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Guidelines as to penalties | |
382 Penalties imposed by OFCOM | |
(1) It shall be the duty of OFCOM to prepare and publish a statement containing | |
the guidelines they propose to follow in determining the amount of penalties | |
imposed by them under provisions contained in this Act or any other | 5 |
enactment apart from the Competition Act 1998 (c. 41). | |
(2) OFCOM may from time to time revise that statement as they think fit. | |
(3) Where OFCOM make or revise their statement under this section, they must | |
publish the statement or (as the case may be) the revised statement in such | |
manner as they consider appropriate for bringing it to the attention of the | 10 |
persons who, in their opinion, are likely to be affected by it. | |
(4) Before publishing a statement or revised statement under this section OFCOM | |
must consult both— | |
(a) the Secretary of State, and | |
(b) such other persons as they consider appropriate, | 15 |
about the guidelines they are proposing to include in the statement. | |
(5) Before determining how to publish a statement or revised statement under this | |
section OFCOM must consult the Secretary of State. | |
(6) It shall be the duty of OFCOM, in determining the amount of any penalty to be | |
imposed by them under this Act or any other enactment (apart from the | 20 |
Competition Act 1998) to have regard to the guidelines contained in the | |
statement for the time being in force under this section. | |
Disclosure of information | |
383 General restrictions on disclosure of information | |
(1) Subject to the following provisions of this section, information with respect to | 25 |
a particular business which has been obtained in exercise of a power conferred | |
by— | |
(a) this Act, | |
(b) the enactments relating to the management of the radio spectrum (so | |
far as not contained in this Act), | 30 |
(c) the 1990 Act, or | |
(d) the 1996 Act, | |
is not, so long as that business continues to be carried on, to be disclosed | |
without the consent of the person for the time being carrying on that business. | |
(2) Subsection (1) does not apply to any disclosure of information which is made— | 35 |
(a) for the purpose of facilitating the carrying out by OFCOM of any of | |
their functions; | |
(b) for the purpose of facilitating the carrying out by any relevant person | |
of any relevant function; | |
(c) for the purpose of facilitating the carrying out by the Comptroller and | 40 |
Auditor General of any of his functions; | |
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(d) for any of the purposes specified in section 17(2)(a) to (d) of the Anti- | |
terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings | |
and investigations); | |
(e) for the purpose of any civil proceedings brought under or by virtue of | |
this Act or any of the enactments or instruments mentioned in | 5 |
subsection (5); or | |
(f) for the purpose of securing compliance with an international | |
obligation. | |
(3) Each of the following is a relevant person for the purposes of this section— | |
(a) a Minister of the Crown and the Treasury; | 10 |
(b) the Scottish Executive; | |
(c) a Northern Ireland department; | |
(d) the Office of Fair Trading; | |
(e) the Competition Commission; | |
(f) the Consumer Panel; | 15 |
(g) the Welsh Authority; | |
(h) a local weights and measures authority in Great Britain; | |
(i) any other person specified for the purposes of this subsection in an | |
order made by the Secretary of State. | |
(4) The following are relevant functions for the purposes of this section— | 20 |
(a) any function conferred by or under this Act; | |
(b) any function conferred by or under any enactment or instrument | |
mentioned in subsection (5); | |
(c) any other function specified for the purposes of this subsection in an | |
order made by the Secretary of State. | 25 |
(5) The enactments and instruments referred to in subsections (2) and (4) are— | |
(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); | |
(d) the Trade Descriptions Act 1968 (c. 29); | 30 |
(e) the Fair Trading Act 1973 (c. 41); | |
(f) the Consumer Credit Act 1974 (c. 39); | |
(g) the Competition Act 1980 (c. 21); | |
(h) the Telecommunications Act 1984 (c. 12); | |
(i) the Consumer Protection Act 1987 (c. 43); | 35 |
(j) the 1990 Act; | |
(k) the 1996 Act; | |
(l) the Wireless Telegraphy Act 1998 (c. 6); | |
(m) the Competition Act 1998 (c. 41); | |
(n) the Enterprise Act 2002 (c. 40); | 40 |
(o) the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 | |
(N.I. 20)); | |
(p) the Control of Misleading Advertisements Regulations 1988 (S.I. 1988/ | |
915). | |
(6) Nothing in this section— | 45 |
(a) limits the matters that may be published under section 14, 23 or 380; | |
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(b) limits the matters that may be included in, or made public as part of, a | |
report made by OFCOM by virtue of a provision of this Act or the | |
Office of Communications Act 2002 (c. 11); | |
(c) prevents the disclosure of anything for the purposes of a report of legal | |
proceedings in which it has been publicly disclosed; | 5 |
(d) applies to information that has been published or made public as | |
mentioned in paragraphs (a) to (c). | |
(7) Nothing in this section applies to information obtained in exercise of the | |
powers conferred by section 196 of the 1990 Act (powers of entry and search). | |
(8) Information obtained by OFCOM in exercise of functions which are exercisable | 10 |
by them concurrently with the Office of Fair Trading under Part 1 of the | |
Competition Act 1998 (c. 41) is subject to Part 9 of the Enterprise Act 2002 (c. | |
40), and not to the preceding provisions of this section. | |
(9) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (restriction | |
on disclosure of information for overseas purposes) shall have effect in relation | 15 |
to a disclosure by virtue of subsection (2)(d) as it applies in relation to a | |
disclosure in exercise of a power to which section 17 of that Act applies. | |
(10) A person who discloses information in contravention of this section is guilty of | |
an offence and shall be liable— | |
(a) on summary conviction, to a fine not exceeding the statutory | 20 |
maximum; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
two years or to a fine, or to both. | |
(11) No order is to be made containing provision authorised by subsection (3) or (4) | |
unless a draft of the order has been laid before Parliament and approved by a | 25 |
resolution of each House. | |
(12) In this section “legal proceedings” means civil or criminal proceedings in or | |
before any court, or proceedings before any tribunal established by or under | |
any enactment. | |
Notifications etc. and electronic working | 30 |
384 Service of notifications and other documents | |
(1) This section applies where provision made (in whatever terms) by or under an | |
enactment specified in subsection (2) authorises or requires— | |
(a) a notification to be given to any person; or | |
(b) a document of any other description (including a copy of a document) | 35 |
to be sent to any person. | |
(2) Those enactments are— | |
(a) this Act; | |
(b) the Office of Communications Act 2002; | |
(c) the enactments relating to the management of the radio spectrum (so | 40 |
far as not contained in this Act); | |
(d) Schedule 2 to the Telecommunications Act 1984 (c. 12); | |
(e) the 1990 Act; and | |
(f) the 1996 Act. | |
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(3) The notification or document may be given or sent to the person in question— | |
(a) by delivering it to him; | |
(b) by leaving it at his proper address; or | |
(c) by sending it by post to him at that address. | |
(4) The notification or document may be given or sent to a body corporate by | 5 |
being given or sent to the secretary or clerk of that body. | |
(5) The notification or document may be given or sent to a firm by being given or | |
sent to— | |
(a) a partner in the firm; or | |
(b) a person having the control or management of the partnership | 10 |
business. | |
(6) The notification or document may be given or sent to an unincorporated body | |
or association by being given or sent to a member of the governing body of the | |
body or association. | |
(7) For the purposes of this section and section 7 of the Interpretation Act 1978 | 15 |
(c. 30) (service of documents by post) in its application to this section, the | |
proper address of a person is— | |
(a) in the case of body corporate, the address of the registered or principal | |
office of the body; | |
(b) in the case of a firm, unincorporated body or association, the address of | 20 |
the principal office of the partnership, body or association; | |
(c) in the case of a person to whom the notification or other document is | |
given or sent in reliance on any of subsections (4) to (6), the proper | |
address of the body corporate, firm or (as the case may be) other body | |
or association in question; and | 25 |
(d) in any other case, the last known address of the person in question. | |
(8) In the case of— | |
(a) a company registered outside the United Kingdom, | |
(b) a firm carrying on business outside the United Kingdom, or | |
(c) an unincorporated body or association with offices outside the United | 30 |
Kingdom, | |
the references in subsection (7) to its principal office include references to its | |
principal office within the United Kingdom (if any). | |
(9) In this section— | |
“document” includes anything in writing; and | 35 |
“notification” includes notice; | |
and references in this section to giving or sending a notification or other | |
document to a person include references to transmitting it to him and to | |
serving it on him. | |
(10) This section has effect subject to section 385. | 40 |
385 Notifications and documents in electronic form | |
(1) This section applies where— | |
(a) section 384 authorises the giving or sending of a notification or other | |
document by its delivery to a particular person (“the recipient”); and | |
(b) the notification or other document is transmitted to the recipient— | 45 |
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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 384(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 384 applies for the purposes of this section as it applies | |
for the purposes of that section. | 40 |
386 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 384(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 384(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 | |
387 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. | |
388 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 | |
389 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. | |
390 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 | 15 |
respect of an allocation of telephone numbers as is an amount | |
determined by reference 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); | 20 |
(d) an amount paid to OFCOM in respect of a penalty imposed by them | |
under 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 | 25 |
as the amount equal to a cash bid amount increased by the appropriate | |
percentage; | |
(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 | 30 |
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 the appropriate Consolidated Fund; but this subsection does not | |
apply to an amount which is required by OFCOM for making an adjustment in | 35 |
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 to have no connection with Northern Ireland, is a reference to | 40 |
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 | 45 |
the amount into the Consolidated Fund of Northern Ireland; and | |
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