Our approach to compliance and enforcement
As the statutory regulator for communications, Ofcom manages the use of the electromagnetic spectrum – the airwaves that are used for wireless communications such as mobile phones, Wi-Fi and GPS. Using airwaves in this way is known as wireless telegraphy.
One way in which we manage the use of spectrum is by ensuring anyone who uses spectrum complies with rules relating to its use. These rules are contained in:
- licences issued by Ofcom which authorise the use of spectrum subject to the terms and conditions of the licence (including any technical parameters in schedules and any applicable general licence conditions). These licences are sometimes referred to as wireless telegraphy or radiocommunications licences;
- regulations which exempt users of some equipment from the requirement to hold a licence; and
- legislation including the Wireless Telegraphy Act 2006 (WTA), Radio Equipment Regulations 2017 (RER) and the Electromagnetic Compatibility Regulations 2016 (EMCR), as amended.
In many cases, we achieve compliance by engaging with stakeholders to make our expectations clear and promoting good standards of behaviour.
But in some cases, we may decide to investigate potential non-compliance – and possibly take enforcement action to ensure the law is complied with.
For example, we may consider it appropriate to take enforcement action to:
- prevent widespread harmful interference;
- ensure harmful non-compliant radio or electrical equipment is kept off the market;
- ensure public safety e.g. ensure compliance with limits on exposure to electromagnetic fields (EMF); and
- immediately deal with other serious risks.
We exercise our discretion and decide what approach is the most appropriate and proportionate in the circumstances. This generally happens in two stages:
- We decide whether to carry out an investigation.
- If we decide to carry out an investigation, we (i) review the evidence gathered; and (ii) decide whether to take enforcement action and, if so, what type of action is the most appropriate.
Our approach to compliance is guided by section 3 of the Communications Act 2003 and section 3 of the WTA. The legislation explains how we should perform our duties and exercise our functions relating to the management of the radio spectrum. It also explains that our regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.
We exercise our discretion in deciding whether to investigate potential non-compliance. We generally prioritise and focus our resources on more serious examples of non-compliance where we consider intervention to be necessary.
In doing so, we will generally take a risk-based approach and consider the following factors as appropriate on a case-by-case basis (although other factors may also be relevant):
- the severity and scale of any potential or actual harm;
- the seriousness of any potential non-compliance; and
- the wider impact and consequences, including the public interest.
We cannot pursue every possible issue that comes to our attention and must make decisions balancing the likely benefits against the resources required, and the comparative benefits of using those resources in other ways.
We may carry out an investigation in response to a complaint or report of non-compliance. We also use an intelligence-led approach to proactively carry out inspections to ensure use of radio equipment is complying with the law. For example, we may inspect:
- recently licensed radio equipment;
- suspected unlicensed use of radio equipment where a licence has been revoked or surrendered; or
- general compliance with all the terms and conditions of a licence.
Our teams of field officers have rights to enter premises, and test and inspect installations and equipment. These inspections can be unannounced.
If the evidence gathered during our investigation indicates that a person’s use of radio equipment does not comply with the law then we may consider it necessary to take enforcement action.
We have various powers to obtain information and other evidence to help us decide whether a person may be complying with the law. These include:
- powers to enter premises to search, inspect, examine, seize and/or detain evidence or radio equipment (i) with a search warrant issued by a Court, including under sections 59, 97, 99 and 101 and Schedule 6 of the WTA; and (ii) without a warrant, including under section 89 of the WTA;
- powers under Schedule 5, Part 4 of the Consumer Rights Act 2015 (CRA) to enter premises with or without a warrant to search, inspect, examine, seize and/or detain evidence or radio equipment in order to ensure compliance with the Radio Equipment Regulations 2017 (RER) and the Electromagnetic Compatibility Regulations 2016 (EMCR) – see Schedule 10, Part 1, paragraph 3 of the RER and Schedule 7, Part 1, paragraph 3 of the EMCR;
- powers in licences, including to request information relating to radio equipment;
- powers to carry out interviews under caution in accordance with the rules set out in the Police and Criminal Evidence Act 1984 (PACE). See PACE Codes C, E and F;
- powers under Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) to carry out certain types of surveillance, including for the purpose of preventing or detecting crime or preventing disorder (see Schedule 1, Part 1, paragraph 23A of the RIPA and Schedule 1, Part 1 of the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010). It is Ofcom’s policy to comply with the Home Office Covert Surveillance and Property Interference Code of Practice;
- powers under section 48 of the Investigatory Powers Act 2016 (IPA) to intercept and disclose wireless telegraphy communications for the purpose of preventing or detecting interference to wireless telegraphy, granting wireless telegraphy licences or enforcing provisions of the WTA;
- powers under section 61 of the Investigatory Powers Act 2016 (IPA) to obtain communications data (identified in Schedule 4, Part 1 of the IPA), including for the purpose of preventing or detecting crime or preventing disorder;
- powers under section 32A of the WTA to require persons to provide us with information considered necessary for us to carry out our spectrum management functions; and
- powers under the Consumer Rights Act 2015 (CRA) to require persons to provide us with information (Schedule 5, Part 3, paragraph 14 of the CRA) and documents (Schedule 5, Part 4, paragraph 27 of the CRA) to ensure compliance with the Radio Equipment Regulations 2017 (RER) and the Electromagnetic Compatibility Regulations 2016 (EMCR) – see Schedule 10, Part 1, paragraph 3 of the RER and Schedule 7, Part 1, paragraph 3 of the EMCR.
We may take enforcement action against any person who is legally culpable. This includes licensees as well as persons that do not hold a licence.
Licensees remain ultimately responsible for compliance with all the terms and condition of their licence (including any technical parameters) when they allow a third party (e.g. the captain of a ship or aircraft, transmission provider or site provider) to install or control their radio equipment. For this reason, it is important that licensees take appropriate steps to ensure any third party in control of their radio equipment is informed of, and adheres to, all the terms and conditions of the licence. If they do not, then we may take action against the third party and/or the licensee. Licensees may decide to include contractual clauses relating to compliance with all the terms and conditions of the licence in any agreements they enter into with third parties.
We have a range of enforcement options available to us. These include:
Where we have reasonable grounds for believing a person has failed to comply with their licence or licence exemption regulations, we can issue a Contravention Notice under section 39 of the WTA. The Notice will allow the person a period of time to comply with the Notice.
A Contravention Notice may be followed by another type of enforcement action such as a written warning or, for serious breaches, we may consider it appropriate to subsequently open a regulatory investigation.
We may issue a written warning to any person that we believe has not complied with the law. A written warning may be used in combination with other types of enforcement action we may take.
Fixed Penalty Notice (FPN)
We may issue a FPN in lieu of pursuing a prosecution for various offences we have reason to believe have been committed (including breach of licence or licence exemption regulations and other unauthorised use of equipment).
FPNs are sent by post to an alleged offender, who then has one month to choose one of the following options:
- Pay the fixed penalty of £100.
- Make representations to Ofcom to explain why they should not be penalised. Persons are advised to pay the penalty while Ofcom considers their case and, if their representations are accepted, they will be reimbursed.
- Ask to be tried for the offence by a Court.
FPNs are issued in accordance with the procedure in Schedule 4 of the WTA and the Wireless Telegraphy (Fixed Penalty) Regulations 2011.
We may pursue a criminal prosecution for various offences, for example:
- under sections 8 and 35 of the WTA, where a person uses radio equipment without a licence (and that equipment is not exempt) including illegal broadcasting (pirate radio) and unauthorised use of repeaters;
- under sections 8, 35 and 41 of the WTA, where a person uses radio equipment in breach of its licence or the licence exemption regulations and fails to comply with the conditions imposed by Ofcom in a section 39 Contravention Notice;
- under sections 8, 35 and 41(4) of the WTA, where a person has failed to comply with their licence or licence exemption regulations and we consider it would be inappropriate to issue a Contravention Notice because the breach is causing an immediate risk of (i) a serious threat to the safety of the public, to public health or to national security; or (ii) serious economic or operational problems for other spectrum users;
- under section 48 of the WTA, where a person uses radio equipment for unauthorised interception or disclosure of messages;
- under section 68 of the WTA, where a person deliberately interferes with radio equipment, for example using a jammer;
- under Schedule 4, paragraph 7 of the WTA, where a person fails to respond to a Fixed Penalty Notice or asks to be tried for the offence by a Court instead of paying the penalty in the Notice;
- under Regulation 65 of the Radio Equipment Regulations 2017 (RER) and Regulation 61 of the Electromagnetic Compatibility Regulations 2016 (EMCR), where a person fails to comply with an applicable requirement of the RER or EMCR or a notice requiring a person to withdraw or recall equipment; and
- under section 33 of the WTA where a person knowingly or recklessly provides materially false information to Ofcom in response to a request for information under section 32A of the WTA.
There are distinct legal processes that Ofcom must follow before a prosecution can be commenced in the different nations of the UK.
In England, Wales and Northern Ireland, we can instruct solicitors on our behalf to initiate a private prosecution. We decide whether to prosecute after considering the guidance set out by the Director of Public Prosecutions in the Code for Crown Prosecutors (England and Wales) or the guidance set out in Section 4 of the Public Prosecution Service Code for Prosecutors (Northern Ireland). For a prosecution to go ahead, we need to be satisfied there is sufficient evidence to provide a realistic prospect of conviction and that a prosecution would be in the public interest.
In Scotland, we decide whether to report a case to the Procurator Fiscal with a view to prosecution. While Ofcom’s views will typically be taken into account, the Procurator Fiscal will decide whether to bring a prosecution based on whether they are satisfied that there is sufficient evidence and that prosecution is in the public interest in accordance with the principles in the Crown Office and Procurator Fiscal Service Prosecution Code.
If a case is taken to Court, a conviction can result in a range of penalties, including an unlimited fine and/or a prison sentence.
A Court may also order that radio equipment is forfeited to Ofcom under Schedule 5 of the WTA. Further, a Court may, under Regulation 71 of the RER and/or Regulation 66 of the EMCR, require persons found guilty of an offence under Regulation 65 of the RER and/or Regulation 61 of the EMCR to pay to Ofcom its costs of investigating that offence.
We may issue a caution to any person that admits they have not complied with the law in circumstances where we could otherwise have brought a prosecution.
Licence revocation or variation
We may revoke or vary a licence in accordance with the procedure in paragraphs 6, 6A and 7 of Schedule 1 of the WTA. Further information on the revocation of licences is available in our Licensing Policy Manual (and we intend to publish an updated version of that Manual shortly).
Financial penalty following regulatory investigation
We may take regulatory action under section 42 of the WTA for breach of a licence following our enforcement guidelines for regulatory investigations. We recently consulted on a new version of these guidelines and our proposed approach to licence breaches is set out in Annex A10. Under section 43(2A) of the WTA, this can result in Ofcom issuing a financial penalty of up to 10% of annual turnover being imposed on a licensee.
We may also take regulatory action under sections 32C – 32E of the WTA if a person does not provide an accurate or complete response to a request for information under section 32A of the WTA by the deadline. This can result in Ofcom issuing on a licensee a one-off penalty of up to £2 million and/or a penalty of up to £20,000 for each day that the breach continues.
We cannot take regulatory action for criminal offences under the WTA, including under sections 8, 11, 35 – 38, 46 – 48, 51, 53, 58, 60, 66, 68, 77 – 87, 98 and 100 (except where the breach involves a breach of the terms and condition of licence).
Compliance, withdrawal and recall notices under the Radio Equipment Regulations 2017 (RER) or Electromagnetic Compatibility Regulations 2016 (EMCR)
We can serve compliance notices under Part 5 and Schedule 10, Part 2 of the RER and Part 5 and Schedule 7, Part 2 of the EMCR, requiring persons to comply with the RER and EMCR within a specified period of time. We can also issue notices requiring persons to withdraw or recall equipment.
Publication of names of spectrum users
We may consider it appropriate to publish the names of spectrum users (including licensees and third parties) that fail to co-operate with an investigation or take action to comply with the law.
Ofcom will consider all relevant factors when deciding whether to take enforcement action and, if so, what type of enforcement action may be the most appropriate. These may include the following factors (as appropriate), although other factors may also be relevant:
- The evidential and public interest tests in the Code for Crown Prosecutors.
- Deterring future breaches by the alleged offender and more generally.
- The seriousness and duration of the breach.
- The extent of harm (whether actual or potential) caused by the breach.
- Any steps taken to ensure compliance prior to the breach occurring. This includes any steps taken to ensure any third party that installs or is in control of radio equipment (e.g. the captain of a ship or aircraft, transmission provider or site provider) is informed of, and adheres to, all the terms and conditions of the licence.
- Whether the breach is still ongoing.
- Any steps taken to remedy the consequences of the breach.
- Any gain (financial or otherwise) made as a result of the breach.
- Whether the breach was intentional (for example, where there has been a deliberate attempt to deceive Ofcom), reckless or foreseeable.
- Whether the alleged offender has a history of similar breaches or a poor record of compliance.
As explained above, we cannot take all types of enforcement action for all types of breach committed by all persons.
For information on compliance and enforcement relating to breach of licence conditions requiring licensees to comply with the limits on exposure to electromagnetic fields (EMF) for the protection of the general public, please see our separate guidance on EMF compliance and enforcement.