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Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (c)           require the removal of, or prohibit the use of, any apparatus lawfully

installed on, in or over any premises before that suspension.

     (12)   Subsection (9) of section 39 applies for the purposes of subsection (1) as it

applies for the purposes of that section.

 111   Procedure for directions under s. 110

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     (1)    Except in an urgent case, OFCOM are not to give a direction under section

110(4) suspending the application of the electronic communications code in the

case of any person (“the operator”) unless they have—

           (a)           notified the operator of the proposed suspension and of the steps (if

any) that they are proposing to take under section 114;

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           (b)           provided him with an opportunity of making representations about the

proposals and of proposing steps for remedying the situation that has

given rise to the proposed suspension; and

           (c)           considered every representation and proposal made to them during the

period allowed by them for the operator to take advantage of that

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opportunity.

     (2)    That period must be one ending not less than one month after the day of the

giving of the notification.

     (3)    As soon as practicable after giving a direction under section 110 in an urgent

case, OFCOM must, provide the operator with an opportunity of—

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           (a)           making representations about the effect of the direction and of any

steps taken under section 114 in connection with the suspension; and

           (b)           proposing steps for remedying the situation that has given rise to the

situation.

     (4)    A case is an urgent case for the purposes of this section if OFCOM—

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           (a)           consider that it would be inappropriate, because the circumstances

appearing to OFCOM to require the suspension fall within subsection

(5), to allow time, before giving a direction under section 110, for the

making and consideration of representations; and

           (b)           decide for that reason to act in accordance with subsection (3), instead

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of subsection (1).

     (5)    Circumstances fall within this subsection if they have resulted in, or create an

immediate risk of—

           (a)           a serious threat to the safety of the public, to public health or to national

security;

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           (b)           serious economic or operational problems for persons (apart from the

contravening provider or contravening supplier) who are

communications providers or persons who make associated facilities

available; or

           (c)           serious economic or operational problems for persons who make use of

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electronic communications networks, electronic communications

services or associated facilities.

 112   Modification and revocation of application of code

     (1)    OFCOM may at any time modify the terms on which, by virtue of section

103(5), the code is applied in a person’s case.

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    107

 

     (2)    OFCOM may revoke a direction applying the electronic communications code

in a person’s case if an application for the revocation has been made by that

person.

     (3)    If at any time it appears to OFCOM that a person in whose case the electronic

communications code has been applied is not the provider of an electronic

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communications network or conduit system for the purposes of which the code

applies, OFCOM may revoke the direction applying the code in his case.

     (4)    A modification or revocation under this section shall be by a further direction

under section 103 to the person in whose case the electronic communications

code has been applied by the direction being modified or revoked.

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     (5)    The matters required by section 104(8) to be included, in the case of a direction

for the purposes of this section, in the statement of OFCOM’s proposal are

whichever of the following is applicable—

           (a)           a statement of their proposal to modify terms imposed under section

103(5);

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           (b)           a statement of their proposal to revoke the direction applying the code.

 113   Notification of cessation by person to whom code applies

     (1)    This section applies where, by virtue of a direction under section 103, the

electronic communications code applies in any person’s case for the purposes

of the provision by him of—

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           (a)           an electronic communications network which is not of a description

designated for the purposes of section 30; or

           (b)           such a system of conduits as is mentioned in section 103(4)(b).

     (2)    If that person ceases to provide that network or conduit system, he must notify

OFCOM of that fact.

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     (3)    A notification under this section must be given within such period and in such

manner as may be required by OFCOM.

     (4)    OFCOM may impose a penalty on a person who fails to comply with a

requirement imposed by or under this section.

     (5)    The amount of a penalty imposed on a person under this section is to be such

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amount not exceeding £1,000 as OFCOM may determine to be both—

           (a)           appropriate; and

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

     (6)    Where OFCOM impose a penalty on a person under this section, they shall—

           (a)           within one week of making their decision to impose the penalty, notify

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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.

     (7)    A penalty imposed under this section—

           (a)           must be paid to OFCOM; and

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           (b)           if not paid within the period fixed by them, is to be recoverable by them

accordingly.

     (8)    The Secretary of State may by order amend this section so as to substitute a

different maximum penalty for the maximum penalty for the time being

specified in subsection (5).

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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     (9)    No order is to be made containing provision authorised by subsection (8)

unless a draft of the order has been laid before Parliament and approved by a

resolution of each House.

 114   Transitional schemes on cessation of application of code

     (1)    Where it appears to OFCOM—

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           (a)           that the electronic communications code has ceased or is to cease to

apply, to any extent, in the case of any person (“the former operator”),

           (b)           that it has ceased or will cease so to apply for either of the reasons

specified in subsection (2), and

           (c)           that it is appropriate for transitional provision to be made in connection

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with it ceasing to apply in the case of the former operator,

            they may by order make a scheme containing any such transitional provision

as they think fit in that case.

     (2)    Those reasons are—

           (a)           the suspension under section 110 of the application of the code in the

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former operator’s case;

           (b)           the revocation or modification under section 112 of the direction

applying the code in his case.

     (3)    A scheme contained in an order under this section may, in particular—

           (a)           impose any one or more obligations falling within subsection (4) on the

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former operator;

           (b)           provide for those obligations to be enforceable in such manner

(otherwise than by criminal penalties) and by such persons as may be

specified in the scheme;

           (c)           authorise the retention of apparatus on any land pending its

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subsequent use for the purposes of an electronic communications

network, electronic communications service or conduit system to be

provided by any person;

           (d)           provide for the transfer to such persons as may be specified in, or

determined in accordance with, the scheme of any rights or liabilities

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arising out of any agreement or other obligation entered into or

incurred in pursuance of the code by the former operator;

           (e)           provide, for the purposes of any provision contained in the scheme by

virtue of any of the preceding paragraphs, for such questions arising

under the scheme as are specified in the scheme, or are of a description

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so specified, to be referred to, and determined by, OFCOM.

     (4)    The obligations referred to in subsection (3)(a) are—

           (a)           an obligation to remove anything installed in pursuance of any right

conferred by or in accordance with the code;

           (b)           an obligation to restore land to its condition before anything was done

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in pursuance of any such right; or

           (c)            an obligation to pay the expenses of any such removal or restoration.

     (5)    Sections 107 to 109 apply in relation to the requirements imposed by virtue of

a scheme contained in an order under this section as they apply in relation to a

requirement imposed by virtue of restrictions or conditions under section 106.

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     (6)    Section 396 applies to the power of OFCOM to make an order under this

section.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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 115   Compulsory acquisition of land etc.

Schedule 4 (which provides for compulsory acquisition of land by the provider

of an electronic communications network in whose case the electronic

communications code applies and for entry on land by persons nominated by

such a provider) shall have effect.

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 116   Power to give assistance in relation to certain proceedings

     (1)    This section applies where any actual or prospective party to any proceedings

falling within subsection (2) (other than the operator, within the meaning of the

electronic communications code) applies to OFCOM for assistance under this

section in relation to those proceedings.

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     (2)    The proceedings falling within this subsection are any actual or prospective

proceedings in which there falls to be determined any question arising under,

or in connection with—

           (a)           the electronic communications code as applied in any person’s case by

a direction under section 103; or

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           (b)           any restriction or condition subject to which that code applies.

     (3)    OFCOM may grant the application if, on any one or more of the following

grounds, they think fit to do so—

           (a)           on the ground that the case raises a question of principle;

           (b)           on the ground that it is unreasonable, having regard to the complexity

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of the case or to any other matter, to expect the applicant to deal with

the case without assistance under this section;

           (c)           by reason of any other special consideration.

     (4)    Assistance by OFCOM under this section may include—

           (a)           giving advice or arranging for the giving of advice by a solicitor or

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counsel;

           (b)           procuring or attempting to procure the settlement of the matter in

dispute;

           (c)           arranging for the giving of any assistance usually given by a solicitor or

counsel—

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                  (i)                 in the steps preliminary or incidental to proceedings; or

                  (ii)                in arriving at, or giving effect to, a compromise to avoid

proceedings or to bring them to an end;

           (d)           arranging for representation by a solicitor or counsel;

           (e)           arranging for the giving of any other assistance by a solicitor or counsel;

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           (f)           any other form of assistance which OFCOM consider appropriate.

     (5)           Nothing in subsection (4)(d) shall be taken to affect the law and practice

regulating the descriptions of persons who may appear in, conduct or defend

any proceedings, or who may address the court in any proceedings.

     (6)    In so far as expenses are incurred by OFCOM in providing the applicant with

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assistance under this section, the recovery of those expenses (as taxed or

assessed in such manner as may be prescribed by rules of court) shall constitute

a first charge for the benefit of OFCOM—

           (a)           on any costs or expenses which (whether by virtue of a judgment or

order of a court, or an agreement or otherwise) are payable to the

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applicant by any other person in respect of the matter in connection

with which the assistance is given; and

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (b)           so far as relates to costs or expenses, on the applicant’s rights under a

compromise or settlement arrived at in connection with that matter to

avoid proceedings, or to bring them to an end.

     (7)    A charge conferred by subsection (6) is subject to—

           (a)           any charge imposed by section 10(7) of the Access to Justice Act 1999

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(c. 22) and any provision made by or under Part 1 of that Act for the

payment of any sum to the Legal Services Commission;

           (b)           any charge or obligation for payment in priority to other debts under

the Legal Aid (Scotland) Act 1986 (c. 47); or

           (c)           any charge under the Legal Aid, Advice and Assistance (Northern

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Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).

Regulation of premium rate services

 117   Conditions regulating premium rate services

     (1)    OFCOM shall have the power, for the purpose of regulating the provision,

content, promotion and marketing of premium rate services, to set conditions

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under this section that bind the persons to whom they are applied.

     (2)    Conditions under this section may be applied either—

           (a)           generally to every person who provides a premium rate service; or

           (b)           to every person who is of a specified description of such persons, or

who provides a specified description of such services.

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     (3)    The only provision that may be made by conditions under this section is

provision requiring the person to whom the condition applies to comply, to the

extent required by the condition, with—

           (a)                         directions given in accordance with an approved code by the

enforcement authority and for the purpose of enforcing its provisions;

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and

           (b)           if there is no such code, the provisions of the order for the time being in

force under section 119.

     (4)    The power to set a condition under this section includes power to modify or

revoke the conditions for the time being in force under this section.

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     (5)    Sections 44 and 45 apply to the setting, modification and revocation of a

condition under this section as they apply to the setting, modification and

revocation of a condition under section 42.

     (6)    OFCOM must send a copy of every notification published under section 45(1)

with respect to a condition under this section to the Secretary of State.

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     (7)    A service is a premium rate service for the purposes of this Chapter if—

           (a)           it is a service falling within subsection (8);

           (b)           there is a charge for the provision of the service;

           (c)           the charge is required to be paid to a person providing an electronic

communications service by means of which the service in question is

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provided; and

           (d)           that charge is imposed in the form of a charge made by that person for

the use of the electronic communications service.

     (8)    A service falls within this subsection if its provision consists in—

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (a)           the provision of the contents of communications transmitted by means

of an electronic communications network; or

           (b)           allowing the user of an electronic communications service to make use,

by the making of a transmission by means of that service, of a facility

made available to the users of the electronic communications service.

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     (9)    For the purposes of this Chapter a person provides a premium rate service

(“the relevant service”) if—

           (a)           he provides the contents of the relevant service;

           (b)                         he exercises editorial control over the contents of the relevant service;

           (c)                         he is a person who packages together the contents of the relevant

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service for the purpose of facilitating its provision;

           (d)                         he makes available a facility comprised in the relevant service; or

           (e)                         he falls within subsection (10) or (11).

     (10)          A person falls within this subsection if—

           (a)           he is the provider of an electronic communications service used for the

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provision of the relevant service; and

           (b)           under arrangements made with a person who is a provider of the

relevant service falling within subsection (9)(a) to (d), he is entitled to

retain some or all of the charges received by him in respect of the

provision of the relevant service or of the use of his electronic

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communications service for the purposes of the relevant service.

     (11)   A person falls within this subsection if—

           (a)           he is the provider of an electronic communications network used for

the provision of the relevant service; and

           (b)           an agreement relating to the use of the network for the provision of that

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service subsists between the provider of the network and a person who

is a provider of the relevant service falling within subsection (9)(a) to

(d).

     (12)          Where one or more persons are employed or engaged under the direction of

another to do any of the things mentioned in subsection (9)(a) to (d), only that

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other person shall be a provider of the relevant service for the purposes of this

Chapter.

     (13)   References in this section to a facility include, in particular, references to—

           (a)           a facility for making a payment for goods or services;

           (b)           a facility for entering a competition or claiming a prize; and

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           (c)           a facility for registering a vote or recording a preference.

     (14)   In this section—

                    “approved code” means a code for the time being approved under section

118; and

                    “enforcement authority”, in relation to such a code, means the person who

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under the code has the function of enforcing it.

 118   Approval of code for premium rate services

     (1)    If it appears to OFCOM—

           (a)           that a code has been made by any person for regulating the provision

and contents of premium rate services, and the facilities made available

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in the provision of such services;

 

 

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Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (b)           that the code contains provision for regulating, to such extent (if any)

as they think fit, the arrangements made by the providers of premium

rate services for promoting and marketing those services; and

           (c)           that it would be appropriate for them to approve that code for the

purposes of section 117,

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            they may approve that code for those purposes.

     (2)    OFCOM are not to approve a code for those purposes unless they are

satisfied—

           (a)           that there is a person who, under the code, has the function of

administering and enforcing it; and

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           (b)           that that person is sufficiently independent of the providers of

premium rate services;

           (c)           that adequate arrangements are in force for funding the activities of

that person in relation to the code;

           (d)           that the provisions of the code are objectively justifiable in relation to

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the services to which it relates;

           (e)           that those provisions are not such as to discriminate unduly against

particular persons or against a particular description of persons;

           (f)           that those provisions are proportionate to what they are intended to

achieve; and

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           (g)           that, in relation to what those provisions are intended to achieve, they

are transparent.

     (3)    The provision that may be contained in a code and approved under this section

includes, in particular, provision about the pricing of premium rate services

and provision for the enforcement of the code.

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     (4)    The provision for the enforcement of a code that may be approved under this

section includes—

           (a)           provision for the payment, to a person specified in the code, of a

penalty not exceeding the maximum penalty for the time being

specified in section 120(2);

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           (b)           provision requiring a provider of a premium rate service to secure that

the provision of the service is suspended or otherwise ceases or is

restricted in any respect;

           (c)           provision for the imposition on a person, in respect of a contravention

of the code, of a temporary or permanent prohibition or restriction on

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his working in connection with the provision of premium rate services

or, in the case of a body corporate, on its providing such services or on

its carrying on other activities in connection with their provision.

     (5)    OFCOM may, at any time, for the purposes of section 117

           (a)           approve modifications that have been made to an approved code; or

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           (b)           withdraw their approval from an approved code.

     (6)    Where OFCOM give or withdraw an approval for the purposes of section 117,

they must give notification of their approval or of its withdrawal.

     (7)    The notification must be published in such manner as OFCOM consider

appropriate for bringing it to the attention of the persons who, in OFCOM’s

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opinion, are likely to be affected by the approval or withdrawal.

 

 

 
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