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Criminal proceedings etc.E+W+S+N.I.

172Contraventions of conditions for use of wireless telegraphyE+W+S+N.I.

(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

(b)a term, provision or limitation of an exemption under the proviso to section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) (exemptions from licensing requirement),

they may give that person a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM;

(b)specifies the term, provision or limitation, and the contravention, in 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)Those things are—

(a)making representations about the matters notified; and

(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.

(5)OFCOM may, if they think fit, allow a longer period for doing those things either—

(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 shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(7)The person notified shall also have 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 would be appropriate; and

(c)the shorter period has been specified in the notification.

173Meaning of “repeated contravention” in s. 172E+W+S+N.I.

(1)For the purposes of section 172 a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)in the case of a contravention of a term, provision or limitation of a 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, it falls within subsection (4) or (5).

(2)A contravention of a term, provision or limitation of a licence falls within this subsection if—

(a)a previous notification under section 172 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

(c)the subsequent notification is given no more than twelve months after the day of the giving of the previous notification.

(3)A contravention of a term, provision or limitation of a licence falls within this subsection if—

(a)the person concerned has been convicted of an offence under section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) 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 twelve months from the contravention in respect of which that person was 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 172 has been given in respect of the same contravention or in respect of another contravention of the same 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 twelve months after the day of the giving of the previous notification.

(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 1(1) of the Wireless Telegraphy Act 1949 (c. 54) in respect of the contravention to which the notification relates or in respect of another contravention of the same term, provision or limitation; and

(b)the subsequent notification is given before the end of the period of twelve months from the contravention in respect of which that person was convicted of that offence.

(6)In calculating the periods of twelve months mentioned in subsections (3)(b) and (5)(b), the period between the institution of the criminal proceedings which led to the conviction and the conclusion of those proceedings shall be left out of account.

(7)For the purposes of subsection (6) criminal proceedings shall be taken to be concluded when no further appeal against conviction may be brought without 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 without permission having been sought.

(8)References in this section to remedying a contravention include references to each of the following—

(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;

(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; and

(d)otherwise acting in a manner that constitutes an acknowledgement that the notified contravention did occur.

(9)References in this section to a contravention of a term, provision or limitation of a licence include a reference 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.

174Procedure for prosecutions of wireless telegraphy offencesE+W+S+N.I.

(1)This section applies to proceedings against a person (“the defendant”) for an offence under section 1 of the Wireless Telegraphy Act 1949 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 the proviso to section 1(1) of the Wireless Telegraphy Act 1949 (c. 54) (exemptions from licensing requirement).

(2)Proceedings to which this section applies are not to be brought at any time after the coming into force of this section unless, before they are brought, OFCOM have—

(a)given the defendant a notification under section 172 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.

(3)Proceedings to which this section applies are not to be brought at any time after the coming into force of this section in respect of a contravention if—

(a)it is a contravention to which a notification given to that person under section 172 relates; and

(b)that person has, during the period allowed under that section, 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 172 because of an immediate risk of—

(a)a serious threat to the safety of the public, to public health or to national security; or

(b)serious economic or operational problems for persons (other than the defendant) who—

(i)use stations or apparatus for wireless telegraphy; or

(ii)are communications providers or make associated facilities available.

(5)Where—

(a)proceedings to which this section applies are brought by virtue of subsection (4) without a notification having been given to the defendant, and

(b)the defendant is convicted in those proceedings of the offence under section 1 of the Wireless Telegraphy Act 1949,

the court, in determining how to deal with that person, shall have regard, in particular, to the matters specified in subsection (6).

(6)Those matters are—

(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 limitations.

(7)Notwithstanding anything in section 127 of the Magistrates' Courts Act 1980 (c. 43) or Article 19 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (limitation on time for bringing summary proceedings) where—

(a)OFCOM give a notification under section 172 in respect of a contravention, and

(b)that notification is given before the end of six months after the day of 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 172(3) of this Act.

(8)In this section, “stations for wireless telegraphy” and “apparatus for wireless telegraphy” have the same meanings as in the Wireless Telegraphy Act 1949 (c. 54).

175Special procedure for contraventions by multiplex licence holdersE+W+S+N.I.

(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 within section 1(2A)(b) or (c) of the Wireless Telegraphy Act 1949 (terms, provisions and limitations about service content);

(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 offence under that Act have been brought against that person.

(2)Where OFCOM impose a penalty on a person under this section, they shall—

(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 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.

(4)No proceedings for an offence under the Wireless Telegraphy Act 1949 shall 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)For the purposes of this section a licence is a general multiplex licence, in relation to the time of a contravention, if—

(a)it is a wireless telegraphy licence containing terms, provisions or limitations by virtue 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 1996 Act in force in respect of a multiplex service to be broadcast using that station or apparatus.

(6)In this section “multiplex service” means—

(a)a service for broadcasting for general reception that consists in the packaging together of two or more services that are provided for 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.

176Amount of penalty under s. 175E+W+S+N.I.

(1)The amount of a penalty imposed under section 175 is to be such amount, not exceeding the greater of the following, as OFCOM think fit, namely—

(a)£250,000; and

(b)5 per cent. of the relevant amount of gross revenue.

(2)In subsection (1) “the relevant amount of gross revenue” means the amount specified in section 177.

(3)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 (1)(a).

(4)No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

177Relevant amount of gross revenue” for the purposes of s. 176E+W+S+N.I.

(1)The relevant amount of gross revenue for the purposes of section 176, 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 twelve months, the relevant part of his gross revenue for that period; and

(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 revenues.

(2)The accounting period or periods referred to in subsection (1) are—

(a)every accounting period of his to end within the period of twelve months immediately preceding the contravention; and

(b)if there is no such accounting period, the accounting period of his which is current at the time of the contravention.

(3)In this section, a reference to the relevant part of a person’s gross revenue, in relation to a contravention of the terms, provisions or limitations of a licence, is a reference to so much of his gross revenue as is attributable to the provision of the service to which that licence relates.

(4)For the purposes of this section—

(a)the gross revenue of a person for a period, and

(b)the extent to which a part of a person’s gross revenue is attributable to the provision of any service,

shall be ascertained in accordance with such principles as may be set out in a statement made by OFCOM.

(5)Such a statement may provide for the amount of a person’s gross revenue for an accounting period that is current when the amount falls to be calculated to be taken to be the amount estimated by OFCOM, in accordance with the principles set out in the statement, to be the amount that will be his gross revenue for that period.

(6)OFCOM may revise a statement made under subsection (4) from time to time.

(7)A statement made or revised under this section may set out different principles for different cases.

(8)Before making or revising a statement under this section, OFCOM must consult the Secretary of State and the Treasury.

(9)OFCOM must—

(a)publish the statement made under subsection (4) and every revision of it; and

(b)send a copy of the statement and of every such revision to the Secretary of State;

and the Secretary of State must lay copies of the statement and of every such revision before each House of Parliament.

(10)Section 13A of the Wireless Telegraphy Act 1949 (c. 54) is to apply for the purpose of ascertaining the amount of a person’s gross revenue for any period for the purposes of section 176 of this Act and this section as it applies for the purpose of obtaining information for statistical purposes about matters relating to the establishment, installation or use by that person of a station or apparatus.

(11)In this section—

  • accounting period”, in relation to a person, means a period in respect of which accounts of the undertaking carried on by him are prepared or, if one such period is comprised in another, whichever of those periods is or is closest to a twelve month period; and

  • gross revenue”, in relation to a person, means the gross revenue of an undertaking carried on by that person.

178Proceedings for an offence relating to apparatus useE+W+S+N.I.

(1)Section 11 of the Wireless Telegraphy Act 1949 (notices enforcing regulations on the use of apparatus) shall have effect with the following amendments in relation to any notice under subsection (1) or (2) of that section that is served after the coming into force of this subsection—

(a)paragraph (i) of the proviso to subsection (1) shall be omitted; and

(b)for subsections (3) to (6) there shall be substituted—

(2A)Where an appeal with respect to a notice under this section is pending—

(a)proceedings for an offence of contravening that notice (whether instituted before or after the bringing of the appeal) shall be stayed until the appeal has been finally determined; and

(b)any such proceedings shall be discharged if the notice is set aside in consequence of the appeal;

but this subsection does not affect proceedings in which a person has been convicted at a time when there was no pending appeal.

(2B)For the purposes of this section an appeal under section 192 of the Communications Act 2003 with respect to a notice under this section or a further appeal relating to the decision on such an appeal is pending unless—

(a)that appeal has been brought to a conclusion or withdrawn and there is no further appeal pending in relation to the decision on the appeal; or

(b)no further appeal against a decision made on the appeal or on any such further appeal may be brought without the permission of the court and—

(i)in a case where there is no fixed period within which that permission can be sought, that permission has been refused or has not been sought; or

(ii)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 without permission having been sought.

(2C)No proceedings for an offence of contravening a notice under this section may be commenced in Scotland—

(a)until the time during which an appeal against such a notice may be brought has expired; or

(b)where such an appeal has been brought, until that appeal has been determined.

(2D)Such proceedings in Scotland must be commenced within six months of—

(a)where no appeal has been brought, the time referred to in paragraph (a) of subsection (2C); and

(b)where an appeal has been brought and determined, the date of that determination.

(2)Section 12 of that Act (enforcement of regulations as to sales of apparatus etc.) shall have effect in relation to any notices served under subsection (1) of that section after the coming into force of this section with the substitution of the following subsections for subsections (2) to (4)—

(1A)Where an appeal with respect to a notice under subsection (1) of this section is pending—

(a)proceedings for an offence of contravening that notice (whether instituted before or after the bringing of the appeal) shall be stayed until the appeal has been finally determined; and

(b)any such proceedings shall be discharged if the notice is set aside in consequence of the appeal;

but this subsection does not affect proceedings in which a person has been convicted at a time when there was no pending appeal.

(1B)For the purposes of this section any appeal under section 192 of the Communications Act 2003 with respect to a notice under this section or a further appeal relating to the decision on that appeal is pending unless—

(a)that appeal has been brought to a conclusion or withdrawn and there is no further appeal pending in relation to the decision; or

(b)no further appeal against any decision made on the appeal or on any such further appeal may be brought without the permission of the court and—

(i)in a case where there is no fixed period within which that permission can be sought, that permission has been refused or has not been sought; or

(ii)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 without permission having been sought.

(1C)No proceedings for an offence of contravening a notice under this section may be commenced in Scotland—

(a)until the time during which an appeal against such a notice may be brought has expired; or

(b)where such an appeal has been brought, until that appeal has been determined.

(1D)Such proceedings in Scotland must be commenced within six months of—

(a)where no appeal has been brought, the time referred to in paragraph (a) of subsection (1C); and

(b)where an appeal has been brought and determined, the date of that determination.

179Modification of penalties for certain wireless telegraphy offencesE+W+S+N.I.

(1)In subsection (1) of section 14 of the Wireless Telegraphy Act 1949 (c. 54) (either way offences), for paragraphs (aa) and (ab) there shall be substituted—

(aa)any offence under section 1(1) of this Act consisting in the establishment or use of a station for wireless telegraphy, or the installation or use of wireless telegraphy apparatus, for the purpose of making a broadcast (within the meaning of section 9 of the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41));

(ab)any offence under section 1A of this Act where the relevant contravention of section 1 would constitute an offence falling within paragraph (aa);.

(2)After subsection (1A), there shall be inserted—

(1AA)A person committing—

(a)an offence under section 1(1) of this Act other than—

(i)one which falls within subsection (1)(aa), or

(ii)one which falls within subsection (1A)(a), or

(b)an offence under section 1A of this Act other than—

(i)one which falls within subsection (1)(ab), or

(ii)one which falls within subsection (1A)(aa),

shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(3)In section 79(1) of the Telecommunications Act 1984 (c. 12) (offences in respect of which apparatus may be seized), after paragraph (b) there shall be inserted—

(bza)any offence under section 1A of that Act other than one where the relevant contravention of section 1 of that Act would constitute an offence so consisting;.

(4)This section only applies in relation to offences committed after the commencement of this section.

180Fixed penalties for certain wireless telegraphy offencesE+W+S+N.I.

Schedule 6 (which makes provision as respects fixed penalty notices for summary offences under the Wireless Telegraphy Act 1949 (c. 54)) shall have effect.

181Power of arrestE+W+S+N.I.

(1)In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (offences for which power of summary arrest available), after paragraph 2 there shall be inserted—

Wireless Telegraphy Act 1949

2AAn offence mentioned in section 14(1) of the Wireless Telegraphy Act 1949 (offences under that Act which are triable either way).

(2)In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (offences for which power of summary arrest available), after paragraph (i) there shall be inserted—

(j)an offence mentioned in section 14(1) of the Wireless Telegraphy Act 1949 (offences under that Act which are triable either way);.

182Forfeiture etc. of restricted apparatusE+W+S+N.I.

(1)Apparatus to which this section applies shall be liable to forfeiture if, immediately before being seized, it was in a person’s custody or control in contravention of a prohibition imposed by an order under section 7 of the Wireless Telegraphy Act 1967 (c. 72) (restriction on dealings in and custody of certain apparatus).

(2)This section applies to apparatus if it has been seized—

(a)in pursuance of a warrant granted under section 15(1) of the Wireless Telegraphy Act 1949; or

(b)in the exercise of the power conferred by section 79(3) of the Telecommunications Act 1984 (c. 12).

(3)Apparatus forfeited under this section is to be forfeited to OFCOM and may be disposed of by them in any manner they think fit.

(4)Schedule 7 (which makes provision in relation to the seizure and forfeiture of apparatus) shall have effect.

(5)The preceding provisions of this section and Schedule 7 apply only in relation to apparatus seized after the commencement of this section.

(6)Sections 80 and 81 of the Telecommunications Act 1984 (c. 12) (which make provision for forfeiture of apparatus) are not to apply in relation to apparatus seized after the commencement of this section.

(7)In section 7(5) of the Wireless Telegraphy Act 1967 (c. 72), paragraph (b) (which allows a person to have custody or control of restricted apparatus when authorised otherwise than by the Secretary of State) shall cease to have effect.

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