Ofcom is proposing that regulations be introduced that will regulate electrical and electronic apparatus to ensure that such equipment is operated in a manner that does not cause undue interference to wireless telegraphy equipment after it has been placed on the market or put into service. The proposed draft regulations have been referred to as the Wireless Telegraphy (Control of Interference from Apparatus) Regulations 2015 (the “Proposed Regulations”).
S.54 of the Wireless Telegraphy Act 2006 (“WTA”) provides Ofcom with the power to put in place regulations setting out the requirements that apparatus must comply with when in use (“Regulations”). Under S.55 of the WTA Ofcom is granted the power to issue notices prohibiting the use of apparatus where the apparatus does not comply with the Regulations and either of the following conditions is satisfied:
- the use of the apparatus is likely to cause undue interference with wireless telegraphy used for the purposes of a safety of life service or for the purpose on which the safety of a person, or of a ship, aircraft or vehicle, may depend (“Condition 1”); or
- the use of the apparatus is likely to cause undue interference with wireless telegraphy, other than wireless telegraphy falling within Condition 1, and the use has caused, or is causing interference, and Ofcom considers that all reasonable steps have been taken to minimise interference with the wireless telegraphy which is being interfered with (“Condition 2”).
Under the WTA interference with wireless telegraphy is not regarded as being undue unless it is harmful. Interference is harmful where it: (i) creates danger, or risks of danger, in relation to the functioning of a wireless telegraphy service; or (ii) it degrades, obstructs or repeatedly interrupts anything which is being broadcast or transmitted lawfully by wireless telegraphy.
The Proposed Regulations require that when in use apparatus must operate in such a way so that the electromagnetic disturbance it creates does not exceed the level set out in Directive 2004/108/EC (the “EMC Directive”) at the time when it was placed on the market, or put in to service, in the Community (the “Restriction on Use”). The EMC Directive sets out specific requirements that effectively limit the electromagnetic emissions of apparatus when they are placed on the market, or put in to service, but these limits do not continue to apply once the apparatus has reached the end user.
For a device to constitute apparatus under the Proposed Regulations it must: (i) be a finished appliance or combination of appliances; (ii) be liable to generate electromagnetic disturbance or be affected by such disturbance; and (iii) generate, be designed to generate or is liable to generate fortuitously electromagnetic energy at frequencies not exceeding 3,000 gigahertz. The Proposed Regulations are therefore intended to ensure that the limits placed on electromagnetic emissions when they are placed on the market, or put in to service, continue to apply once the apparatus has reached the end user and the apparatus is being used.
However, it is also worth noting that the Restriction on Use will only apply in relation to apparatus which: (i) is in use after it has been placed on the market or put into service; (ii) cannot be withdrawn from the market in accordance with the EMC Directive or the implementing legislation in the UK (the Electromagnetic Compatibility Regulations 2006); and (iii) is improperly installed, assembled, maintained, functioning due to degradation, deterioration, modification or damage or used for a purpose other than its intended purpose.
The Proposed Regulations have been drafted to combat issues that Ofcom is facing when trying to prevent undue interference with communications networks. In particular they are aimed at enabling Ofcom to take enforcement action where apparatus that has been incorrectly installed, assembled and maintained or is being used incorrectly results in excessive levels of electromagnetic disturbance. At present, Ofcom has limited statutory powers to combat these problems as the provisions of the EMC Regulations (which implement the EMC Directive) only focus on the electromagnetic emissions of devices at specific points in time (when they are placed on the market or put in to service). Ofcom also requires secondary legislation to be enacted under S.54 of the WTA before it is able to exercise its enforcement powers under S.55 of the WTA. At present it says that it has to rely on the goodwill and co-operation of end users to remedy problems with devices that are causing undue interference to communications networks.
If the Proposed Regulations are enacted in their current form it will be important that users of apparatus ensure that their devices are not causing undue interference or else they may find themselves being presented with a notice under S.55 WTA prohibiting the use of the offending apparatus or requiring it to be used in a certain manner. Failure to comply with such a notice could result in a fine being issued by Ofcom. To avoid these potential consequences, end users that have apparatus installed and/or maintained (not just wireless appliances but any appliances satisfying the criteria for apparatus above that produces electromagnetic radiation) by third parties might want to consider including within their agreements with third parties provisions requiring compliance with the Proposed Regulations and providing defined remedies for any such failures.
The Proposed Regulations, as currently drafted, also make reference to the regulations not applying to apparatus “covered” by the Radio Equipment and Telecommunications Terminal Equipment Directive (1995/5/EC). A literal application of this clause could result in arguments being raised that equipment that is capable of communication by means of the emission and/or reception of radio waves (radio equipment) and terminal equipment being excluded from the scope of the Proposed Regulations, seemingly conflicting with Ofcom’s purpose for implementing the Proposed Regulations and effectively rendering them unworkable. It is also interesting that reference has not been made to the Radio Equipment Directive (2014/53/EU) which has yet to be transposed into national law in England & Wales. No doubt the Proposed Regulations will need to be revisited when that transposition occurs.
Ofcom requested that written views and comments on the issues, raised in its consultation on the Proposed Regulations were made by 16 February 2015. We will provide a further update once Ofcom has considered the views and comments received from Stakeholders.