House of Lords - Explanatory Note
Communications Bill - continued          House of Lords

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Clause 118: Approval of code for premium rate services

286.     This clause enables OFCOM, where appropriate, to approve codes regulating the provision, content, promotion and marketing of premium rate services made by any person. OFCOM may not approve a code unless they are satisfied that the criteria listed in subsection (2) are met. These include the existence of a person whose function is to administer and enforce the code; adequate funding for the activities of that person; objective justification for the provisions in the code; provisions which do not unduly discriminate and are proportionate and transparent. OFCOM may approve modifications made to an approved code or withdraw their approval of a code at any time.

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

287.     This clause permits OFCOM to make an order imposing requirements with respect to the provision, content, promotion and marketing of premium rate services (including pricing) and for the enforcement of such requirements, where OFCOM consider there is no third-party code which could be approved under clause 118. OFCOM's power to make an order includes power to establish a corporate body to determine the jurisdiction of that body and any other person, to confer jurisdiction over any matter on OFCOM, to provide a person upon whom jurisdiction is conferred with the ability to compensate or reimburse expenses and to enforce any awards. OFCOM must obtain the consent of the Secretary of State before making an order under this clause.

Clause 120: Enforcement of s.117 conditions

288.     OFCOM may enforce conditions set under clause 117 in accordance with clauses 91 to 93. In deciding on the amount of a financial penalty under clause 93, OFCOM must consider whether the fine is appropriate and proportionate and take into account any representations made by the premium rate service provider concerned as well as any steps taken by him to comply with the notified condition and remedy any consequences of a contravention. The penalty may not exceed £100,000. The Secretary of State may by order amend the maximum penalty.

Clause 121: Suspending service provision for contraventions of s.117 conditions

289.     Subject to compliance with clauses 99 and 100, this clause gives OFCOM a power to suspend or restrict the right of a communications provider to provide premium rate services where OFCOM are satisfied that that provider is in serious and repeated breach of any conditions imposed on him under clause 117, and that the imposition of penalties and enforcement notifications under clauses 92 and 93 have not resulted in compliance with those conditions. The suspension or restriction must be appropriate and proportionate to the seriousness of the breach and necessary for reasons of public policy. OFCOM may similarly direct the suspension or restriction of the right to provide a service where a communications provider has contravened the conditions set under clause 117 and the circumstances of that contravention are such that it is appropriate for OFCOM to proceed without the conditions mentioned above being satisfied and there is an urgent need to give the direction for reasons of public policy.

290.     A direction by OFCOM under this clause may suspend entitlement to provide any or all premium rate services and may take effect indefinitely or for a fixed period. A direction may also include, where appropriate, conditions to protect the interests of the premium rate service provider's customers, including requirements for the payment of compensation. Where appropriate, OFCOM may revoke or modify the suspension or restriction. Provisions for the procedures applying to the giving of directions under this clause, equivalent to those applying to directions for breaches of other conditions of entitlement, are included via subsection (8).

Clause 122: Dishonestly obtaining electronic communications services

291.     Anyone who dishonestly obtains an electronic communications service and intends to avoid paying for that service is guilty of an offence under clause 122. A person found guilty of the offence will be liable to a fine or imprisonment, or both. Under subsection (2), it is not an offence under this clause to obtain a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988. This clause replaces section 42 of the Telecommunications Act 1984 which is repealed by Schedule 19.

* Section 297(1) of the Copyright, Designs and Patents Act 1988 mentions programmes included in a broadcasting or cable programme service (as defined in that Act).

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

292.     It is an offence under subsection (1) for a person to have in his possession or under his control anything, including data, which may be used for or in connection with obtaining an electronic communications service with the intent to use the thing or to allow it to be used to obtain, or for a purpose connected with the obtaining of, an electronic communications service dishonestly.

293.     It is an offence under subsection (2) for anyone to supply or offer to supply anything that may be used for or in connection with obtaining an electronic communications service when he knows or believes that the recipient of those things intends to use them or to allow them to be used to obtain, or for a purpose connected with the obtaining of, an electronic communications service dishonestly.

294.     A person found guilty of either offence will be liable to a fine or imprisonment, or both.

295.     This clause replaces section 42A of the Telecommunications Act 1984 which is repealed by Schedule 19.

Clause 124: Improper use of public electronic communications network

296.     Anyone who sends a message or other matter that is grossly offensive or is of an indecent, obscene or menacing character (other than in the course of providing a programme service) by means of a public electronic communications network, or causes them to be sent, is guilty of an offence. It is also an offence under subsection (2) for anyone to send or cause to be sent false messages by means of a public electronic communications network or persistently to make use of a public electronic communications network, for the purpose of causing annoyance, inconvenience or needless anxiety.

    *A programme service has the same meaning as in the Broadcasting Act 1990.

297.     This clause replaces section 43 of the Telecommunications Act 1984, which is repealed by Schedule 19.

Clause 125: Notification of misuse of networks and services

298.     This clause gives OFCOM powers of enforcement in respect of persistent misuse of an electronic communications network or an electronic communications service. Where OFCOM determine that there are reasonable grounds to believe that a person has persistently misused an electronic communications network or an electronic communications service, OFCOM may notify that person accordingly, and allow him a specified period in which to make representations to OFCOM. The period to be allowed for the making of representations is one month, unless OFCOM consider that the misuse is continuing and the harm caused makes it necessary for it to be stopped as soon as possible, in which case, the period is 7 days. Under subsection (8), the Secretary of State may by order specify uses of an electronic communications network or an electronic communications service that shall not be treated as a misuse of a network or service where she considers that appropriate alternative means of dealing with those uses exist.

*A person misuses an electronic communications network or an electronic communications service, under subsection (4), if the effect or likely effect of its use causes another person unnecessarily to suffer annoyance, inconvenience or anxiety or if he uses a network or service to engage in conduct the effect or likely effect of which causes another person unnecessarily to suffer annoyance, inconvenience or anxiety.

*A person persistently misuses an electronic communications network or an electronic communications service under subsection (5) where his misuse is repeated on a sufficient number of occasions so that is clear that the misuse forms part of pattern of behaviour or constitutes recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

Clause 126: Enforcement notifications for stopping persistent misuse

299.     If, by the end of the period specified in clause 125, OFCOM are satisfied that the person has persistently misused an electronic communications network or an electronic communications service and that he has not taken all appropriate steps to secure that the misuse ceases and is not repeated, and to remedy the misuse, they may serve an enforcement notice. Such a notice requires the notified person to take all steps to secure that the misuse ceases and is not repeated, and to remedy the misuse.

Clause 127: Penalties for persistent misuse

300.     OFCOM may impose a penalty if a person notified under clause 125 has persistently misused an electronic communications network or an electronic communications service. Where an enforcement notification issued in accordance with clause 126 has not been complied with, OFCOM may also impose a penalty.

301.     When deciding on the amount of financial penalty, OFCOM are required to consider whether the fine is appropriate and proportionate, and to take account of any representation made by the person concerned and any steps taken to secure that the misuse ceases and is not repeated and to remedy the misuse. The penalty may not exceed £5000. However, the Secretary of State may by order amend the maximum penalty.

302.     Under subsection (8), people may be liable for an offence under clauses 122 to 124 and have a penalty imposed by OFCOM under clause 126 in respect of the same conduct.

Clause 128: Statement of policy on persistent misuse

303.     This clause places OFCOM under a duty to publish and keep up-to-date a statement of policy on how they will use their powers under clauses 125 to 127 and how they will use any information obtained in exercise of their powers.

Clause 129: Powers to require suspension or restriction of a provider's entitlement

304.     This clause gives the Secretary of State a power to direct OFCOM to issue a person with a direction to suspend or restrict that person's entitlement to provide a network, service and/or associated facility where she has reasonable grounds for believing that it is necessary to do so to protect the public from any threat to public safety or public health, or in the interests of national security. This is permitted by Article 3 of the Authorisation Directive.

305.     Subsection (2) places OFCOM under a duty to comply with any such direction by the Secretary of State. Once a suspension or restriction is in place, both the Secretary of State and OFCOM must allow the person in question an opportunity to make representations to them, and to propose steps for remedying the situation. OFCOM may modify the terms of a suspension or restriction imposed under this clause. The Secretary of State may direct OFCOM to revoke a suspension or restriction imposed under this clause.

306.     A direction by OFCOM under this clause may suspend entitlement generally or in relation to particular networks, services or facilities, and may take effect indefinitely or for a fixed period. It may also postpone the suspension or restriction (and, if doing so, may also impose additional conditions - such as compensation of their customers for loss suffered - in order to protect the customers of the provider).

Clause 130: Enforcement of directions under s. 129

307.     It is an offence for any person to provide a network, service or associated facility while he is subject to a direction suspending his entitlement to do so or to provide such a network, service or facility in contravention of any restriction. A person found guilty will be liable to a fine. A third party who sustains loss or damage as a result of a breach of such a direction or of an act which induces a breach of the duty or interferes with its performance may bring proceedings against the person concerned. In such proceedings, a person may defend himself by demonstrating that he did everything reasonable and exercised all due diligence to avoid breaching the condition in question.

Clause 131: Restrictions in leases and licences

308.     This clause replaces section 96 of the Telecommunications Act 1984, which is repealed by Schedule 19. Subsection (3) amends any provision, in any lease, licence or other premises-related agreement granted or entered into after the commencement of this clause, which prohibits or restricts an occupier's choice of electronic communications services providers to a person who has an interest in the relevant premises or a person selected by a person with an interest in the relevant premises. Where a lease, licence or other premise-related agreement contains a provision imposing such prohibitions or restrictions, that provision is to have effect as if it provided for the election of an alternative electronic communications service provider by the occupier, subject to the prior consent of the lessor, licensor or other party to the agreement, such consent not to be unreasonably withheld.

* The meaning of lease is given in subsection (7) and includes a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy.

309.      Subsection (4) amends any provision, in a lease of one year or more granted or entered into after the commencement of this clause or more or in a premises-related agreement to which such a lease applies, that imposes any other prohibition or restriction on the lessee relating to an electronic communications matter where such prohibition or restriction relates to anything done inside a building occupied by the lessee or for purposes in connection with the provision of an electronic communications service by a communications provider to the lessee. Where a lease of one year or more or a premises-related agreement to which a lease of one year or more is applied contains a provision imposing such a prohibition or restriction, the provision is to have effect as if the prohibition or restriction applied only where the lessor had not given his consent, such consent not to be unreasonably withheld.

*For the purposes of this clause, an electronic communications matter includes the provision of an electronic communications network, the provision of an electronic communications service, the connection of electronic communications apparatus to an electronic communications network specified in an order for the purposes of this section, the connection of an electronic communications network to another electronic communications network specified in an order for the purposes of this section, and the installation, maintenance, adjustment, repair, alteration or use of electronic communications apparatus for the purposes of providing an electronic communications network or an electronic communications service.

310.     Under subsection (6), OFCOM has the power by order to exclude certain provisions in leases, licences or other premises-related agreements falling within the remit of this clause. OFCOM may also by order apply the provisions of this clause to leases, licences or other premises-related agreements entered into before the commencement of this clause under subsection (9). The provisions of this clause apply without prejudice to the application of the electronic communications code.

Clause 132: Information required for purposes of Chapter 1 functions

311.     This clause gives OFCOM information-gathering powers. Subject to the restrictions in clause 134, it allows OFCOM to require any person falling within subsection (2), including a communications provider, to provide OFCOM with all such information as OFCOM consider necessary for the purpose of carrying our their functions under Chapter 1 of Part 2 of the Bill.

312.     This includes information for the following purposes:

  • investigating possible breaches of conditions of entitlement, or of the code, or of a transitional scheme after the cessation of the application of the electronic communications code;

  • ascertaining or verifying the amount of any administrative charge payable under clause 35, or of any financial contribution towards the cost of complying with universal service obligations;

  • ascertaining whether a condition set under clause 42 continues to be effective;

  • designating a universal service provider under clause 63;

  • carrying out a review under clauses 63 or 67;

  • identifying markets and carrying out market analyses for the purposes of Chapter 1 Part 2 of the Bill;

  • assessing whether any network access question gives rise to a duty under clause 102 and considering any matter while exercising that duty;

  • statistical purposes connected with OFCOM's functions under Chapter 1 of Part 2 of the Bill.

This clause, clause 133 and clause 134, implement Article 5 of the Framework Directive, Articles 6(1), 10(1) and 11 of, and condition 10 of Part A to, the Annex to the Authorisation Directive, Article 11(2) of the Access Directive, and Articles 11, 21 and 22 (in so far as those Articles necessitate the provision of information) of the Universal Service Directive.

Clause 133: Information required for related purposes

313.     Subject to the restrictions in clause 134, clause 133 allows OFCOM to require communications providers and persons making available associated facilities to provide OFCOM with information necessary to enable OFCOM:

  • to carry out comparative overviews of the quality and price of services provided by communications providers or of associated facilities;

  • for related statistical purposes.

Clause 134: Restriction on imposing information requirements

314.     OFCOM may not use their powers under clauses 132 and 133 to request information relating to a potential breach of a general condition unless OFCOM's investigation is in response to a complaint; they have reason to believe that a breach has occurred; they have decided to investigate to see whether the condition is being complied with; or the condition concerns sharing the burden of providing a universal service.

315.     Any demands made by OFCOM must be proportionate to the use to which they intend to put the information, and must describe the information required and state the reasons why it is required. This implements Article 11(1) and (2) of the Authorisation Directive. Unless the demand is for the purpose of determining who is liable to a charge under clause 35 (in which case other appropriate methods may be used) any demand must be set out in a notice and be served on the person from whom the information is requested.

Clause 135: Notification of contravention of information requirements

316.     Where OFCOM have reasonable grounds to believe that a person is or has been in breach of any requirement under clause 132 or 133, they may notify that person accordingly, and allow him a specified period of time (usually one month) in which to make representations to OFCOM, and to take steps to comply with the notified requirement. This clause, and clauses 136, 137 and 141 relate to enforcement of the information provisions applicable to communications providers or persons making associated facilities available and together implement Article 10 of the Authorisation Directive.

Clause 136: Penalties for contravention of information requirement

317.     Where a notified provider has not complied with a requirement notified under clause 135, has not remedied the consequences of the notified contravention and no proceedings for an offence under clause 141 have been brought, OFCOM may impose a penalty. In deciding on the amount of a financial penalty, OFCOM are required to consider whether the penalty is appropriate and proportionate, and to take account of any representations made by the person concerned and any steps taken by him to comply with the condition or restriction in question. The maximum fine that may be imposed under this clause is £50,000. Secretary of State may by order amend this provision so as to substitute a different maximum penalty.

Clause 137: Suspending service provision for information contraventions

318.     This clause gives OFCOM a power to suspend or restrict a person's entitlement to provide networks, services and/or associated facilities where OFCOM are satisfied that that person is in serious and repeated breach of any requirements imposed on him under clause 132 or 133, that the requirements are not requirements imposed for the purposes connected with the carrying out of OFCOM's functions in relation to SMP apparatus conditions and that an attempt by the imposition of penalties under clause 136 or the bringing of proceedings for an offence under clause 141, to secure compliance has failed. The suspension or restriction must be appropriate and proportionate to the seriousness of the repeated contraventions.

319.     A direction by OFCOM under this clause may suspend entitlement generally or in relation to particular networks, services or facilities and may take effect indefinitely or for a fixed period. Where OFCOM exercise these powers, they must allow the person in question to make representations to them and, if appropriate, OFCOM may revoke the suspension or restriction. A direction may also include, where appropriate, conditions to protect the customers of a provider, including the payment of compensation.

Clause 138: Suspending apparatus supply for information contraventions

320.     This clause gives OFCOM a power to suspend or restrict a person from supplying electronic communications apparatus where OFCOM are satisfied that that the person is in serious and repeated breach of any requirement of OFCOM to provide information for the purpose of clause 132, and that an attempt, by the imposition of penalties under clause 136 or the bringing of proceedings for an offence under clause 141, to secure compliance has failed. The suspension or restriction must be appropriate or proportionate to the seriousness of the repeated contraventions.

321.     A direction by OFCOM under this clause may require a person to cease supplying electronic communications apparatus generally or in relation to particular electronic communications apparatus. The direction may take effect indefinitely or for a fixed period. A direction may also include, where appropriate, conditions to protect the customers of a supplier, including the payment of compensation. When OFCOM exercise these powers, they must allow the person in question to make representations to them and, if appropriate, OFCOM may revoke the suspension or restriction.

Clause 139: Procedure for directions under sections 137 and 138

322.     Unless a case is urgent, before exercising their powers under clauses 137 and 138, OFCOM must notify a contravening provider or supplier of the proposed direction, allow him at least one month to make representations and consider each representation made by him.

    *The meaning of an urgent case is set out in subsections (4) and (5). Such a case arises where there is a serious threat to public safety, public health or national security or a serious economic or operational problem that makes it inappropriate to give a contravening provider or supplier time to make representations.

323.      If a case is urgent, OFCOM may give a direction without consulting the contravening provider or supplier. However, as soon as practicable after giving a direction in an urgent case, OFCOM must provide the relevant contravening provider or supplier with an opportunity to make representations and to propose steps to remedy the contravention.

Clause 140: Enforcement of directions under ss. 137 and 138

324.     It is an offence for any person to provide an electronic communications network, an electronic communications service or an associated facility while he is subject to a direction issued under clause 137 suspending his entitlement to do so or where he does so in contravention of any restriction specified in the direction. It is also an offence for any person to supply electronic communications apparatus while he is subject to a direction issued under clause 138 suspending his entitlement to do so or where he does so in contravention of any restriction specified in the direction. A person found guilty of either offence will be liable to a fine.

Clause 141: Offences in connection with information requirements

325.     It is an offence for any person to fail to provide information in response to a demand from OFCOM under clause 132 or 133 and any such person shall be liable to a fine. However, subsection (2) makes provision for a defence where it is not possible for the recipient of a notice to provide the information within the period specified by OFCOM but the recipient has taken all reasonable steps to provide the information after that period. However, no proceedings for this offence may be brought in respect of failures for which OFCOM have imposed a financial penalty under clause 136.

326.     It is also an offence intentionally or recklessly to provide OFCOM with any false information in response to a request under clause 132 or 133 and a person guilty of this offence is liable to a fine and/or imprisonment.

Clause 142: Statement of policy on information gathering

327.     This clause places OFCOM under a duty to publish and keep up-to-date a statement of policy on how they will use their information-gathering powers under clauses 132 and 133 and how they will use any information obtained in exercise of those powers. When exercising their information-gathering powers under clauses 132 to 141, OFCOM must have regard to their published policy statement.

 
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Prepared: 6 March 2003