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Communications Bill


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

    87

 

     (2)    This section authorises the setting of SMP conditions of each of the following

descriptions—

           (a)           conditions requiring the dominant supplier to maintain such a

separation for accounting purposes between matters relating to the

supply of electronic communications apparatus and other matters as

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may be described in the conditions;

           (b)           conditions imposing requirements about the accounting methods to be

used in maintaining the separation; and

           (c)                         conditions imposing such rules as OFCOM may make, for the purpose

of securing the maintenance of the separation, about the use of cost

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accounting systems.

     (3)           This section also authorises the setting of SMP conditions imposing price

controls in relation to the hiring of telephones which are hardwired to an

electronic communications network.

     (4)           Conditions set under this section must not make provision in relation to the

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supply of electronic communications apparatus unless the apparatus is of a

description of apparatus as respects the supply of which the dominant supplier

has been found to have significant market power.

     (5)    For the purposes of this section a telephone is hardwired to an electronic

communications network where, in order for it to be used with that network—

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           (a)           it has to be physically attached to apparatus comprised in the network;

and

           (b)           the attachment has to be effected by a process that requires the use of a

tool.

Enforcement of conditions

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 91    Notification of contravention of condition

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

a person is contravening, or has contravened, a condition set under section 42,

they may give that person a notification under this section.

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

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           (a)           sets out the determination made by OFCOM;

           (b)           specifies the condition and contravention in respect of which that

determination has been made; and

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

opportunity of doing the things specified in subsection (3).

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     (3)    Those things are—

           (a)           making representations about the matters notified;

           (b)           complying with notified conditions of which he remains in

contravention; and

           (c)           remedying the consequences of notified contraventions.

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     (4)    Subject to subsections (5) to (7) and section 95(3), the period for doing those

things must be the period of one month beginning with the day after the one

on which the notification was given.

     (5)    OFCOM may, if they think fit, allow a longer period for doing those things

either—

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

    88

 

           (a)           by specifying a longer period in the notification; or

           (b)           by subsequently, on one or more occasions, extending the specified

period.

     (6)    The person notified shall have a shorter period for doing those things if a

shorter period is agreed between OFCOM and the person notified.

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     (7)    The person notified shall also have a shorter period if—

           (a)           OFCOM have reasonable grounds for believing that the contravention

is a repeated contravention;

           (b)           they have determined that, in those circumstances, a shorter period

would be appropriate; and

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           (c)           the shorter period has been specified in the notification.

     (8)    A notification under this section—

           (a)           may be given in respect of more than one contravention; and

           (b)           if it is given in respect of a continuing contravention, may be given in

respect of any period during which the contravention has continued.

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     (9)    Where a notification under this section has been given to a person in respect of

a contravention of a condition, OFCOM may give a further notification in

respect of the same contravention of that condition if, and only if—

           (a)           the contravention is one occurring after the time of the giving of the

earlier notification;

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           (b)           the contravention is a continuing contravention and the subsequent

notification is in respect of so much of a period as falls after a period to

which the earlier notification relates; or

           (c)           the earlier notification has been withdrawn without a penalty having

been imposed in respect of the notified contravention.

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     (10)   OFCOM must not give a notification under this section in a case in which—

           (a)           they decide that the most appropriate way of proceeding in relation to

the contravention in question would be under the Competition Act

1998 (c. 41); and

           (b)           they publish a statement to that effect in such manner as they consider

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appropriate for bringing their decision to the attention of the persons

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

     (11)   For the purposes of this section a contravention is a repeated contravention, in

relation to a notification with respect to that contravention, if—

           (a)           a previous notification under this section has been given in respect of

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the same contravention or in respect of another contravention of the

same condition; and

           (b)           the subsequent notification is given no more than twelve months after

the day of the making by OFCOM of a determination for the purposes

of section 92(2) or 93(2) that the contravention to which the previous

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notification related did occur.

 92    Enforcement notification for contravention of conditions

     (1)    This section applies where—

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

section 91;

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

    89

 

           (b)           OFCOM have allowed the notified provider 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 provider an enforcement notification if they are

satisfied—

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

contravention of a condition specified in the notification under section

91; and

           (b)           that he has not, during the period allowed under that section, taken all

such steps as they consider appropriate—

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                  (i)                 for complying with that condition; and

                  (ii)                for remedying the consequences of the notified contravention of

that condition.

     (3)    An enforcement notification is a notification which imposes one or both of the

following requirements on the notified provider—

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           (a)           a requirement to take such steps for complying with the notified

condition as may be specified in the notification;

           (b)           a requirement to take such steps for remedying the consequences of the

notified contravention as may be so specified.

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

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           (a)           must be notified by them to that person, together with the reasons for

the decision, no later than one week after the day on which it is taken;

and

           (b)           must fix a reasonable period for the taking of the steps required by the

notification.

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

given to comply with it.

     (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

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Court of Session Act 1988 (c. 36); or

           (c)           for any other appropriate remedy or relief.

 93    Penalties for contravention of conditions

     (1)    This section applies (in addition to section 92) where—

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

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section 91;

           (b)           OFCOM have allowed the notified provider 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 impose a penalty on the notified provider if he—

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           (a)           has, in one or more of the respects notified, been in contravention of a

condition specified in the notification under section 91; and

           (b)           has not, during the period allowed under that section, taken the steps

OFCOM consider appropriate—

                  (i)                 for complying with the notified condition; and

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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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                  (ii)                for remedying the consequences of the notified contravention of

that condition.

     (3)    Where a notification under section 91 relates to more than one contravention,

a separate penalty may be imposed in respect of each contravention.

     (4)    Where such a notification relates to a continuing contravention, no more than

5

one penalty may be imposed in respect of the period of contravention specified

in the notification.

     (5)    OFCOM may also impose a penalty on the notified provider if he has

contravened, or is contravening, a requirement of an enforcement notification

given under section 92 in respect of the notified contravention.

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     (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

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.

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     (7)    A penalty imposed under this section—

           (a)           must be paid to OFCOM; and

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

accordingly.

 94    Amount of penalty under s. 93

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     (1)    The amount of a penalty imposed under section 93 is to be such amount not

exceeding ten per cent. of the turnover of the notified provider’s relevant

business for the relevant period as OFCOM determine to be—

           (a)           appropriate; and

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

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

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

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

contraventions of which have been notified to him under section 91;

and

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

contraventions.

     (3)    For the purposes of this section—

           (a)           the turnover of a person’s relevant business for a period shall be

calculated in accordance with such rules as may be set out by order

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made by the Secretary of State; and

           (b)           provision may also be made by such an order for determining what is

to be treated as the network, service, facility or business by reference to

which the calculation of that turnover falls to be made.

     (4)    No order is to be made containing provision authorised by subsection (3)

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

resolution of each House.

     (5)    In this section—

                    “relevant business” means (subject to the provisions of an order under

subsection (3) and to subsections (6) and (7)) so much of any business

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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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                    carried on by the notified provider as consists in any one or more of the

following—

                  (a)                 the provision of an electronic communications network;

                  (b)                 the provision of an electronic communications service;

                  (c)                 the making available of associated facilities;

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                  (d)                 the supply of directories for use in connection with the use of

such a network or service;

                  (e)                 the making available of directory enquiry facilities for use for

purposes connected with the use of such a network or service;

                  (f)                 any business not falling within any of the preceding paragraphs

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which is carried on in association with any business in respect

of which any access-related condition is applied to the person

carrying it on;

                    “relevant period”, in relation to a contravention by a person of a condition

set under section 42, means—

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                  (a)                 except in a case falling within paragraph (b) or (c), the period of

one year ending with the 31st March next before the time when

notification of the contravention was given under section 91;

                  (b)                 in the case of a person who at that time, has been carrying on

that business for a period of less than a year, the period, ending

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with that time, during which he has been carrying it on; and

                  (c)                 in the case of a person who at that time has ceased to carry on

that business, the period of one year ending with the time when

he ceased to carry it on.

     (6)    In the case of a contravention of an SMP apparatus condition the relevant

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business is so much of any business carried on by the person in respect of

whose contravention the penalty is imposed as consists in the supply of

electronic communications apparatus.

     (7)    So much of any business of a person on whom the penalty is imposed as falls

within paragraph (f) of the definition of a relevant business shall be

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disregarded for the purposes of this section except in relation to—

           (a)           a contravention of an access-related condition imposed in respect of

that business; or

           (b)           a contravention of an enforcement notification given under section 92

relating to such a condition.

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     (8)    In this section “the notified provider” has the same meaning as in section 93.

 95    Power to deal with urgent cases

     (1)    This section applies where OFCOM determine—

           (a)           that they are entitled to give a notification under section 91 with respect

to a contravention by a person (“the contravening provider”) of a

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condition set under section 42, other than an SMP apparatus condition;

           (b)           that there are reasonable grounds for suspecting that the case is an

urgent case; and

           (c)           that the urgency of the case makes it appropriate for OFCOM to take

action under this section.

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     (2)    A case is an urgent case for the purposes of this section if the contravention has

resulted in, or creates an immediate risk of—

 

 

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

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

security;

           (b)           serious economic or operational problems for persons (other than the

contravening provider) who are communications providers or persons

who make associated facilities available; or

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

electronic communications networks, electronic communications

services or associated facilities.

     (3)    OFCOM may, in a notification under section 91 with respect to the

contravention, specify a period of less than one month for doing the things

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mentioned in subsection (3) of that section.

     (4)    OFCOM shall also have power to give to the contravening provider—

           (a)           a direction that his entitlement to provide electronic communications

networks or electronic communications services, or to make associated

facilities available, is suspended (either generally or in relation to

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particular networks, services or facilities); or

           (b)           a direction that that entitlement is restricted in the respects set out in the

direction.

     (5)    A direction under subsection (4)—

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

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           (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.

     (6)    A direction under subsection (4)—

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

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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

conditions on the contravening provider as appear to OFCOM to be

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appropriate for the purpose of protecting his customers.

     (7)    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

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

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been put in consequence of the direction.

     (8)    OFCOM have power to revoke a direction given under subsection (4)—

           (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 networks, services or facilities, or

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parts of a network, service or facility, as they may determine.

 96    Confirmation of directions under s. 95

     (1)    As soon as reasonably practicable after giving a direction under section 95(4),

OFCOM must give the person to whom it is given—

           (a)           an opportunity of making representations to them about the grounds

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on which it was given and its effect; and

 

 

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

    93

 

           (b)           an opportunity of proposing steps to remedy the situation.

     (2)    As soon as practicable after the period allowed by OFCOM for making those

representations has ended, they must determine—

           (a)           whether the contravention providing the grounds for the giving of the

direction did occur; and

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           (b)           whether the circumstances made it an urgent case justifying the giving

of the direction.

     (3)    If OFCOM decide that the contravention did occur and that the direction was

justified, they may confirm the direction.

     (4)    If not, they must exercise their power to revoke it.

10

     (5)    As soon as reasonably practicable after determining whether to confirm the

direction, OFCOM must notify the person to whom it was given of their

decision.

     (6)    Conditions included in a direction by virtue of section 95(7) have effect only if

the direction is confirmed.

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 97    Suspending service provision for contraventions of conditions

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

communications provider or makes associated facilities available (“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 42, other than an SMP apparatus

condition;

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

enforcement notifications under section 92 or both, to secure

compliance with the contravened conditions has failed; and

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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.

     (2)    A direction under this section is—

           (a)           a direction that the entitlement of the contravening provider to provide

electronic communications networks or electronic communications

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services, or to make associated facilities available, is suspended (either

generally or in relation to particular networks, services or facilities); or

           (b)           a direction that that entitlement is restricted in the respects set out in the

direction.

     (3)    A direction under this section—

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           (a)           must specify the networks, services and facilities 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.

     (4)    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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