Appendix
7
5BS.I. 2011/2763:
memorandum from the Office of Communications
Wireless Telegraphy (Recognised Spectrum Access
for Satellite Receive-Only Earth Stations) Regulations 2011 (S.I. 2011/2763)
By letter sent on 7th December 2011 on
the above statutory instrument (the "Satellite RSA Regulations")
the Committee requested a memorandum on the following question:
Given the power to prescribe sums to be paid to
Ofcom in section 21 of the Wireless Telegraphy Act 2006, why is
regulation 6(c) included in the Satellite RSA Regulations made
under other powers in the Act?
The power to charge a fee
The power to charge a fee for a grant of recognised
spectrum access ("RSA") is contained in section 21 of
the 2006 Act.
Regulations have been made under section 21, which
enable that fee to be charged. These are the Wireless Telegraphy
(Recognised Spectrum Access Charges) Regulations 2007/392 (the
"Charges Regulations"). These were amended by an instrument
(S.I. 2011/2762) of even date with the Satellite RSA Regulations,
which enables Ofcom to charge a fee for grants under the Satellite
RSA Regulations.
The power to make grants of RSA subject to restrictions
and conditions
The power to make grants of RSA exists where section
18(1) applies, and it applies (inter alia) where the circumstances
of use are set out in Ofcom regulations. In this case Ofcom has
set out the circumstances in the Satellite RSA Regulations.
The power to make grants subject to "such restrictions
and conditions as Ofcom think fit" is contained in section
18(6).
One of the conditions to be included in the RSA grant
document is that the grantee must pay to Ofcom such sums due to
Ofcom under the Charges Regulations by the time required under
those Charges Regulations.
So while the vires for charging a fee derives from
section 21 and the Charges Regulations, there is also a condition
in the grant document that those charges must be paid.
This condition enables Ofcom to revoke a grant of
RSA, for example, if a charge is unpaid by the time when it falls
due under the Charges Regulations. (The same practice applies
to wireless telegraphy licences, where payment of fees is also
a licence condition.)
The Satellite RSA Regulations
The Satellite RSA Regulations are made under powers
conferred by section 18(1)(b), section 122(7) and Schedule 2 of
the 2006 Act.
Schedule 2, paragraph 1(1), says that the grant of
RSA is to be determined in accordance with procedures prescribed
in regulations made by Ofcom.
Schedule 2, paragraph 1(2), says in summary that
the procedures must include provision for-
(a) time limits for applications;
(b) requirements to be met before a grant is made;
(c) the restrictions and conditions to which a grant
may be made subject.
As described above one of the conditions to which
grants are to be made subject is a condition saying that the fee
due under the Charges Regulations must be made by the time required.
Regulation 6(c) was therefore included in the Satellite
RSA Regulations in order to comply with Schedule 2, paragraph
1(2)(c).
We took the view that what Schedule 2 paragraph 1
is doing is ensuring that the time limits, requirements and restrictions
and conditions are made public (by publication in the regulations
themselves).
In other words people who might wish to apply for
a grant of RSA should 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.
So Schedule 2, paragraph 1(2)(c), in our view, is
requiring the inclusion in the regulations of a description of
various things which must be done by Ofcom and by the applicant.
It does not in itself confer the vires on Ofcom to do these things
or to require these things of the applicant. The vires is conferred
on Ofcom by other statutory powers. (The vires for Ofcom to have
a time limit and to specify requirements to be met by the applicant
exists for example under Ofcom's powers to do things that are
incidental to its function of granting RSA (section 1(3) of the
Communications Act 2003).)
We hope this explanation is of assistance to the
Committee.
Office of Communications
8 December 2011
| 
