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Communications Bill


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

    113

 

 119   Orders by OFCOM in the absence of a code under s. 118

     (1)    OFCOM may make an order under this section if, at any time, they consider

that there is no code in force to which they think it would be appropriate to

give, or to continue to give, their approval under section 118.

     (2)    An order under this section may make such of the following provisions as

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OFCOM think fit—

           (a)           provision imposing requirements with respect to the provision and

contents of premium rate services, and with respect to the facilities

made available in the provision of such services (including provision

about pricing);

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           (b)           provision imposing requirements with respect to the arrangements

made by the providers of premium rate services for the promotion and

marketing of those services;

           (c)           provision for the enforcement of requirements imposed by virtue of

paragraph (a) or (b);

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           (d)           provision making other arrangements for the purposes of those

requirements.

     (3)    The power to make provision by an order under this section includes, in

particular—

           (a)           power to establish a body corporate with the capacity to make its own

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rules and to establish its own procedures;

           (b)           power to determine the jurisdiction of a body established by such an

order or, for the purposes of the order, of any other person;

           (c)           power to confer jurisdiction with respect to any matter on OFCOM

themselves;

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           (d)           power to provide for a person on whom jurisdiction is conferred by the

arrangements to make awards of compensation, to direct the

reimbursement of costs or expenses, or to do both;

           (e)           power to provide for such a person to enforce, or to participate in the

enforcement of, any awards or directions made under such an order;

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           (f)                         power to make provision falling within section 118(4)(c) for the

enforcement of the provisions of the order; and

           (g)           power to make such other provision as OFCOM think fit for the

enforcement of such awards and directions.

     (4)    An order under this section may require such providers of premium rate

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services as may be determined by or under the order to make payments to

OFCOM in respect of expenditure incurred by OFCOM in connection with—

           (a)           the establishment and maintenance, in accordance with such an order,

of any body corporate or procedure; or

           (b)           the making of other arrangements for the purposes of the requirements

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of such an order.

     (5)    The consent of the Secretary of State is required for the making by OFCOM of

an order under this section.

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

section.

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     (7)    A statutory instrument containing an order made by OFCOM under this

section shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

 

 

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

    114

 

 120   Enforcement of s. 117 conditions

     (1)    Sections 91 to 93 apply in relation to a contravention of conditions set under

section 117 as they apply in relation to a contravention of a condition set under

section 42.

     (2)    The amount of the penalty imposed under section 93 as applied by this section

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is to be such amount not exceeding £100,000 as OFCOM determine to be—

           (a)           appropriate; and

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

     (3)    In making that determination OFCOM must have regard to—

           (a)           any representations made to them by the notified provider;

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           (b)           any steps taken by him towards complying with the conditions

contraventions of which have been notified to him under section 91 (as

applied); and

           (c)           any steps taken by him for remedying the consequences of those

contraventions.

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     (4)    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 (2).

     (5)    No order is to be made containing provision authorised by subsection (4)

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

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resolution of each House.

 121   Suspending service provision for contraventions of s. 117 conditions

     (1)    OFCOM may give a direction under this section to a person who is a

communications provider (“the contravening provider”) if they are satisfied—

           (a)           that he is or has been in serious and repeated contravention of

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conditions set under section 117;

           (b)           that an attempt, by the imposition of penalties or the giving of

enforcement notifications under section 92 (as applied by section 120)

or both, to secure compliance with the contravened conditions has

failed;

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           (c)           that the giving of the direction is appropriate and proportionate to the

seriousness (when repeated as they have been) of the contraventions;

and

           (d)           that the giving of the direction is required for reasons of public policy.

     (2)           OFCOM may also give a direction under this section to a person who is a

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communications provider (“the contravening provider”) if they are satisfied—

           (a)           that he is, or has been, in contravention of conditions set under section

117 in respect of a premium rate service;

           (b)           that the circumstances of the contravention make it appropriate for

OFCOM to suspend or restrict the provision of premium rate services

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provided by the contravening provider without the conditions set out

in subsection (1) being satisfied; and

           (c)           that in those circumstances the giving of the direction is urgently

required for reasons of public policy.

     (3)    A direction under this section is—

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

    115

 

           (a)           a direction to the contravening provider to secure the suspension of the

provision of premium rate services provided by him; or

           (b)                         a direction requiring him to secure compliance with restrictions, set out

in the direction, on the provision of such services.

     (4)    A direction under this section—

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           (a)           must specify the services to which it relates; and

           (b)           except so far as it otherwise provides, takes effect for an indefinite

period beginning with the time at which it is notified to the person to

whom it is given.

     (5)    A direction under this section—

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           (a)           in providing for the effect of a suspension or restriction to be

postponed, may provide for it to take effect only at a time determined

by or in accordance with the terms of the direction; and

           (b)           in connection with the suspension or restriction contained in the

direction or with the postponement of its effect, may impose such

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conditions on the contravening provider as appear to OFCOM to be

appropriate for the purpose of protecting that provider’s customers.

     (6)    Those conditions may include a condition requiring the making of payments—

           (a)           by way of compensation for loss or damage suffered by the

contravening provider’s customers as a result of the direction; or

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           (b)           in respect of annoyance, inconvenience or anxiety to which they have

been put in consequence of the direction.

     (7)    If OFCOM consider it appropriate to do so (whether or not in consequence of

representations or proposals made to them), they may revoke a direction under

this section or modify its conditions—

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           (a)           with effect from such time as they may direct;

           (b)           subject to compliance with such requirements as they may specify; and

           (c)           to such extent and in relation to such services as they may determine.

     (8)    Sections 99 and 100 apply in the case of a direction under this section as they

apply in the case of a direction under section 97, but as if references in section

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100(1) to an electronic communications network or electronic communications

service were references to a premium rate service.

     (9)    For the purposes of this section there are repeated contraventions by a person

of conditions set under section 117 to the extent that—

           (a)           in the case of a previous notification given to that person under section

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section 91 (as applied by section 120), OFCOM have determined for the

purposes of section 92(2) or 93(2) (as so applied) that such a

contravention did occur; and

           (b)           in the period of twelve months following the day of the making of that

determination, one or more further notifications have been given to

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that person in respect of contraventions of a condition set under section

117.

     (10)   For the purposes of this section the seriousness of repeated contraventions of

conditions set under section 117 has to be determined by reference to the

seriousness of the contraventions of the approved code or order by reference

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to which the conditions have effect.

 

 

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

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Offences relating to networks and services

 122   Dishonestly obtaining electronic communications services

     (1)    A person who—

           (a)           dishonestly obtains an electronic communications service, and

           (b)           does so with intent to avoid payment of a charge applicable to the

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provision of that service,

            is guilty of an offence.

     (2)    It is not an offence under this section to obtain a service mentioned in section

297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly

obtaining a broadcasting or cable programme service provided from a place in

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the UK).

     (3)    A person guilty of an offence under this section shall be liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding six

months or to a fine not exceeding the statutory maximum, or to both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

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five years or to a fine, or to both.

 123   Possession or supply of apparatus etc. for contravening s. 122

     (1)    A person is guilty of an offence if, with an intention falling within subsection

(3), he has in his possession or under his control anything that may be used—

           (a)           for obtaining an electronic communications service; or

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           (b)           in connection with obtaining such a service.

     (2)    A person is guilty of an offence if—

           (a)           he supplies or offers to supply anything which may be used as

mentioned in subsection (1); and

           (b)           he knows or believes that the intentions in relation to that thing of the

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person to whom it is supplied or offered fall within subsection (3).

     (3)    A person’s intentions fall within this subsection if he intends—

           (a)           to use the thing to obtain an electronic communications service

dishonestly;

           (b)           to use the thing for a purpose connected with the dishonest obtaining

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of such a service;

           (c)           dishonestly to allow the thing to be used to obtain such a service; or

           (d)           to allow the thing to be used for a purpose connected with the dishonest

obtaining of such a service.

     (4)    An intention does not fall within subsection (3) if it relates exclusively to the

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obtaining of a service mentioned in section 297(1) of the Copyright, Designs

and Patents Act 1988.

     (5)    A person guilty of an offence under this section shall be liable—

           (a)           on summary conviction, to imprisonment for a term not exceeding six

months or to a fine not exceeding the statutory maximum, or to both;

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and

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

five years or to a fine, or to both.

 

 

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

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     (6)    In this section, references, in the case of a thing used for recording data, to the

use of that thing include references to the use of data recorded by it.

 124   Improper use of public electronic communications network

     (1)    A person is guilty of an offence if he—

           (a)           sends by means of a public electronic communications network a

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message or other matter that is grossly offensive or of an indecent,

obscene or menacing character; or

           (b)           causes any such message or matter to be so sent.

     (2)    A person is guilty of an offence if, for the purpose of causing annoyance,

inconvenience or needless anxiety to another, he—

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           (a)           sends by means of a public electronic communications network, a

message that he knows to be false,

           (b)           causes such a message to be sent; or

           (c)           persistently makes use of a public electronic communications network.

     (3)    A person guilty of an offence under this section shall be liable, on summary

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conviction, to imprisonment for a term not exceeding six months or to a fine

not exceeding level 5 on the standard scale, or to both.

     (4)    Subsections (1) and (2) do not apply to anything done in the course of

providing a programme service (within the meaning of the Broadcasting Act

1990 (c. 42)).

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Persistent misuse of network or service

 125   Notification of misuse of networks and services

     (1)    Where OFCOM determine that there are reasonable grounds for believing that

a person has persistently misused an electronic communications network or

electronic communications services, they may give that person a notification

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under this section.

     (2)    A notification under this section is one which—

           (a)           sets out the determination made by OFCOM;

           (b)           specifies the use that OFCOM consider constitutes persistent misuse;

and

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           (c)           specifies the period during which the person notified has an

opportunity of making representations about the matters notified.

     (3)    That period must not be less than the following—

           (a)           in an urgent case, seven days; and

           (b)           in any other case, one month.

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     (4)    A case is an urgent case for the purposes of subsection (3) if OFCOM

consider—

           (a)           that the misuse in question is continuing; and

           (b)           that the harm it causes makes it necessary for it to be stopped as soon

as possible.

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     (5)    For the purposes of this Chapter a person misuses an electronic

communications network or electronic communications service if—

 

 

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

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           (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

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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—

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           (a)           a pattern of behaviour or practice; or

           (b)           recklessness as to whether persons suffer annoyance, inconvenience or

anxiety.

     (7)    For the purpose of determining whether misuse on a number of different

occasions constitutes persistent misuse for the purposes of this Chapter, each

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of the following is immaterial—

           (a)           that the misuse was in relation to a network on some occasions and in

relation to a service on others;

           (b)           that different networks or services were involved on different

occasions; and

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           (c)           that the persons who were or were likely to suffer annoyance

inconvenience or anxiety were different on different occasions.

     (8)    If he considers that appropriate alternative means of dealing with it exists, the

Secretary of State may by order provide that a use of a description specified in

the order is not to be treated for the purposes of this Chapter as a misuse of an

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electronic communications network or electronic communications service.

 126   Enforcement notifications for stopping persistent misuse

     (1)    This section applies where—

           (a)           a person (“the notified misuser”) has been given a notification under

section 125;

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           (b)           OFCOM have allowed the notified misuser an opportunity of making

representations about the matters notified; and

           (c)           the period allowed for the making of the representations has expired.

     (2)    OFCOM may give the notified misuser an enforcement notification if they are

satisfied—

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           (a)           that he has, in one or more of the notified respects, persistently misused

an electronic communications network or electronic communications

service; and

           (b)           that he has not, since the giving of the notification, taken all such steps

as OFCOM consider appropriate for—

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                  (i)                 securing that his misuse is brought to an end and is not

repeated; and

                  (ii)                remedying the consequences of the notified misuse.

     (3)    An enforcement notification is a notification which imposes a requirement on

the notified misuser to take all such steps for—

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           (a)           securing that his misuse is brought to an end and is not repeated, and

           (b)           remedying the consequences of the notified misuse,

 

 

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

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            as may be specified in the notification.

     (4)    A decision of OFCOM to give an enforcement notification to a person must fix

a reasonable period for the taking of the steps required by the notification.

     (5)    It shall be the duty of a person to whom an enforcement notification has been

given to comply with it.

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     (6)    That duty shall be enforceable in civil proceedings by OFCOM—

           (a)           for an injunction;

           (b)           for specific performance of a statutory duty under section 45 of the

Court of Session Act 1988 (c. 36); or

           (c)           for any other appropriate remedy or relief.

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     (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.

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 127   Penalties for persistent misuse

     (1)    This section applies (in addition to section 126) where—

           (a)           a person (“the notified misuser”) has been given a notification under

section 125;

           (b)           OFCOM have allowed the notified misuser an opportunity of making

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representations about the matters notified; and

           (c)           the period allowed for the making of the representations has expired.

     (2)    OFCOM may impose a penalty on the notified misuser if he has, in one or more

of the notified respects, persistently misused an electronic communications

network or electronic communications service.

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     (3)    OFCOM may also impose a penalty on the notified misuser if he has

contravened a requirement of an enforcement notification given in respect of

the notified misuse.

     (4)    The amount of a penalty imposed is to be such amount not exceeding £5,000 as

OFCOM determine to be—

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           (a)           appropriate; and

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

     (5)    In making that determination OFCOM must have regard to—

           (a)           any representations made to them by the notified misuser;

           (b)           any steps taken by him for securing that his misuse is brought to an end

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and is not repeated; and

           (c)           any steps taken by him for remedying the consequences of the notified

misuse.

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

           (a)           notify the person penalised; and

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           (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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