Wireless Telegraphy Bill [HL]

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Wireless Telegraphy Bill [HL]

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
21

(4)
For the purposes of this section a person is in charge of premises if—
(a)
he is the owner or occupier of the premises; or
(b)
he has, or acts or assists in, the management or control of the premises.
(5)
For the purposes of this section premises are used for unlawful broadcasting if
they are used—
5
(a)
for making an unlawful broadcast; or
(b)
for sending signals for the operation or control of apparatus used for
the purpose of making an unlawful broadcast from another place.
(6)
For the purposes of this section a broadcast is unlawful if—
(a)
it is made by means of the use of a wireless telegraphy station or
10
wireless telegraphy apparatus in contravention of section 8; or
(b)
the making of the broadcast contravenes a provision of Part 5.
(7)
In this section—
“broadcast” has the same meaning as in Part 5;
“premises” includes any place and, in particular, includes—
15
(a)
a vehicle, ship or aircraft; and
(b)
a structure or other object (whether movable or not, and
whether on land or not).
38
Facilitating unauthorised broadcasting
(1)
This section applies in the case of a broadcasting station from which
20
unauthorised broadcasts are made.
(2)
A person commits an offence if—
(a)
he participates in the management, financing, operation or day-to-day
running of the broadcasting station knowing, or having reasonable
cause to believe, that unauthorised broadcasts are made by the station;
25
(b)
he supplies, instals, repairs or maintains wireless telegraphy apparatus
or any other item knowing, or having reasonable cause to believe—
(i)
that the apparatus or other item is to be, or is, used for the
purpose of facilitating the operation or day-to-day running of
the broadcasting station, and
30
(ii)
that unauthorised broadcasts are made by the station;
(c)
he renders any other service to a person knowing, or having reasonable
cause to believe—
(i)
that the rendering of the service to the person will facilitate the
operation or day-to-day running of the broadcasting station,
35
and
(ii)
that unauthorised broadcasts are made by the station;
(d)
he supplies a film or sound recording knowing, or having reasonable
cause to believe, that an unauthorised broadcast of it is to be made by
the broadcasting station;
40
(e)
he makes a literary, dramatic or musical work knowing, or having
reasonable cause to believe, that an unauthorised broadcast of it is to be
made by the broadcasting station;
(f)
he makes an artistic work knowing, or having reasonable cause to
believe, that an unauthorised broadcast including that work is to be
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made by the broadcasting station;

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
22

(g)
he participates in an unauthorised broadcast made by the broadcasting
station knowing, or having reasonable cause to believe, that
unauthorised broadcasts are made by the station;
(h)
he advertises, or invites another to advertise, by means of an
unauthorised broadcast made by the broadcasting station knowing, or
5
having reasonable cause to believe, that unauthorised broadcasts are
made by the station;
(i)
he publishes the times or other details of unauthorised broadcasts
made by the broadcasting station, or (otherwise than by publishing
such details) publishes an advertisement of matter calculated to
10
promote the station (whether directly or indirectly), knowing, or
having reasonable cause to believe, that unauthorised broadcasts are
made by the station.
(3)
For the purposes of this section a person participates in a broadcast only if he
is actually present—
15
(a)
as an announcer;
(b)
as a performer or one of the performers concerned in an entertainment
given; or
(c)
as the deliverer of a speech.
(4)
The cases in which a person is to be taken for the purposes of this section as
20
advertising by means of a broadcast include any case in which he causes or
allows it to be stated, suggested or implied that entertainment included in the
broadcast—
(a)
has been supplied by him; or
(b)
is provided wholly or partly at his expense.
25
(5)
In proceedings for an offence under this section consisting in supplying a thing
or rendering a service, it is a defence for the defendant to prove that he was
obliged, under or by virtue of any enactment, to supply the thing or render the
service.
(6)
A person who commits an offence under this section is liable—
30
(a)
on summary conviction, to imprisonment for a term not exceeding 12
months or to a fine not exceeding the statutory maximum or to both;
(b)
on conviction on indictment, to imprisonment for a term not exceeding
two years or to a fine or to both.
(7)
In the application of subsection (6) to Scotland or Northern Ireland the
35
reference to 12 months is to be read as a reference to six months.
(8)
In this section—
“broadcast” has the same meaning as in Part 5;
“broadcasting station” means a business or other operation (whether or
not in the nature of a commercial venture) that is engaged in the
40
making of broadcasts;
“unauthorised broadcast” means a broadcast made by means of the use of
a wireless telegraphy station or wireless telegraphy apparatus in
contravention of section 8.

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
23

Procedures for contraventions
39
Contravention of terms, etc
(1)
Where OFCOM determine that there are reasonable grounds for believing that
a person is contravening, or has contravened—
(a)
a term, provision or limitation of a wireless telegraphy licence, or
5
(b)
a term, provision or limitation of an exemption under section 8(3),

they may give that person a notification under this section.
(2)
A notification under this section—
(a)
sets out the determination made by OFCOM;
(b)
specifies the term, provision or limitation, and the contravention, in
10
respect of which that determination has been made; and
(c)
specifies the period during which the person notified has an
opportunity of doing the things specified in subsection (3).
(3)
The things are—
(a)
making representations about the matters notified; and
15
(b)
complying with any notified term, provision or limitation of which he
remains in contravention.
(4)
Subject to subsections (5) to (7), the period for doing those things must be the
period of one month beginning with the day after the one on which the
notification was given.
20
(5)
OFCOM may, if they think fit, allow a longer period for doing those things—
(a)
by specifying a longer period in the notification; or
(b)
by subsequently, on one or more occasions, extending the specified
period.
(6)
The person notified has a shorter period for doing those things if a shorter
25
period is agreed between OFCOM and the person notified.
(7)
The person notified also has a shorter period if—
(a)
OFCOM have reasonable grounds for believing that the case is a case of
repeated contravention;
(b)
they have determined that, in those circumstances, a shorter period
30
would be appropriate; and
(c)
the shorter period has been specified in the notification.
40
Repeated contravention
(1)
For the purposes of section 39 a contravention is a repeated contravention, in
relation to a notification with respect to that contravention, if—
35
(a)
in the case of a contravention of a term, provision or limitation of a
wireless telegraphy licence, it falls within subsection (2) or (3); or
(b)
in the case of a contravention of a term, provision or limitation of an
exemption under section 8(3), it falls within subsection (4) or (5).
(2)
A contravention of a term, provision or limitation of a wireless telegraphy
40
licence falls within this subsection if—

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
24

(a)
a previous notification under section 39 has been given in respect of the
same contravention or in respect of another contravention of a term,
provision or limitation of the same licence;
(b)
the person who was given that notification subsequently took steps for
remedying the notified contravention; and
5
(c)
the subsequent notification is given no more than 12 months after the
day of the giving of the previous notification.
(3)
A contravention of a term, provision or limitation of a wireless telegraphy
licence falls within this subsection if—
(a)
the person concerned has been convicted of an offence under section 35
10
in respect of the contravention to which the notification relates or in
respect of another contravention of a term, provision or limitation of
the same licence; and
(b)
the subsequent notification is given before the end of the period of 12
months from the contravention in respect of which that person was
15
convicted of that offence.
(4)
A contravention of a term, provision or limitation of an exemption falls within
this subsection if—
(a)
a previous notification under section 39 has been given in respect of the
same contravention or in respect of another contravention of the same
20
term, provision or limitation;
(b)
the person who was given that notification subsequently took steps for
remedying the notified contravention; and
(c)
the subsequent notification is given no more than 12 months after the
day of the giving of the previous notification.
25
(5)
A contravention of a term, provision or limitation of an exemption falls within
this subsection if—
(a)
the person concerned has been convicted of an offence under section 35
in respect of the contravention to which the notification relates or in
respect of another contravention of the same term, provision or
30
limitation; and
(b)
the subsequent notification is given before the end of the period of 12
months from the contravention in respect of which that person was
convicted of that offence.
(6)
In calculating the periods of 12 months mentioned in subsections (3)(b) and
35
(5)(b), the period between the institution of the criminal proceedings which led
to the conviction and the conclusion of those proceedings is to be left out of
account.
(7)
For the purposes of subsection (6) criminal proceedings are taken to be
concluded when no further appeal against conviction may be brought without
40
the permission of the court and—
(a)
in a case where there is no fixed period within which that permission
can be sought, permission has been refused or has not been sought; or
(b)
in a case where there is a fixed period within which that permission can
be sought, that permission has been refused or that period has expired
45
without permission having been sought.
(8)
References to remedying a contravention include references to—

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
25

(a)
doing any thing the failure to do which, or the failure to do which
within a particular period or before a particular time, constituted the
whole or a part of the contravention;
(b)
paying an amount to a person by way of compensation for loss or
damage suffered by that person in consequence of the contravention;
5
(c)
paying an amount to a person by way of compensation in respect of
annoyance, inconvenience or anxiety to which he has been put in
consequence of the contravention;
(d)
otherwise acting in a manner that constitutes an acknowledgement that
the notified contravention did occur.
10
(9)
References to a contravention of a term, provision or limitation of a wireless
telegraphy licence include references to a contravention of a term, provision or
limitation contained in a previous licence of which the licence in question is a
direct or indirect renewal.
41
Procedure for prosecutions
15
(1)
This section applies to proceedings against a person (“the defendant”) for an
offence under section 35 consisting in the contravention of—
(a)
the terms, provisions or limitations of a wireless telegraphy licence; or
(b)
the terms, provisions or limitations of an exemption under section 8(3).
(2)
Proceedings to which this section applies are not to be brought unless, before
20
they are brought, OFCOM have—
(a)
given the defendant a notification under section 39 in respect of the
contravention to which the proceedings relate; and
(b)
considered any representations about the matters notified which were
made by the defendant within the period allowed under that section.
25
(3)
Proceedings to which this section applies are not to be brought against a person
in respect of a contravention if—
(a)
it is a contravention to which a notification given to that person under
section 39 relates; and
(b)
that person has, during the period allowed under that section,
30
complied with the notified term, provision or limitation.
(4)
Subsection (2) does not apply where OFCOM have certified that it would be
inappropriate to follow the procedure in section 39 because of an immediate
risk of—
(a)
a serious threat to the safety of the public, to public health or to national
35
security; or
(b)
serious economic or operational problems for persons (other than the
defendant) who—
(i)
use wireless telegraphy stations or wireless telegraphy
apparatus; or
40
(ii)
are communications providers or make associated facilities
available.
(5)
Where—
(a)
proceedings to which this section applies are as a result of subsection
(4) brought without a notification having been given to the defendant,
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and

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
26

(b)
the defendant is convicted in those proceedings of the offence under
section 35,

the court, in determining how to deal with that person, must have regard, in
particular, to the matters specified in subsection (6).
(6)
The matters are—
5
(a)
whether the defendant has ceased to be in contravention of the terms,
provisions or limitations in question and (if so) when; and
(b)
any steps taken by the defendant (whether before or after the
commencement of the proceedings) for securing compliance with the
obligations imposed on him by virtue of those terms, provisions or
10
limitations.
(7)
Where—
(a)
OFCOM give a notification under section 39 in respect of a
contravention, and
(b)
that notification is given before the end of six months after the day of
15
the contravention,

the time for the bringing of proceedings for a summary offence in respect of
that contravention shall be extended until the end of six months from the end
of the period allowed, in the case of that notification, for doing the things
mentioned in section 39(3).
20
(8)
Subsection (7) has effect notwithstanding anything in—
(a)
section 127 of the Magistrates’ Courts Act 1980 (c. 43) (limitation on
time for bringing summary proceedings), or
(b)
Article 19 of the Magistrates’ Courts (Northern Ireland) Order 1981
(S.I. 1981/1675 (N.I. 26)) (equivalent provision for Northern Ireland).
25
42
Special procedure for contraventions by multiplex licence holders
(1)
OFCOM may impose a penalty on a person if—
(a)
that person is or has been in contravention in any respect of the terms,
provisions or limitations of a general multiplex licence;
(b)
the contravention relates to terms, provisions or limitations falling
30
within section 9(4)(b) or (c);
(c)
OFCOM have notified that person that it appears to them that those
terms, provisions or limitations have been contravened in that respect;
and
(d)
that contravention is not one in respect of which proceedings for an
35
offence under this Chapter have been brought against that person.
(2)
Where OFCOM impose a penalty on a person under this section, they must—
(a)
notify that person of that decision and of their reasons for that decision;
and
(b)
in that notification, fix a reasonable period after it is given as the period
40
within which the penalty is to be paid.
(3)
A penalty imposed under this section—
(a)
must be paid to OFCOM; and
(b)
if not paid within the period fixed by them, is to be recoverable by them
accordingly.
45

Wireless Telegraphy Bill [HL]
Part 2 — Regulation of radio spectrum
Chapter 4 — Enforcement
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(4)
No proceedings for an offence under this Chapter may be commenced against
a person in respect of a contravention in respect of which a penalty has been
imposed by OFCOM under this section.
(5)
A licence is a general multiplex licence, in relation to the time of a
contravention, if—
5
(a)
it is a wireless telegraphy licence containing terms, provisions or
limitations as a result of which the services for the purposes of which
the use of the licensed station or apparatus is authorised are confined
to, or are allowed to include, one or more multiplex services; and
(b)
at that time, there is no licence under Part 1 or 2 of the Broadcasting Act
10
1996 (c. 55) in force in respect of a multiplex service to be broadcast
using that station or apparatus.
(6)
“Multiplex service” means—
(a)
a service for broadcasting for general reception consisting in the
packaging together of two or more services that are provided for
15
inclusion together in that service by a combination of the relevant
information in digital form; or
(b)
a service provided with a view to its being a service falling within
paragraph (a) but in the case of which only one service is for the time
being comprised in digital form in what is provided.
20
43
Amount of penalty under section 42
(1)
The amount of a penalty imposed under section 42 is to be such amount as
OFCOM think fit.
(2)
But the amount of the penalty may not exceed the greater of—
(a)
£250,000; and
25
(b)
5 per cent. of the relevant amount of gross revenue.
(3)
In subsection (2) “the relevant amount of gross revenue” means the amount
specified in section 44.
(4)
The Secretary of State may by order amend this section so as to substitute a
different amount for the amount for the time being specified in subsection
30
(2)(a).
(5)
No order is to be made containing provision authorised by subsection (4)
unless a draft of the order has been laid before Parliament and approved by a
resolution of each House.
44
Relevant amount of gross revenue
35
(1)
The relevant amount of gross revenue for the purposes of section 43, in relation
to a penalty imposed on a person, is—
(a)
where the last accounting period of that person which falls before the
contravention was a period of 12 months, the relevant part of his gross
revenue for that period; and
40
(b)
in any other case, the amount which, by making any appropriate
apportionments or other adjustments of the relevant part of his gross
revenue for the accounting period or periods mentioned in subsection
(2), is computed to be the amount representing the annual rate for the
relevant part of his gross revenue.
45