Digital Economy Act 2010

Access to electromagnetic spectrum

38Payment for licences

(1)Section 12 of the Wireless Telegraphy Act 2006 (charges for grant of licence) is amended as follows.

(2)In subsection (5) at the end insert “, but this is subject to subsection (6).”

(3)After subsection (5) insert—

“(6)Regulations under or for the purposes of subsection (1)(b), so far as it relates to payments during the term of a licence, may be made so as to apply in relation to a licence granted in accordance with regulations under section 14, but only in the following cases—

(a)where provision included in the licence with the consent of the holder of the licence provides for the regulations to apply;

(b)where the licence includes terms restricting the exercise by OFCOM of their power to revoke the licence before the end of a period and that period has expired;

(c)where the licence would, but for a variation, have ceased to have effect at the end of a period and that period has expired;

(d)where the licence is a surrendered-spectrum licence.

(7)Provision may not be made by virtue of subsection (6)(c) or (d) without the consent of the Secretary of State.

(8)A wireless telegraphy licence is a “surrendered-spectrum licence” if —

(a)it is granted under arrangements involving (before the grant or later) the variation, revocation or expiry of another wireless telegraphy licence;

(b)the arrangements are with a view to enabling the holder of that other licence to comply with a limit applying to frequencies in respect of which a person may hold licences; and

(c)it authorises the use after that variation, revocation or expiry of a frequency whose use until then was or is authorised by that other licence.

(9)In relation to a surrendered-spectrum licence there may be more than one such other licence (“predecessor licence”) and a licence may be a predecessor licence to more than one surrendered-spectrum licence.”

(4)Section 14 of the Wireless Telegraphy Act 2006 (bidding for licences) is amended as follows.

(5)In subsection (5) after “those sums must” insert “, subject to subsection (5A),”.

(6)After subsection (5) insert—

“(5A)The regulations may, with the consent of the Secretary of State, make provision permitting or requiring a surrendered-spectrum licence to which the regulations apply to include—

(a)provision requiring all or part of a sum that would otherwise be payable to OFCOM under subsection (5) to be paid to a person who was or is the holder of a predecessor licence;

(b)provision requiring a sum in addition to that payable to OFCOM under subsection (5) to be paid to such a person;

(c)provision specifying any such sum or part or the method for determining it.”

(7)After subsection (8) insert—

“(9)In subsection (5A) “surrendered-spectrum licence” and “predecessor licence” have the meaning given by section 12(8) and (9).”

39Enforcement of licence terms etc

(1)In Chapter 4 of Part 2 of the Wireless Telegraphy Act 2006 (enforcement of regulation of radio spectrum) after section 43 insert—

“43ASpecial procedure for contraventions of certain provisions

(1)OFCOM may impose a penalty on a person if—

(a)that person is or has been in contravention in any respect of a provision, term or limitation of a wireless telegraphy licence;

(b)OFCOM have notified that person that it appears to them that the provision, term or limitation has been contravened in that respect;

(c)this section applies to that contravention by virtue of provision included in the licence; and

(d)that contravention is not one in respect of which proceedings for an offence under this Chapter have been brought against that person.

(2)A licence may provide in accordance with subsection (1)(c) that this section applies to the contravention of a provision, term or limitation only if it appears to OFCOM that a direction under section 5 requires the provision, term or limitation to be included in the licence.

(3)Where OFCOM impose a penalty on a person under this section, they must—

(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.

(4)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.

(5)No proceedings for an offence under this Chapter may be commenced against a person in respect of a contravention in respect of which a penalty has been imposed by OFCOM under this section.

(6)The amount of a penalty imposed under this section is to be such amount not exceeding 10 per cent of the relevant amount of gross revenue as OFCOM think—

(a)appropriate; and

(b)proportionate to the contravention in respect of which it is imposed.”

(2)In section 44 of that Act (relevant amount of gross revenue), in subsections (1) and (10), after “43” insert “or 43A”.

(3)In section 400 of the Communications Act 2003 (destination of licence fees and penalties), in subsection (1)(d), after “42” insert “or 43A”.