements of Article 8 of the Framework Directive and
are to be read accordingly).
(3) The first Community requirement is a requirement to promote competition—
(a) in relation to the provision of electronic communications networks and
electronic communications services;
(b) in relation to the provision and making available of services and
facilities that are provided or made available in association with the
provision of electronic communications networks or electronic
communications services; and
(c) in relation to the supply of directories capable of being used in
connection with the use of electronic communications networks or
electronic communications services.
(4) The second Community requirement is a requirement to secure that OFCOM’s
activities contribute to the development of the European internal market.
(5) The third Community requirement is a requirement to promote the interests of
all persons who are citizens of the European Union (within the meaning of
Article 17 of the Treaty establishing the European Community).
(6) The fourth Community requirement is a requirement to take account of the
desirability of OFCOM’s carrying out their functions in a manner which, so far
as practicable, does not favour—
(a) one form of electronic communications network, electronic
communications service or associated facility; or
(b) one means of providing or making available such a network, service or
(7) The fifth Community requirement is a requirement to encourage, to such
extent as OFCOM consider appropriate for the purpose mentioned in
subsection (8), the provision of network access and service interoperability.
(8) That purpose is the purpose of securing—
(a) efficiency and sustainable competition in the markets for electronic
communications networks, electronic communications services and
associated facilities; and
(b) the maximum benefit for the persons who are customers of
communications providers and of persons who make such facilities
(9) The sixth Community requirement is a requirement to encourage compliance,
to such extent as OFCOM consider appropriate for the purpose of—
(a) facilitating service interoperability, and
(b) securing freedom of choice for the customers of communications
with the standards mentioned in subsection (10).
(10) Those standards are—
(a) standards or specifications from time to time drawn up and published
in accordance with Article 17 of the Framework Directive;
(b) the standards and specifications from time to time adopted by—
(i) the European Committee for Standardisation,
(ii) the European Committee for Electrotechnical Standardisation;
(iii) the European Telecommunications Standards Institute; and
(c) the international standards and recommendations from time to time
(i) the International Telecommunication Union;
(ii) the International Organisation for Standardisation; or
(iii) the International Electrotechnical Committee.
(11) Where it appears to OFCOM that any of the Community requirements conflict
with each other, they must secure that the conflict is resolved in the manner
they think best in the circumstances.
(12) In this section—
“the Framework Directive” means Directive 2002/21/EC of the European
Parliament and of the Council on a common regulatory framework for
electronic communications networks and services;
“network access” and “service interoperability” each has the same
meaning as in Chapter 1 of Part 2.
5 Directions in respect of networks and spectrum functions
(1) This section applies to the following functions of OFCOM—
(a) their functions under Part 2; and
(b) their functions under the enactments relating to the management of the
radio spectrum that are not contained in that Part.
(2) It shall be the duty of OFCOM to carry out those functions in accordance with
such general or specific directions as may be given to them by the Secretary of
(3) The Secretary of State’s power to give directions under this section shall be
confined to a power to give directions for one or more of the following
(a) in the interests of national security;
(b) in the interests of relations with the government of a country or
territory outside the United Kingdom;
(c) for the purpose of securing compliance with international obligations
of the United Kingdom;
(d) in the interests of the safety of the public or of public health.
(4) The Secretary of State is not entitled by virtue of any provision of this section
to direct OFCOM to suspend or restrict—
(a) a person’s entitlement to provide an electronic communications
network or electronic communications service; or
(b) a person’s entitlement to make available associated facilities.
(5) The Secretary of State must publish a direction under this section in such
manner as appears to him to be appropriate for bringing it to the attention of
the persons who, in his opinion, are likely to be affected by it.
(6) The Secretary of State is not required by subsection (5) to publish a direction,
and he may exclude matter from a direction he does publish, if he considers the
publication of the direction or matter to be—
(a) against the interests of national security; or
(b) against the interests of relations with the government of a country or
territory outside the United Kingdom.
(7) Subsection (4) does not affect the Secretary of State’s powers under section 128.