6 S.I.
2011/2763: Reported for requiring elucidation
Wireless Telegraphy (Recognised Spectrum Access
for Satellite Receive-Only Earth Stations) Regulations 2011 (S.I. 2011/2763)
6.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they require
elucidation in one respect.
6.2 The Regulations are made under the Wireless Telegraphy
Act 2006 ("the 2006 Act") and deal with the circumstances
in which the Office of Communications ("OFCOM") may
make a grant of recognised spectrum access.
6.3 Regulation 6 sets out the conditions and restrictions
to which a grant of recognised spectrum access may be made subject,
and includes at paragraph (c) "a condition requiring payment
of fees".
6.4 It appeared to the Committee that this provision
was purporting to confer on OFCOM the power to charge fees for
and in connection with the grant of recognised spectrum access,
by way of a condition imposed on the grant. There is, however,
no express power to charge fees in the enabling powers under which
these Regulations are purported to be made. Section 21 of the
2006 Act does require charges to be paid in respect of grants
of recognised spectrum access, and it confers power on OFCOM to
determine the amounts charged; but that power is to be exercised
by statutory instrument under section 21(2). The Committee therefore
asked OFCOM to explain why, given the power in section 21(2) to
charge fees, regulation 6(c) appears to confer a power to charge
fees by attaching conditions to grant of access.
6.5 In a memorandum printed at Appendix 7, OFCOM
explains that the intention of regulation 6(c) is only to permit
conditions that require compliance with regulations setting charges
under section 21(2), and not to permit conditions to impose free-standing
obligations to charge fees. OFCOM adds that the intention is to
ensure that all the relevant requirements "are made public
(by publication in the regulations themselves)" so that applicants
will be "able to read the regulations and see what needs
to be done in order to obtain a grant of RSA and see what they
will get by way of grant in terms of the conditions which will
apply".
6.6 The provisions of section 21 of the 2006 Act
about charging for grants of recognised spectrum access say nothing
about the consequences of failure to pay; nor do the regulations
under that section (the Wireless Telegraphy (Recognised Spectrum
Access Charges) Regulations 2007 (S.I. 2007/392)) say anything
about enforcement. That being so, the Committee agrees that it
is not inherently inappropriate to make compliance with section
21 and regulations under it a condition of grant of access. But
it would have been just as helpful to readers (in fact more helpful)
and less potentially misleading to include a reference to section
21 and the charging regulations in regulation 6(c) of these Regulations,
so that it was clear that the intention was not to impose a separate
power to charge.
6.7 The Committee accordingly reports regulation
6(c) as calling for the elucidation provided in OFCOM's memorandum
as amplified in this Report.
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