Communications Act 2003

401 Power of OFCOM to retain costs of carrying out spectrum functions

(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).

(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 400.

(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 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);

(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—

(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 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 22(2);

(b) their functions under subsections (1) and (2) of section 152 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 155;

(d) their functions under section 158;

(e) their functions under section 168;

(f) their functions under sections 175 to 177;

(g) any functions conferred on them under section 5 of the Wireless Telegraphy Act 1949 (c. 54); and

(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 28 or 152(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 in accordance with section 400(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 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 400(4) is to be carried forward and taken into account in determining what is required by OFCOM in relation to 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

(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.

(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).