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A | |
Bill | |
To | |
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:— | |
Part 1 | |
Functions of OFCOM | |
Transferred and assigned functions | |
1 Functions and general powers of OFCOM | |
(1) The Office of Communications (“OFCOM”) shall have the following | 5 |
functions— | |
(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 | 10 |
conferred on them by the law of the Isle of Man or of any of the Channel | |
Islands. | |
(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 | 15 |
State, or in accordance with a general authorisation given by him. | |
(5) OFCOM’s powers under subsection (3) include, in particular— | |
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(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 | 5 |
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. | 10 |
(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 | |
Kingdom— | |
(a) England; | |
(b) Wales; | 15 |
(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— | 20 |
(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 | |
statutory instrument. | |
(8) In this section “telephone numbers” has the same meaning as in Chapter 1 of | 25 |
Part 2. | |
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 | 30 |
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 | 35 |
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 | 40 |
(b) any express transitional or consequential provisions made by or under | |
this Act in relation to those enactments. | |
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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; and | 5 |
(b) to further the interests of the community as a whole in relation to | |
communications matters. | |
(2) The things which, by virtue of subsection (1), OFCOM are required to secure in | |
the carrying out of their functions include, in particular, each of the | |
following— | 10 |
(a) the optimal use for wireless telegraphy of the electro-magnetic | |
spectrum; | |
(b) the availability throughout the United Kingdom of a wide range of | |
electronic communications services; | |
(c) the availability throughout the United Kingdom of a wide range of | 15 |
television and radio services which (taken as a whole) are both of high | |
quality and calculated to appeal to a variety of tastes and interests; | |
(d) the maintenance of a plurality of providers of different television and | |
radio services; | |
(e) the application, in the case of all television and radio services, of | 20 |
standards that provide adequate protection to members of the public | |
from the inclusion of offensive and harmful material in such services; | |
and | |
(f) the application, in the case of all television and radio services, of | |
standards that provide adequate protection to members of the public | 25 |
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 | 30 |
particular, to such of the following as appear to them to be relevant in the | |
circumstances— | |
(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 | 35 |
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 | |
regulatory practice; | 40 |
(e) the desirability of encouraging investment and innovation in relevant | |
markets; | |
(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; | 45 |
(g) the need to secure that the application in the case of television and radio | |
services of standards falling within subsection (2)(e) and (f) is in the | |
manner that best guarantees an appropriate level of freedom of | |
expression; | |
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(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 | |
incomes; | |
(j) the desirability of preventing crime and disorder; | 5 |
(k) the opinions of consumers in relevant markets and of members of the | |
public generally; | |
(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 | 10 |
securing of the matters mentioned in subsections (1) and (2) is | |
reasonably practicable. | |
(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. | 15 |
(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 | 20 |
other in a particular case, they must secure that the conflict is resolved in the | |
manner they think best in the circumstances. | |
(7) Every report under paragraph 12 of the Schedule to the Office of | |
Communications Act 2002 (c. 11) (OFCOM’s annual report) for a financial year | |
must contain a summary of the manner in which, in that year, OFCOM | 25 |
resolved conflicts arising in important cases between their general duties. | |
(8) A case is an important case for the purposes of subsection (7) only if— | |
(a) it involved one or more of the matters mentioned in subsection (9); or | |
(b) it otherwise appears to OFCOM to have been of unusual importance. | |
(9) Those matters are— | 30 |
(a) a major change in the activities carried on by OFCOM; | |
(b) matters likely to have a significant impact on persons carrying on | |
businesses in any of the relevant markets; or | |
(c) matters likely to have a significant impact on the general public in the | |
United Kingdom or in a part of the United Kingdom. | 35 |
(10) This section is subject to sections 363(11) and 364(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). | |
(11) In this section— | |
“communications matters” means the matters in relation to which | 40 |
OFCOM have functions; | |
“general duties”, in relation to OFCOM, means— | |
(a) their duties under subsections (1) to (4); and | |
(b) the duty which, under section 104(5), is to rank equally for the | |
purposes of subsections (5) and (6) with their duties under this | 45 |
section; | |
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“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; | 5 |
(b) their functions under the enactments relating to the management of the | |
radio spectrum; | |
(c) their functions under Chapter 3 of Part 2 in relation to disputes referred | |
to them under section 182; | |
(d) their functions under sections 21 and 22 so far as they relate to | 10 |
information required for purposes connected with matters in relation | |
to which functions specified in this subsection are conferred on | |
OFCOM; and | |
(e) their functions under section 23 so far as they are carried out for the | |
purpose of making information available to persons mentioned in | 15 |
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). | 20 |
(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 | 25 |
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. | 30 |
(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). | 35 |
(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 | 40 |
(b) one means of providing or making available such a network, service or | |
facility, | |
over another. | |
(7) The fifth Community requirement is a requirement to encourage, to such | |
extent as OFCOM consider appropriate for the purpose mentioned in | 45 |
subsection (8), the provision of network access and service interoperability. | |
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(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 | 5 |
communications providers and of persons who make such facilities | |
available. | |
(9) The sixth Community requirement is a requirement to encourage such | |
compliance with the standards mentioned in subsection (10) as is necessary | |
for— | 10 |
(a) facilitating service interoperability, and | |
(b) securing freedom of choice for the customers of communications | |
providers. | |
(10) Those standards are— | |
(a) standards or specifications from time to time drawn up and published | 15 |
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; | |
or | 20 |
(iii) the European Telecommunications Standards Institute; and | |
(c) the international standards and recommendations from time to time | |
adopted by— | |
(i) the International Telecommunication Union; | |
(ii) the International Organisation for Standardisation; or | 25 |
(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— | 30 |
“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. | 35 |
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. | 40 |
(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 | |
State. | |
(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 | 45 |
purposes— | |
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(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; | 5 |
(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 | 10 |
(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, | 15 |
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. | 20 |
(7) Subsection (4) does not affect the Secretary of State’s powers under section 129. | |
6 Duties to review regulatory burdens | |
(1) OFCOM must keep the carrying out of their functions under review with a | |
view to securing that regulation by OFCOM does not involve— | |
(a) the imposition of burdens which are unnecessary; or | 25 |
(b) the maintenance of burdens which have become unnecessary. | |
(2) In reviewing their functions under this section it shall be the duty of OFCOM— | |
(a) to have regard to the extent to which the matters which they are | |
required under section 3 to further or to secure are already furthered or | |
secured, or are likely to be furthered or secured, by effective self- | 30 |
regulation; and | |
(b) in the light of that, to consider to what extent it would be appropriate | |
to remove or reduce regulatory burdens imposed by OFCOM. | |
(3) In determining for the purposes of this section whether procedures for self- | |
regulation are effective OFCOM must consider, in particular— | 35 |
(a) whether those procedures are administered by a person who is | |
sufficiently independent of the persons who may be subjected to the | |
procedures; and | |
(b) whether adequate arrangements are in force for funding the activities | |
of that person in relation to those procedures. | 40 |
(4) OFCOM must, from time to time, publish a statement setting out how they | |
propose, during the period for which the statement is made, to secure that | |
regulation by OFCOM does not involve the imposition or maintenance of | |
unnecessary burdens. | |
(5) The first statement to be published under this section— | 45 |
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