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Communications Bill


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

    41

 

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum;

           (b)           on conviction on indictment, to a fine.

     (3)    The duty of a person to comply with a condition of a direction under section 39

shall be a duty owed to every person who may be affected by a contravention

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of the condition.

     (4)    Where a duty is owed by virtue of subsection (3) to a person—

           (a)           a breach of the duty that causes that person to sustain loss or damage,

and

           (b)           an act which—

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                  (i)                 by inducing a breach of the duty or interfering with its

performance, causes that person to sustain loss or damage, and

                  (ii)                is done wholly or partly for achieving that result,

            shall be actionable at the suit or instance of that person.

     (5)    In proceedings brought against a person by virtue of subsection (4)(a) it shall

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be a defence for that person to show that he took all reasonable steps and

exercised all due diligence to avoid contravening the condition in question.

     (6)    Sections 91 to 96 apply in relation to a contravention of conditions imposed by

a direction under section 39 as they apply in relation to a contravention of

conditions set under section 42.

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Register of providers required to notify or to pay charges

 41    Duty of OFCOM to keep publicly accessible register

     (1)    It shall be the duty of OFCOM to establish and maintain a register for the

purposes of section 30.

     (2)    OFCOM must record in the register—

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           (a)           every designation by them for the purposes of section 30 or 35;

           (b)           every withdrawal by them of such a designation;

           (c)           every notification given to them under section 30; and

           (d)           every notification treated as given to them under that section by a

transitional provision made under subsection (12) of that section.

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     (3)    Information recorded in the register must be so recorded in such manner as

OFCOM consider appropriate.

     (4)    It shall be the duty of OFCOM to publish a notification setting out—

           (a)           the times at which the register is for the time being available for public

inspection; and

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           (b)           the fees that must be paid for, or in connection with, an inspection of

the register.

     (5)    The publication of a notification under subsection (4) must be in such manner

as OFCOM consider appropriate for bringing it to the attention of the persons

who, in their opinion, are likely to be affected by it.

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     (6)    OFCOM must make the register available for public inspection—

           (a)           during such hours, and

           (b)           on payment of such fees,

 

 

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

    42

 

            as are set out in the notification for the time being in force under subsection (4).

Conditions of entitlement to provide network or service etc.

 42    Power of OFCOM to set conditions

     (1)    OFCOM shall have the power to set conditions under this section binding the

persons to whom they are applied in accordance with section 43.

5

     (2)    A condition set by OFCOM under this section must be either—

           (a)           a general condition; or

           (b)           a condition of one of the following descriptions—

                  (i)                 a universal service condition;

                  (ii)                an access-related condition;

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                  (iii)               a privileged supplier condition;

                  (iv)                a significant market power condition (an “SMP condition”).

     (3)    A general condition is a condition which contains only provisions authorised

or required by one or more of sections 48, 49, 54, 55 or 61.

     (4)    A universal service condition is a condition which contains only provisions

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authorised or required by section 64.

     (5)    An access-related condition is a condition which contains only provisions

authorised by section 70.

     (6)    A privileged supplier condition is a condition which contains only the

provision required by section 74.

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     (7)    An SMP condition is either—

           (a)           an SMP services condition; or

           (b)           an SMP apparatus condition.

     (8)    An SMP services condition is a condition which contains only provisions

which—

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           (a)           are authorised or required by one or more of sections 84 to 89; or

           (b)           in the case of a condition applying to a person falling within section

43(8)(b), correspond to provision authorised or required by one or more

of sections 84 to 86.

     (9)    An SMP apparatus condition is a condition containing only provisions

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authorised by section 90.

     (10)   OFCOM’s power to set a condition under this section making provision

authorised or required by this Chapter includes each of the following—

           (a)           power to impose a requirement on the person or persons to whom the

condition is applied to comply with such directions with respect to the

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matters to which the condition relates as may be given from time to

time by OFCOM or by another person specified in the condition;

           (b)           power to impose an obligation with respect to those matters that is

framed by reference to, or is conditional upon, the giving of a consent

or of an approval, or on the making of a recommendation, by OFCOM

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or by another person so specified;

           (c)           power, for the purposes of provision made by virtue of either of the

preceding paragraphs, to confer a discretion exercisable from time to

 

 

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

    43

 

           (c)           time by OFCOM or by another person specified in the condition or

determined in accordance with provision contained in it;

           (d)           power (subject to section 48(3)) to set different conditions for different

cases (including different conditions in relation to different parts of the

United Kingdom); and

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           (e)           power to revoke or modify the conditions for the time being in force.

     (11)   The directions that may be authorised by virtue of subsection (10) do not

include directions withdrawing, suspending or restricting a person’s

entitlement—

           (a)           to provide, in whole or in part, any electronic communications network

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or electronic communications service; or

           (b)           to make available, in whole or in part, any associated facilities.

 43    Persons to whom conditions may apply

     (1)    A condition set under section 42 is not to be applied to a person except in

accordance with the following provisions of this section.

15

     (2)    A general condition may be applied generally—

           (a)           to every person providing an electronic communications network or

electronic communications service; or

           (b)           to every person providing such a network or service of a particular

description specified in the condition.

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     (3)    A universal service condition, access-related condition, privileged supplier

condition or SMP condition may be applied to a particular person specified in

the condition.

     (4)    A privileged supplier condition may also be applied generally—

           (a)           to every person to whom such a condition is required to apply under

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section 74; or

           (b)           to every such person who is of a particular description specified in the

condition.

     (5)    The particular person to whom a universal service condition is applied—

           (a)           except in the case of a condition relating to matters mentioned in

30

subsection (3) of section 63, must be a communications provider

designated in accordance with regulations under that section; and

           (b)           in that excepted case, must be a communications provider so

designated or a person who is not such a provider but who is so

designated for the purposes only of conditions relating to those

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matters.

     (6)    The particular person to whom an access-related condition is applied—

           (a)           in the case of a condition falling within section 71(1), may be any person

whatever; and

           (b)           in any other case, must be a person who provides an electronic

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communications network or makes associated facilities available.

     (7)    The particular person to whom an SMP services condition is applied must—

           (a)           be a communications provider or a person who makes associated

facilities available; and

           (b)           fall within subsection (8).

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

    44

 

     (8)    A person falls within this subsection if—

           (a)           he is a person whom OFCOM have determined to be a person having

significant market power in a specific market for electronic

communications networks, electronic communications services or

associated facilities (a “services market”); or

5

           (b)           it appears to OFCOM that he is a person on whom it is necessary, for

the purpose of securing compliance with an international obligation of

the United Kingdom, to impose a condition containing provision that

corresponds to provision which, in the case of a person falling within

paragraph (a), must be made (or may be made) under any of sections

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84 to 86.

     (9)    The particular person to whom an SMP apparatus condition is applied must

be—

           (a)           a person who supplies electronic communications apparatus; and

           (b)           a person whom OFCOM have determined to be a person having

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significant market power in a specific market for electronic

communications apparatus (an “apparatus market”).

 44    Tests for setting or modifying conditions

     (1)    OFCOM must not, in exercise or performance of any power or duty under this

Chapter—

20

           (a)           set a condition under section 42, or

           (b)           modify such a condition,

            unless they are satisfied that the condition or (as the case may be) the

modification satisfies the test in subsection (2).

     (2)    That test is that the condition or modification is—

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           (a)           objectively justifiable in relation to the networks, services, facilities,

apparatus or directories to which it relates;

           (b)           not such as to discriminate unduly against particular persons or against

a particular description of persons;

           (c)           proportionate to what the condition or modification is intended to

30

achieve; and

           (d)           in relation to what it is intended to achieve, transparent.

 45    Procedure for setting, modifying and revoking conditions

     (1)    Subject to the following provisions of this Chapter—

           (a)           the way in which conditions are to be set or modified under section 42

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is by the publication of a notification setting out the conditions or

modifications; and

           (b)           the way in which such a condition is to be revoked is by the publication

of a notification stating that the condition is revoked.

     (2)    Before setting conditions under section 42, or modifying or revoking a

40

condition so set, OFCOM must publish a notification—

           (a)           stating that they are proposing to set, modify or revoke the conditions

that are specified in the notification;

           (b)           setting out the effect of those conditions, modifications or revocations;

           (c)           giving their reasons for making the proposal; and

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

    45

 

           (d)           specifying the period within which representations may be made to

OFCOM about their proposal.

     (3)    That period must end no less than one month after the day of the publication

of the notification.

     (4)    In the case of a notification under subsection (2) with respect to an SMP

5

condition, the applicable requirements of sections 76 to 83 must also be

complied with.

     (5)    OFCOM may give effect, with or without modifications, to a proposal with

respect to which they have published a notification under subsection (2) only

if—

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           (a)           they have considered every representation about the proposal that is

made to them within the period specified in the notification; and

           (b)           they have had regard to every international obligation of the United

Kingdom (if any) which has been notified to them for the purposes of

this paragraph by the Secretary of State.

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     (6)    The publication of a notification under this section must be in such manner as

appears to OFCOM to be appropriate for bringing the contents of the

notification—

           (a)           in the case of a notification setting general conditions, to the attention

of such persons as OFCOM consider appropriate; and

20

           (b)           in any other case, to the attention of the persons who, in OFCOM’s

opinion, are likely to be affected by the contents of the notification.

     (7)    Nothing in the following provisions of this Chapter imposing a duty on

OFCOM to set or modify a condition shall be taken as dispensing with any of

the requirements of this section.

25

 46    Directions and approvals for the purposes of a s. 42 condition

     (1)    This section applies where—

           (a)           a condition set under section 42 has effect by reference to directions,

approvals or consents given by a person (whether OFCOM themselves

or another); and

30

           (b)           that person is proposing to give a direction, approval or consent that

affects the operation of that condition or to modify or withdraw a

direction, approval or consent so as to affect the condition’s operation.

     (2)    A person must not give, modify or withdraw the direction, approval or consent

unless he is satisfied that to do so is—

35

           (a)           objectively justifiable in relation to the networks, services, facilities,

apparatus or directories to which it relates;

           (b)           not such as to discriminate unduly against particular persons or against

a particular description of persons;

           (c)           proportionate to what it is intended to achieve; and

40

           (d)           in relation to what it is intended to achieve, transparent.

     (3)    In giving, modifying or withdrawing the direction, approval or consent, a

person other than OFCOM shall be under the same duty as OFCOM to act in

accordance with the six Community requirements set out in section 4.

     (4)    Before the direction, approval or consent is given, modified or withdrawn, a

45

notification must be published—

 

 

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

    46

 

           (a)           stating that there is a proposal to give, modify or withdraw it;

           (b)           identifying the person whose proposal it is;

           (c)           setting out the direction, approval or consent to which the proposal

relates;

           (d)           setting out the effect of the direction, approval or consent or of its

5

proposed modification or withdrawal;

           (e)           giving reasons for the making of the proposal; and

           (f)           specifying the period within which representations may be made about

the proposal to the person whose proposal it is.

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

10

publication of the notification.

     (6)           But, where—

           (a)           the person giving the notification is satisfied that there are exceptional

circumstances justifying the use of a shorter period, and

           (b)           the notification is not one that is required to be sent to the European

15

Commission under section 47(4) or (5),

            the period specified as the period for making representations may be whatever

shorter period that person considers reasonable in those circumstances.

     (7)    In a case in which—

           (a)           a person other than OFCOM is proposing to give, modify or withdraw

20

a direction, approval or consent, and

           (b)           the condition for the purposes of which the direction, approval or

consent has effect, or will have effect, provides for notifications of

proposals for the purposes of that condition to be given by that person,

            the obligation of publishing the notification for the purposes of subsection (4)

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of that proposal falls on that person.

     (8)    In any other case, the obligation of publishing a notification for the purposes of

subsection (4) falls on OFCOM.

     (9)    The person who is authorised to give the direction, approval or consent may

give effect, with or without modifications, to a proposal with respect to which

30

a notification has been given under subsection (4) only if—

           (a)           he has considered every representation about the proposal that is made

to him within the period specified in the notification; and

           (b)           he has had regard to every international obligation of the United

Kingdom (if any) which has been notified to OFCOM for the purposes

35

of this paragraph by the Secretary of State.

     (10)   The publication of a notification under this section must be in such manner as

appears to the person publishing it to be appropriate for bringing the contents

of the notification to the attention of such persons as he considers appropriate.

 47    Delivery of copies of notifications etc.

40

     (1)    The relevant person must send to the Secretary of State a copy of—

           (a)           every notification published under section 45(1) or (2);

           (b)           a copy of every notification published under section 46(4);

           (c)           a copy of every direction, approval or consent given for the purpose of

giving effect to a proposal required to be published under section 46(4);

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and

 

 

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

    47

 

           (d)           a copy of every instrument modifying or withdrawing a direction,

approval or consent for the purpose of giving effect to such a proposal.

     (2)    The relevant person must send to the European Commission—

           (a)           a copy of every notification published under section 45(1) with respect

to an SMP services condition;

5

           (b)           a copy of every direction, approval or consent given for the purposes of

such a condition; and

           (c)           a copy of every instrument modifying or withdrawing such a direction,

approval or consent.

     (3)    OFCOM must send to the European Commission and to the regulatory

10

authorities of every other member State a copy of every notification published

by them under section 45(2) with respect to a proposal which—

           (a)           relates to the setting modification or revocation of an access-related

condition falling within section 70(2) or (4) or of an SMP services

condition; and

15

           (b)           is a proposal which, in OFCOM’s opinion, would affect trade between

member States.

     (4)    OFCOM must send to the European Commission and to the regulatory

authorities of every other member State a copy of every notification published

by them under section 46(4) with respect to a proposal which—

20

           (a)           relates to the giving of a direction, approval or consent for the purposes

of—

                  (i)                 an access-related condition falling within section 70(2) or (4), or

                  (ii)                an SMP services condition,

                         or to the modification or withdrawal of such a direction, approval or

25

consent; and

           (b)           is a proposal which, in OFCOM’s opinion, would affect trade between

member States.

     (5)           Where it is a person other than OFCOM who is the relevant person who is

required to publish a notification under section 46(4) relating to the giving,

30

modification or withdrawal of a direction, approval or consent given for

purposes mentioned in subsection (4)(a) of this section—

           (a)           that person must refer to OFCOM the question whether, in their

opinion, the proposal would affect trade between member States;

           (b)           OFCOM must immediately determine that question on that reference;

35

and

           (c)           the relevant person must send a copy of the notification to the

European Commission and to the regulatory authorities of every other

member State if OFCOM determine that the proposal is one which, in

their opinion, would affect trade between member States.

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     (6)    The relevant person must, in every other case in which it appears to him

appropriate to do so, send a copy of—

           (a)           every notification published under section 45(1) or (2) or 46(4),

           (b)           every direction, approval or consent given for the purposes of a

condition set under section 42, and

45

           (c)           every instrument modifying or withdrawing such a direction, approval

or consent,

            to the European Commission and to such of the regulatory authorities of the

other member States as the relevant person thinks fit.

 

 

 
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