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The Communication Act 2003 (Coms Act) has some major implications for the mast movement, from the change in terminology to the grant of compulsory purchase rights to phone operators. The main piece of legislation was the Telecommunication Act 1984, the Coms Act has revoked vast sections of this, replacing it with the provisions of the Coms Act. Therefore it is important that many of the provisions are known to activists and that the new terminology is adopted. The Coms Act is over 500 pages, although much of it relates to other forms of communications and therefore are of no interest to the readers of this paper.

The Coms Act also sets out the powers of OFCOM which is an amalgamation of most of the relevant bodies - BSC (Broadcasting Standards Commission) - ITC (Independent Television Commission) - Oftel (Office of Telecommunications) - RA (Radiocommunications Agency) - Radio Authority - ACTs (Advisory Committees on Telecommunications) - Spectrum Auctions - SMAG (Spectrum Management Advisory Group), not all of these are relevant to telecoms. We shall list the most important changes and new powers below. please feel free to make comments and recommendations for inclusion.

Schedule 2 of the Telecommunication Act 1984 The Telecommunication Code is now known as the Electronic Communication Code (amendments to the Code are set out in Schedule 3 of the Coms Act), this is very important for those making challenges under Sch 2 of the Code (para 5 acquisition of land for telecoms purposes - para 16 compensation for disaffection of land use - para 17 removal of mast), they should therefore replace the title on any formal letters or court applications to take into effect this change, as well as making sure that the court becomes aware of the change if proceedings have already commenced. Thus the correct title for para 17 objections should be:-

Telecommunication Act 1984 - Schedule 2 - Paragraph 17
The Electronic Communication Code

The Code also sets out the procedures where a land owner is able to terminate a lease/contract with an operator (Please note there are only very limited grounds, within the Code, but individual leases might be more fruitful, if so paragraph 21 of the Code sets out the procedures to achieve it), as well as the fixing of notices and the process for paying compensation to affected landowners.

Original licences granted have effectively been revoked and replaced by the provisions of the Coms Act, although in practice this makes very little difference. But most of the Operators at the date of writing this briefing have not yet updated their procedures or advise to their staff. Therefore they are still referring to the old licences, and the old procedures.

There, is a general concern within the Mast Movement that the details, and location of all installations are not in the public domain. If there is ever to be any creditability of the telecoms industry then they have to be open about their dealings, especially to the members of the public that might be affected by the developments. Whilst the former Radio Communication Agency (RA) started first a general database, which was then converted to what is now Site Finder, an online database of mobile telecoms sites, in the past there has been no statutory requirement to keep such a register, albeit that PPG8 implies that there should be two databases, a local one kept by the Local Planning Authority and one kept by OFCOM as the successor to the RA. That lack of statutory provision has now been effectively reversed with the introduction of Sections 32 to 44 of the Coms Act, which gives an obligation for OFCOM to require Operators to register every 'facility' (which we interpret as including base stations and hidden installations, as well as TETRA installations.)

Under Section 33 a person that intends providing a electronic communication network or service must give notice to OFCOM that he is going to do so. This has a number of important factors, OFCOM must now have a list of all operators, as well as an address for service of any documents including writs and other court documents (S44 provides that OFCOM must make all the information publicly available). The wider implication of this relates to private networks, which are often difficult to trace, as well as Rail Track, albeit OFCOM have the power not to require certain categories not to notify them of their services. Whereas S34 provides that before making or withdrawing a designation (the names of the persons and organisations that must notify OFCOM) OFCOM must consult those people in the opinion of OFCOM are likely to be affected by it. Now whilst it is unlikely that OFCOM is likely to find that campaign groups are a person to be consulted, it nevertheless is arguable that they should consider that national interest groups should be consulted on issues that affect their members.

If the information required to be submitted by S33 by an operator to OFCOM is not submitted, then they can have a penalty imposed against them up to a maximum of £10,000, as well as the ability for OFCOM to seek an injunction to prevent further infringements. Whilst this is unlikely to affect major operators, small local networks may well find themselves contravening the provisions, therefore a careful eye should be kept on all sections of the industry to ensure compliance.

Section 32 of the Act which sets out some definitions states at sub para (3):-

In this Act 'associated facility' means a facility which-
(a) is available for use in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility available); and
(b) is so available for the purpose of-
(i) making the provision of that network or service possible;
(ii) making possible the provision of other services provided by means of that network or service; or
(iii) supporting the provision of such other services.

Section 34(1)

A person shall not-
(a) provide a designated electronic communications network,
(b) provide a designated electronic communications service, or
(c) make available a designated associated facility,

unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.

Sub Section (2) then sets out to reduce the generality of the clause to that of services or facilities designated by OFCOM as requiring notification. As at the date of this briefing Planning Sanity has not been able to ascertain from OFCOM whether base stations and other such facilities have been so designated, and if not why not, we suggest that those concerned about the location of installations should lobby OFCOM, first to discover whether the relevant categories are ones that require notification, and if not why not.

There is a list of criteria that must then be followed if OFCOM require that category of facility to be notified, including at Sub Paragraph (11) the requirement to notify OFCOM of all existing facilities of the category set out in the notice. Thus all existing base stations should be notified to OFCOM.

Section 34 requires that OFCOM consults such persons as in its opinion 'are likely to be affected by it'. Albeit there is a clear discretion within this clause on the part of OFCOM, however, in our view that discretion must be exercised in a reasonable way, and if it does not then it may find that its decisions will be the subject of applications to the High Court. Now are local communities, or organisations that are seen to represent local communities persons that would reasonably fall within that category. It may rightly be argued that a general obligation to consult the wider public, even where individuals are likely to be affected would be too onerous for OFCOM, and therefore unreasonable for the purposes of Section 34. However, it would, in our view, be more difficult for OFCOM to argue that national organisations involved in mast issues, such as Planning Sanity, or Mast Sanity should not be consulted.

This requirement could be very important for all those installations that by-pass the local planning process, as arguably OFCOM would need to make a determination whether to allow the registration of each facility after taking into account the information gained from the consultation.

Where OFCOM believe that breaches in the requirement to give notice have occurred then OFCOM have the ability within Section 35 give a notice of contravention, that sets out what is required to correct the situation. And the power under Section 36 to give the provider (operator) an enforcement notification. A failure gives rise to the ability of OFCOM to seek an injunction, or in Scotland for an order of 'Specific Performance'. Or any other appropriate remedy. A breach of an injunction or of specific performance could of course result in a fine or imprisonment (or both). however, Section 37 sets out specific penalties for breach of the provisions, which includes the ability of OFCOM to impose a penalty (maximum £10,000) for each breach.

Section 44 requires that OFCOM publish a register of all notifications, and charges, and that the register is available for public inspection. Albeit that OFCOM can make a charge for viewing the Register. OFCOM sets the charge but they must publish a notice setting out the times and places of inspection and the fee payable. This effectively requires OFCOM to maintain a database (or register) of all installations.

OFCOM have the power under S1(5) to undertake research and development, presumably including research into health related matters:-

(a) power to undertake any 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;

This power is not connected to the Government research programme already in place, and can clearly from the words used cover any aspect of telecommunications, especially as they have powers under S132 to revoke or suspend the right to provide electronic communications on the grounds - "to protect the public from any threat to public safety or public health", more on suspension of the operators rights later. It will clearly be interesting to see what if any research they are prepared to promote (i.e. pay for), our view is that any such applications should be well researched prior to submission of a request, backed by potential evidence of a risk, and then if need be to challenge the failure to fund the research as being an irrational use of their powers.

Planning Sanity would like to clear up the issue of ill health clusters, by building on the work of Mast Sanity and others relating to the various alleged ill-health clusters said to be present close to telecommunication masts, as well as funding any work needed to replicate any results. We suggest that either one of the national mast organisations, or the independent research facilities such as those at PowerWatch or Coghill Laboratories make advances to OFCOM to discover what if any criteria they would require in any application for research funding, under these provisions. The significance of any results that supported the believe that phone masts generally, or a specific category of masts (such as TETRA or G3) close to residential properties had an effect upon either the well-being or physical health of the local community, or any proportion of the community, then it would be difficult to see how OFCOM could not implement the provisions of S132 and suspend licences, which effectively means turning off the system that created the problem.

It will be interesting to see how the courts interpret the Principle Duty of OFCOM in carrying out their functions to 'Further the interests of citizens in relation to communications matters' (s3(1)). Whilst in the context that it is set out it means the provision of services, nevertheless it does not specifically state that, one of the relevant criteria which it MUST have regard to states:-

'the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection' (s3(4)(h)).

The Secretary of State in as far as Networks and Spectrum Functions are concerned, shall limit his powers to give Directions amongst other grounds to those 'in the interests of the safety of the public or public health' (5(3)(d)). From this it would appear that the Government is doing all it can to make it absolutely possible that if ever there is a proven health risk they have the ability of pulling the plug, without any financial consequences to them. This issue was highlighted in the question and answer session of the Commons Public Finance Committee investigation into TETRA, where some very prudent questions were asked as to the liability of the various parties if either the Government or Operator pulled the plug, and it was made very clear that who ever started the pulling would suffer considerable penalties i.e. the Operator or the Government would have to pay the other £billions in compensation. The question therefore has to be asked is this a genuine attempt to ensure the public are protected, or a desire to financially protect the Government if it is conclusively proven that a health risk exists.

Within the context of self regulation S6(3)(a) makes it clear that OFCOM must take into account whether those procedures are administered by a person who is sufficiently independent of the persons who may be subjected to the procedures. Mast Operators Association (MOA) who effectively administer the self regulation of the telecoms industry through the Ten Commitments and the Traffic Light Scheme have made it very clear that they are funded by the Operators, and that they only report problems or complaints to the Operators, who then decide whether to act. In other words MOA has no control or ability to force the operators to undertake their commitments sets out in the self regulatory provisions of the two codes. But in any event 02 Airwave, and most of the none mobile phone operators are not members of MOA, and therefore have not signed up to the self regulations, under those two codes. Clearly from this it can be seen that tremendous pressure can be put on OFCOM to either insist that the operators put in place a truly independent self regulatory body, or to implement statutory regulation.

OFCOM have the power to set conditions, this is am important part of the powers of OFCOM, as along with other provisions that we shall deal with later under S51(1)(f) OFCOM have the power to set a condition for securing the protection of public health, as well as other conditions. It will be interesting to see what if any 'conditions' OFCOM actually put in place, Planning Sanity will certainly be pressing hard for stringent conditions to be applied.

The process of empowering OFCOM to set conditions is contained within S45, with provisions relating to the contents set out in subsequence sections. As we setout above the most interesting is that of having the ability to specifically include provisions relating to health and the need to protect the public. It should be noted that some of the powers do not relate to the planning and/or health aspects, and therefore we do not deal with these.

The conditions that can be set come within 4 broad headings:

(a) a general condition;
This is a condition which contains only provisions authorised or required by one or more of sections 51, 52, 57, 58 and 64.

(b)(i) a universal service condition;
This is a condition which contains only provisions authorised by section 67
CONDITION 51(1)(f) and (g)
(f) conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in accordance with the operation of electronic communications networks.
(g) conditions requiring compliance with relevant international standards

(ii) an access related condition;
These Conditions are not relevant to this briefing
(iii) a privileged supplier condition;
These Conditions are not relevant to this briefing
(iv) a significant market power condition (an "SMP condition")
This condition is either (a) an SMP services condition is a condition which only contains provisions which are authorised by sections 87 to 92, or in the case of persons that come within section 46(8)(b), corresponds to provision authorised or required by one or more of sections 87 to 89. An SMB apparatus condition is a condition containing only provisions authorised by section 93.

This could be a significant section in relation to the reducing of the overall number of telecoms installations. Condition 87 sets out the powers of OFCOM to make provision for the sharing of existing facilities, and to ensure that the original provider of those facilities is adequately compensated for the additional cost they have made. Albeit in reality in the early stages this is not likely to see the sharing of installation, other than the selling on of services to third parties (such as Virgin telecom).

It should be noted that OFCOM can effectively 'fine' operators who break the conditions by imposing a penalty. This penalty can be as much as 10% of the turnover of the notified providers relevant business for the period of the infringement (S96(1)). This could be a significant sum, it will be interesting to see if OFCOM ever use these powers. Under S100 OFCOM can suspend service provision for contravention of the conditions, we wait in anticipation. There is a process for the suspension of the Code (which effectively puts that operator out of business for the period of suspension) under S113, however, Planning Sanity does not believe that power will ever be used.

As we set out earlier in this briefing operators have gained compulsory purchase powers under Section 118, the process it self is set out in Schedule 4 of the Act. The provisions apply to all parts of the UK and Northern Ireland. The power can only be exercised with the consent of OFCOM, on a case by case basis. And would involve the normal compulsory purchase provisions, including where appropriate a public inquiry.

The operators also acquire the power to gain entry to land for exploratory purposes, the powers though do not apply to gardens, pleasure ground (there is no explanation of what constitutes a 'pleasure ground', as such it is arguable this would not apply to commons and village greens, or land covered by a building. Albeit 28 days notice must be given to the owner or occupier of the land. There is also provision for the making good of any damage and/or the payment of compensation.

OFCOM now have the power to grant those affected by 'any restriction or condition subject to which that Code applies' (S119(2)(b)) legal advise and assistance, including the full cost of a legal challenge, where the case raises a question of principle, or it is unreasonable due to the complexity of the case for the claimant to fund it himself, or for any other special reason. This could be very useful for establishing points of law relating to any aspect of the Code. But would not be a general source of funding for the run of the mill challenge say under para 17 of the Code.

An interesting Section is 128 'Notification of Misuse of Networks and Services'. Subparagraph's 5 and 6 sets out what is meant by misuse:-

(5) For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if-
(a) the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or
(b) he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

(6) For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents-

(a) a pattern of behaviour or practice; or
(b) recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

Now can it be argued that the installing of masts without first obtaining planning permission and/or prior approval constitutes a breach of this provision. And can it be argued that the health effects of say a person in the special category of hyper sensitive to EMF emissions constitutes a breach. Planning Sanity argues, yes, providing the case is put forward in an appropriate way, and can be seen as a genuine breach. A clear case could be made out where say the noise from a mast was such that it caused annoyance. The remedy includes the ability of OFCOM to obtain an injunction to prevent the misuse continuing. And provides for compensation to be paid to the person who suffered (S129(7)):-

(7) References in this section to remedying the consequences of misuse include references to paying an amount to a person-
(a) by way of compensation for loss or damage suffered by that person; or
(b) in respect of annoyance, inconvenience or anxiety to which he has been put.

The real nail biter of the Act is Section 132 which gives the Secretary of State the power to order OFCOM to suspend or restrict the service of Electronic Communications in order 'to protect the public from any threat to public safety or public health'. When there is sufficient evidence to demonstrate a health risk, even if that is only in relation to the effect upon a small number of members of the public then the Secretary of State will be under intense political pressure to suspend services for any given installation, or perhaps in the case of TETRA the entire system. And of course it is potentially possible for a member of the public to seek judicial review of any failure on the part of the Secretary of State not to make an order. Planning Sanity will watch carefully for potential cases.