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(c) in any other case, is a reference to the payment of the amount, in such | |
proportions as OFCOM consider appropriate, into each of those Funds. | |
(4) OFCOM must, in respect of each financial year, prepare an account showing— | |
(a) the amounts to which this section applies that have been received by | |
them during that year; | 5 |
(b) the sums paid into the Consolidated Funds of the United Kingdom and | |
Northern Ireland respectively under this section in respect of those | |
amounts; | |
(c) the aggregate amount of the sums received by them during that year | |
that is retained in accordance with a statement of principles under | 10 |
section 394 for meeting the costs of carrying out functions mentioned in | |
subsection (4) of that section during that year; | |
(d) the aggregate amount that they estimate will fall to be so retained out | |
of amounts due to them and likely to be paid or recovered; and | |
(e) the cost to OFCOM of carrying out during that year the functions in | 15 |
respect of which amounts are or are to be retained in accordance with | |
such a statement. | |
(5) OFCOM must send that account to the Comptroller and Auditor General not | |
later than the end of the month of November following the financial year to | |
which it relates. | 20 |
(6) The Comptroller and Auditor General must examine, certify and report on the | |
account and lay copies of it, together with his report, before each House of | |
Parliament. | |
(7) In this section— | |
“the appropriate percentage” has the same meaning as in section 19 of the | 25 |
1990 Act; | |
“cash bid amount” means an amount specified in a cash bid for a | |
Broadcasting Act licence or the amount determined by OFCOM for the | |
purposes of any provision of the 1990 Act or this Part to be what would | |
have been the amount of a cash bid for a licence; | 30 |
“financial year” has the same meaning as in the Schedule to the Office of | |
Communications Act 2002 (c. 11); | |
“numbering conditions” means conditions the setting of which is | |
authorised by section 55 or 56; and | |
“relevant revenue” means any of the following— | 35 |
(a) the amount which for the purposes of section 19, 52(1), 102(1) or | |
118 (1) of the 1990 Act is the amount of qualifying revenue for | |
an accounting period; | |
(b) the amount which for the purposes of section 13(1) or 55(1) of | |
the 1996 Act is the amount of multiplex revenue for an | 40 |
accounting period; or | |
(c) an amount which for the purposes of paragraph 7 of Schedule | |
10 to this Act is the amount of qualifying revenue for an | |
accounting period. | |
394 Power of OFCOM to retain costs of carrying out spectrum functions | 45 |
(1) OFCOM have power to make a statement of the principles under which they | |
may retain any or all of the amounts paid to them in pursuance of obligations | |
imposed by or under the Wireless Telegraphy Act 1998 (c. 6). | |
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(2) Where such a statement of principles authorises the retention of an amount, | |
OFCOM are not required to pay it into the appropriate Consolidated Fund in | |
accordance with section 393. | |
(3) Principles contained in a statement made by OFCOM under this section must | |
be such as appear to them to be likely to secure, on the basis of such estimates | 5 |
of the likely costs as it is practicable to make— | |
(a) that, on a year by year basis, the aggregate amount of the amounts | |
retained by OFCOM does not exceed the amount required by OFCOM | |
for meeting the annual cost to OFCOM of carrying out the functions | |
mentioned in subsection (4); | 10 |
(b) that the amounts retained by OFCOM are objectively justifiable and | |
proportionate to the costs in respect of which they are retained; and | |
(c) that the relationship between meeting the cost of carrying out those | |
functions and the amounts retained is transparent. | |
(4) Those functions are— | 15 |
(a) OFCOM’s functions under the enactments relating to the management | |
of the radio spectrum except those specified in subsection (5); and | |
(b) the function of taking any steps that OFCOM consider it necessary to | |
take— | |
(i) in preparation for the carrying out of any of the functions | 20 |
mentioned in paragraph (a) of this subsection; or | |
(ii) for the purpose of facilitating the carrying out of those functions | |
or otherwise in connection with carrying them out. | |
(5) The excepted functions of OFCOM are— | |
(a) their functions under section 19(2); | 25 |
(b) their functions under subsections (1) and (2) of section 149 so far as | |
carried out in relation to the use of the electro-magnetic spectrum at | |
places outside the United Kingdom, and their functions under | |
subsection (5) of that section; | |
(c) their functions under section 152; | 30 |
(d) their functions under section 155; | |
(e) their functions under section 165; | |
(f) their functions under sections 172 to 174; | |
(g) any functions conferred on them under section 5 of the Wireless | |
Telegraphy Act 1949 (c. 54); and | 35 |
(h) any function not falling within the preceding paragraphs in so far as the | |
costs of carrying it out are met from payments made to OFCOM by | |
virtue of section 25 or 149(8) of this Act. | |
(6) A statement under this section may include provision which, for the purposes | |
of the principles contained in the statement and of the preparation of accounts | 40 |
in accordance with section 393(4), requires an amount actually received in one | |
year— | |
(a) to be treated as referable to costs incurred in that year and in one or | |
more subsequent years; and | |
(b) to be brought into account, in each of those years, in accordance with | 45 |
an apportionment for which provision is made in the statement. | |
(7) A deficit or surplus shown (after applying this subsection for all previous | |
years) by an account prepared under section 393(4) is to be carried forward and | |
taken into account in determining what is required by OFCOM in relation to | |
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(7) the following year for meeting the costs of carrying out the functions | |
mentioned in subsection (4) of this section. | |
(8) A statement of principles under this section— | |
(a) if it is expressed to apply for a limited period, does not apply to any | |
amounts paid to OFCOM after the end of that period; and | 5 |
(b) in any event, does not apply to amounts paid to them after a | |
withdrawal of the statement takes effect. | |
(9) OFCOM may revise a statement made under this section. | |
(10) The consent of the Treasury is required for the making, revision or withdrawal | |
of a statement under this section. | 10 |
(11) Where OFCOM make or revise a statement of this section they must publish so | |
much of the statement or revised statement as appears to them necessary for | |
demonstrating that the statement or revision complies with subsection (3). | |
395 Power of Secretary of State to make orders and regulations | |
(1) Every power conferred by this Act on the Secretary of State to make orders or | 15 |
regulations, other than the powers conferred by Schedule 4, is a power | |
exercisable by statutory instrument. | |
(2) A statutory instrument containing an order or regulations made in exercise of | |
any such power, other than— | |
(a) an order under section 28 or 403, | 20 |
(b) an order containing a direction under section 153, or | |
(c) any order that is required, by any provision of this Act, to be laid before | |
Parliament and approved in draft, | |
shall be subject to annulment in pursuance of a resolution of either House of | |
Parliament. | 25 |
(3) Every power of the Secretary of State to make an order or regulations under | |
this Act, other than an order under section 28 or 403 or an order made in | |
exercise of a power conferred by Schedule 4, includes power— | |
(a) to make different provision for different cases (including different | |
provision in respect of different areas); | 30 |
(b) to make provision subject to such exemptions and exceptions as the | |
Secretary of State thinks fit; and | |
(c) to make such incidental, supplemental, consequential and transitional | |
provision as the Secretary of State thinks fit. | |
396 Regulations and orders made by OFCOM | 35 |
(1) This section applies to any power of OFCOM to make regulations or to make | |
an order or scheme if that power is one to which this section is expressly | |
applied. | |
(2) The powers to which this section applies shall be exercisable by statutory | |
instrument, and the Statutory Instruments Act 1946 (c. 36) is to apply in | 40 |
relation to those powers as if OFCOM were a Minister of the Crown. | |
(3) Where an instrument made under a power to which this section applies falls to | |
be laid before Parliament, OFCOM must, immediately after it is made, send it | |
to the Secretary of State for laying by him. | |
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(4) Before making any regulations or order under a power to which this section | |
applies, OFCOM must— | |
(a) give a notice of their proposal to do so to such persons representative | |
of the persons appearing to OFCOM to be likely to be affected by the | |
implementation of the proposal as OFCOM think fit; | 5 |
(b) publish notice of their proposal 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 and are not given notice by virtue | |
of paragraph (a); and | |
(c) consider any representations that are made to OFCOM, before the time | 10 |
specified in the notice. | |
(5) A notice for the purposes of subsection (4) must— | |
(a) state that OFCOM propose to make the regulations or order in | |
question; | |
(b) set out the general effect of the regulations or order; | 15 |
(c) specify an address from which a copy of the proposed regulations or | |
order may be obtained; and | |
(d) specify a time before which any representations with respect to the | |
proposal must be made to OFCOM. | |
(6) The time specified for the purposes of subsection (5)(d) must be a time before | 20 |
the end of the period of one month beginning with the day after the latest day | |
on which the notice is given or published for the purposes of subsection (4). | |
(7) Every power of OFCOM to which this section applies includes power— | |
(a) to make different provision for different cases (including different | |
provision in respect of different areas); | 25 |
(b) to make provision subject to such exemptions and exceptions as | |
OFCOM think fit; and | |
(c) to make such incidental, supplemental, consequential and transitional | |
provision as OFCOM think fit. | |
(8) The Documentary Evidence Act 1868 (c. 37) (proof of orders and regulations | 30 |
etc.) shall have effect as if— | |
(a) OFCOM were included in the first column of the Schedule to that Act; | |
(b) OFCOM and persons authorised to act on their behalf were mentioned | |
in the second column of that Schedule. | |
397 Criminal liability of company directors etc. | 35 |
(1) Where an offence under any enactment to which this section applies is | |
committed by a body corporate and is proved to have been committed with the | |
consent or connivance of, or to be attributable to any neglect on the part of— | |
(a) a director, manager, secretary or other similar officer of the body | |
corporate, or | 40 |
(b) a person who was purporting to act in any such capacity, | |
he (as well as the body corporate) is guilty of that offence and shall be liable to | |
be proceeded against and punished accordingly. | |
(2) Where an offence under any enactment to which this section applies— | |
(a) is committed by a Scottish firm, and | 45 |
(b) is proved to have been committed with the consent or connivance of, or | |
to be attributable to any neglect on the part of a partner of the firm, | |
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he (as well as the firm) is guilty of that offence and shall be liable to be | |
proceeded against and punished accordingly. | |
(3) In this section “director”, in relation to a body corporate whose affairs are | |
managed by its members, means a member of the body corporate. | |
(4) The enactments to which this section applies are every enactment contained | 5 |
in— | |
(a) this Act; | |
(b) the Wireless Telegraphy Act 1949 (c. 54); | |
(c) the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41); | |
(d) the Wireless Telegraphy Act 1967 (c. 72); or | 10 |
(e) the Telecommunications Act 1984 (c. 12). | |
(5) Section 14(2) of the Wireless Telegraphy Act 1949 (which is superseded by this | |
section) shall cease to have effect. | |
398 General interpretation | |
(1) In this Act, except in so far as the context otherwise requires— | 15 |
“the 1990 Act” means the Broadcasting Act 1990 (c. 42); | |
“the 1996 Act” means the Broadcasting Act 1996 (c. 55); | |
“access” is to be construed in accordance with subsection (4); | |
“apparatus” includes any equipment, machinery or device and any wire | |
or cable and the casing or coating for any wire or cable; | 20 |
“associated facility” has the meaning given by section 29; | |
“the BBC” means the British Broadcasting Corporation; | |
“body” (without more) means any body or association of persons, | |
whether corporate or unincorporate, including a firm; | |
“broadcast” means broadcast by wireless telegraphy, and cognate | 25 |
expressions are to be construed accordingly; | |
“Broadcasting Act licence” means a licence under Part 1 or 3 of the 1990 | |
Act or under Part 1 or 2 of the 1996 Act; | |
“business” includes any trade or profession; | |
“C4C” means the Channel Four Television Corporation; | 30 |
“communications provider” means a person who (within the meaning of | |
section 29(4)) provides an electronic communications network or an | |
electronic communications service; | |
“the Consumer Panel” means the panel established under section 15; | |
“consumers” has the meaning given by subsection (5); | 35 |
“Content Board” means the committee of OFCOM established and | |
maintained under section 11; | |
“contravention” includes a failure to comply, and cognate expressions are | |
to be construed accordingly; | |
“customers”, in relation to a communications provider or a person who | 40 |
makes an associated facility available, means the following (including | |
any of them whose use or potential use of the network, service or | |
facility is for the purposes of, or in connection with, a business)— | |
(a) the persons to whom the network, service or facility is provided | |
or made available in the course of any business carried on as | 45 |
such by the provider or person who makes it available; | |
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(b) the persons to whom the communications provider or person | |
making the facility available is seeking to secure that the | |
network, service or facility is so provided or made available; | |
(c) the persons who wish to be so provided with the network or | |
service, or to have the facility so made available, or who are | 5 |
likely to seek to become persons to whom the network, service | |
or facility is so provided or made available; | |
“distribute”, in relation to a service, does not include broadcast, and | |
cognate expressions shall be construed accordingly; | |
“electronic communications network” and “electronic communications | 10 |
service” have the meanings given by section 29; | |
“enactment” includes any enactment comprised in an Act of the Scottish | |
Parliament or in any Northern Ireland legislation; | |
“the enactments relating to the management of the radio spectrum” | |
means— | 15 |
(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) (except Part 1); | |
(d) Part 6 of the Telecommunications Act 1984 (c. 12); | |
(e) the Wireless Telegraphy Act 1998 (c. 6); | 20 |
(f) Chapter 2 of Part 2 of this Act; and | |
(g) the other provisions of this Act so far as relating to any of the | |
enactments mentioned in the preceding paragraphs; | |
“frequency” includes frequency band; | |
“holder”, in relation to a Broadcasting Act licence, is to be construed in | 25 |
accordance with subsection (7), and cognate expressions are to be | |
construed accordingly; | |
“information” includes accounts, estimates and projections and any | |
document; | |
“intelligible” is to be construed in accordance with subsection (9); | 30 |
“international obligation of the United Kingdom” includes any | |
Community obligation and any obligation which will or may arise | |
under any international agreement or arrangements to which the | |
United Kingdom is a party; | |
“modification” includes omissions, alterations and additions, and cognate | 35 |
expressions are to be construed accordingly; | |
“OFCOM” means the Office of Communications; | |
“other member State” means a member State other than the United | |
Kingdom; | |
“pre-commencement regulator” means any of the following— | 40 |
(a) the Broadcasting Standards Commission; | |
(b) the Director General of Telecommunications; | |
(c) the Independent Television Commission; | |
(d) the Radio Authority; | |
“programme” includes an advertisement and, in relation to a service, | 45 |
anything included in that service; | |
“programme service” means— | |
(a) a television programme service; | |
(b) the public teletext service; | |
(c) an additional television service; | 50 |
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(d) a digital additional television service; | |
(e) a radio programme service; or | |
(f) a sound service provided by the BBC; | |
and expressions used in this definition and in Part 3 have the same | |
meanings in this definition as in that Part; | 5 |
“provide” and cognate expressions, in relation to an electronic | |
communications network, electronic communications service or | |
associated facilities, are to be construed in accordance with section | |
29(4); | |
“the radio transfer date” means the date on which the Radio Authority’s | 10 |
functions under Part 3 of the 1990 Act and Part 2 of the 1996 Act are | |
transferred under this Act to OFCOM; | |
“representation”, in relation to a proposal or the contents of any notice or | |
notification, includes an objection to the proposal or (as the case may | |
be) to the whole or any part of those contents; | 15 |
“subordinate legislation” means— | |
(a) any subordinate legislation, within the meaning of the | |
Interpretation Act 1978 (c. 30); or | |
(b) any statutory rules (within the meaning of the Statutory Rules | |
(Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)); | 20 |
“television and radio services” means— | |
(a) programme services apart from those provided by the BBC; and | |
(b) services provided by the BBC in relation to which OFCOM have | |
functions; | |
“television programme” means any programme (with or without sounds) | 25 |
which— | |
(a) is produced wholly or partly to be seen on television; and | |
(b) consists of moving or still images or of legible text or of a | |
combination of those things; | |
“the television transfer date” means the date on which the Independent | 30 |
Television Commission’s functions under Part 1 of the 1990 Act and | |
Part 1 of the 1996 Act are transferred under this Act to OFCOM; | |
“TV licence” means a licence for the purposes of section 356; | |
“the Welsh Authority” means the authority whose name is, by virtue of | |
section 56(1) of the 1990 Act, Sianel Pedwar Cymru; | 35 |
“wireless telegraphy” has the same meaning as in the Wireless Telegraphy | |
Act 1949 (c. 54); | |
“wireless telegraphy licence” means a licence under section 1 of the | |
Wireless Telegraphy Act 1949. | |
(2) Any power under this Act to provide for the manner in which anything is to be | 40 |
done includes power to provide for the form in which it is to be done. | |
(3) References in this Act to OFCOM’s functions under an enactment include | |
references to their power to do anything which appears to them to be | |
incidental or conducive to the carrying out of their functions under that | |
enactment. | 45 |
(4) References in this Act to access— | |
(a) in relation to an electronic communications network or electronic | |
communications service, are references to the opportunity of making | |
use of the network or service; and | |
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