Communications Act 2003 s.1 – Functions and general powers of OFCOM

(1) The Office of Communications (“OFCOM”) shall have the following 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 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 State, or in accordance with a general authorisation given by him.

(5)OFCOM’s powers under subsection (3) include, in particular—

(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 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.

(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;

(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—

(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 Part 2.

Definitions used in section 1 4

OFCOM: “OFCOM” means the Office of Communications;
Defined in s.405(1) · see it in the full Act
enactment: “enactment” includes any enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland legislation;
Defined in s.405(1) · see it in the full Act
holder: “holder”, in relation to a Broadcasting Act licence, is to be construed in accordance with subsection (7), and cognate expressions are to be construed accordingly;
Defined in s.405(1) · see it in the full Act
subordinate legislation: “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));

Defined in s.405(1) · see it in the full Act

Cases considering section 1 3

Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors

[2011] EWHC 2016 (TCC) · 26 July 2011Interprets

The court interpreted Ofcom’s incidental and conducive power as sufficient for administrative changes to licence details, but insufficient to substitute a different legal entity as licence holder. (see paras [38]; [56]; [59])

Government of Bermuda v Office of Communications & Ors

[2008] EWHC 2009 (Admin) · 13 August 2008Interprets

Section 1(3) supports an incidental or conducive power enabling Ofcom to carry out its statutory functions. The court held that it could support Ofcom’s implied power to resolve conflicts arising in its representative role (see paras [75]; [80(6)-(7)).

Animal Defenders International, R (on the application of) v Secretary of State for Culture Media & Sport

[2006] EWHC 3069 (Admin) · 4 December 2006Defines

Identifies OFCOM’s statutory responsibility in the broadcasting framework. The judgment used that framework to explain the regulatory setting for the political-advertising prohibition. (see para [4])

What each judgment says about section 1 is in the case-law panel in the full Act.

Explanatory note

11.This section sets out the functions of OFCOM. These consist of those functions that prior to commencement were carried out by the Secretary of State and the pre-commencement regulators and which are transferred to OFCOM, together with all other functions conferred on OFCOM by other legislation, including the present Act.

*the meaning of pre-commencement regulators is given in subsection (1) of section 405. Those regulators are the Broadcasting Standards Commission, the Director General of Telecommunications, the Independent Television Commission and the Radio Authority. The expression does not include the Radiocommunications Agency, as the Agency is an executive agency of the Department of Trade and Industry and acts in the name of the Secretary of State and, although functions of the Secretary of State are transferred to OFCOM by the Act, the office of the Secretary of State will not cease to exist, unlike the other four regulators.

12.Subsections (3), (4) and (5) provide that OFCOM have power to do anything incidental or conducive to carrying out their functions. This, in particular, includes the power to borrow money (provided that this is done with the consent of, or in accordance with a general authorisation given by, the Secretary of State), the power to undertake research and development work in relation to their functions as well as to promote and arrange for it to be carried out by others, the power to prosecute in England, Wales and Northern Ireland offences relating to matters in respect of which they have functions, and the power, at their discretion, to compensate (where no legal liability arises) persons adversely affected by OFCOM’s activities.

13.Subsection (6) requires OFCOM to establish and maintain offices in England, Wales, Scotland and Northern Ireland.

14.Subsection (7) enables OFCOM to contract out their functions to a third party, where an order providing for such has been made by the Secretary of State under the Deregulation and Contracting Out Act 1994.

All the explanatory notes for the Act

Amendments and notes

5 notes from legislation.gov.uk

Commencement

I1S. 1(1) (2) (4) (5)(a) (b) (d) (6)-(8) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
I2S. 1(3) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
I3S. 1(3) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
I4S. 1(5)(c) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
I5S. 1(5)(c) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)