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Communications Bill


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

    120

 

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

accordingly.

     (8)    It is to be possible for a person to be both liable for an offence under sections

122 to 124 and to have a penalty imposed on him under this section in respect

of the same conduct.

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     (9)    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 (4).

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

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

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resolution of each House.

 128   Statement of policy on persistent misuse

     (1)    It shall be the duty of OFCOM to prepare and publish a statement of their

general policy with respect to the exercise of their powers under sections 125

to 127.

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     (2)    OFCOM may from time to time revise that statement as they think fit.

     (3)    Where OFCOM make or revise their statement of policy under this section,

they must publish that statement or (as the case may be) the revised statement

in such manner as they 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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     (4)    It shall be the duty of OFCOM, in exercising the powers conferred on them by

sections 125 to 127, to have regard to the statement for the time being in force

under this section.

Powers to deal with emergencies

 129   Powers to require suspension or restriction of a provider’s entitlement

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     (1)    If the Secretary of State has reasonable grounds for believing that it is necessary

to do so—

           (a)           to protect the public from any threat to public safety or public health, or

           (b)           in the interests of national security,

            he may, by a direction to OFCOM, require them to give a direction under

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subsection (3) to a person (“the relevant provider”) who provides an electronic

communications network or electronic communications service or who makes

associated facilities available.

     (2)    OFCOM must comply with a requirement of the Secretary of State under

subsection (1) by giving to the relevant provider such direction under

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subsection (3) as they consider necessary for the purpose of complying with the

Secretary of State’s direction.

     (3)    A direction under this section is—

           (a)           a direction that the entitlement of the relevant 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

 

 

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

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

direction.

     (4)    A direction under subsection (3)—

           (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

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

whom it is given.

     (5)    A direction under subsection (3)—

           (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

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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 relevant provider as appear to OFCOM to be

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

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

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

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

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

been put in consequence of the direction.

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     (7)    Where OFCOM give a direction under subsection (3), they shall, as soon as

practicable after doing so, provide that person with an opportunity of—

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

           (b)           proposing steps for remedying the situation.

     (8)    If OFCOM consider it appropriate to do so (whether in consequence of any

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representations or proposals made to them under subsection (3) or otherwise),

they may, without revoking it, at any time modify the terms of a direction

under subsection (3) in such manner as they consider appropriate.

     (9)    If the Secretary of State considers it appropriate to do so, he may, by a direction

to OFCOM, require them to revoke a direction under subsection (3).

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     (10)   Where OFCOM modify or revoke a direction they have given under subsection

(3), they may do so—

           (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.

     (11)   It shall be the duty of OFCOM to comply with—

           (a)           a requirement under subsection (9) to revoke a direction; and

           (b)           a requirement contained in that direction as to how they should

exercise their powers under subsection (10) in the case of the required

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revocation.

 130   Enforcement of directions under s. 129

     (1)    A person is guilty of an offence if he provides an electronic communications

network or electronic communications service, or makes available any

associated facility—

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

    122

 

           (a)           while his entitlement to do so is suspended by a direction under section

129; or

           (b)           in contravention of a restriction contained in such a direction.

     (2)    A person guilty of an offence under subsection (1) shall be liable—

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

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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

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

contravention of the condition.

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     (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—

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

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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

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

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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 129 as they apply in relation to a contravention of

conditions set under section 42.

Restrictions in leases and licences

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 131   Restrictions in leases and licences

     (1)    This section applies where provision contained in a lease, licence or other

agreement relating to premises has the effect of imposing on the occupier a

prohibition or restriction under which his choice of—

           (a)           the person from whom he obtains electronic communications services,

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or particular electronic communications services, or

           (b)           the person through whom he arranges to be provided with electronic

communications services, or particular electronic communications

services,

            is confined to a person with an interest in the premises, to a person selected by

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a person with such an interest or to persons who are one or the other.

     (2)    This section also applies where—

           (a)           provision contained in a lease for a year or more has the effect of

imposing any other prohibition or restriction on the lessee with respect

to an electronic communications matter; or

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           (b)           provision contained in an agreement relating to premises to which a

lease for a year or more applies has the effect of imposing a prohibition

or restriction on the lessee with respect to such a matter.

     (3)    A provision falling within subsection (1) shall have effect—

 

 

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

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           (a)           as if the prohibition or restriction applied only where the lessor,

licensor or other party to the agreement has not given his consent to a

departure from the requirements imposed by the prohibition or

restriction; and

           (b)           as if the lessor, licensor or other party were required not to withhold

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that consent unreasonably.

     (4)    A provision falling within subsection (2)(a) or (b) shall have effect—

           (a)           in relation to things done inside a building occupied by the lessee under

the lease, or

           (b)           for purposes connected with the provision to the lessee of an electronic

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communications service,

            as if the prohibition or restriction applied only where the lessor has not given

his consent in relation to the matter in question and as if the lessor were

required not to withhold that consent unreasonably.

     (5)    Where (whether by virtue of this section or otherwise) a provision falling

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within subsection (1) or (2) imposes a requirement on a lessor, licensor or party

to an agreement not unreasonably to withhold his consent—

           (a)           in relation to an electronic communications matter, or

           (b)           to the obtaining by the occupier of premises of an electronic

communications service from or through a particular person,

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            the question whether the consent is unreasonably withheld has to be

determined having regard to all the circumstances and to the principle that no

person should unreasonably be denied access to an electronic communications

network or to electronic communications services.

     (6)    OFCOM may by order provide for this section not to apply in the case of such

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provisions as may be described in the order.

     (7)    References in this section to electronic communications matters are references

to—

           (a)           the provision of an electronic communications network or electronic

communications service;

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           (b)           the connection of electronic communications apparatus to a relevant

electronic communications network or of any such network to another;

and

           (c)           the installation, maintenance, adjustment, repair, alteration or use for

purposes connected with the provision of such a network or service of

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electronic communications apparatus.

     (8)    In this section—

                    “alteration” has the same meaning as in the electronic communications

code;

                    “lease” includes—

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                  (a)                 a leasehold tenancy (whether in the nature of a head lease, sub-

lease or under lease) and an agreement to grant such a tenancy,

and

                  (b)                 in Scotland, a sub-lease and an agreement to grant a sub-lease,

                         and “lessor” and “lessee” are to be construed accordingly;

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                    “relevant electronic communications network” means—

                  (a)                 a public electronic communications network that is specified for

the purposes of this section in an order made by the Secretary of

State; or

 

 

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

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                  (b)                 an electronic communications network that is, or is to be,

connected (directly or indirectly) to such a network.

     (9)    This section applies to provisions contained in leases, licences or agreements

granted or entered into before the commencement of this section to the extent

only that provision to that effect is contained in an order made by OFCOM.

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     (10)   This section is not to be construed as affecting the operation of paragraph 2(3)

of the electronic communications code (lessees etc. bound by rights granted

under code by owners).

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

an order under this section.

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     (12)   Section 396 applies to the powers of OFCOM to make orders under this section.

     (13)          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.

Information provisions

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 132   Information required for purposes of Chapter 1 functions

     (1)    OFCOM may require a person falling within subsection (2) to provide them

with all such information as they consider necessary for the purpose of

carrying out their functions under this Chapter.

     (2)    The persons falling within this subsection are—

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           (a)           a communications provider;

           (b)           a person who has been a communications provider;

           (c)           a person who makes, or has made, any associated facilities available to

others;

           (d)           a person, other than a communications provider, to whom a universal

25

service condition applies or has applied;

           (e)           a person who supplies electronic communications apparatus;

           (f)           a person not falling within the preceding paragraphs who appears to

OFCOM to have information required by them for the purpose of

carrying out their functions under this Chapter.

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     (3)    The information that may be required by OFCOM under subsection (1)

includes, in particular, information that they require for any one or more of the

following purposes—

           (a)           ascertaining whether a contravention of a condition or other

requirement set or imposed by or under this Chapter has occurred or is

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occurring;

           (b)           ascertaining or verifying the charges payable by a person under section

35;

           (c)           ascertaining whether a provision of a condition set under section 42

which is for the time being in force continues to be effective for the

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purpose for which it was made;

           (d)           ascertaining or verifying amounts payable by virtue of a condition

falling within section 48(1)(d);

           (e)           making a designation in accordance with regulations made under

section 63;

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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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           (f)           carrying out a review under section 63 or 67;

           (g)           identifying markets and carrying out market analyses in accordance

with, or for the purposes of, any provision of this Chapter;

           (h)           ascertaining whether a question has arisen that gives rise to their duty

under section 102;

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           (i)           considering a matter in exercise of that duty;

           (j)           statistical purposes connected with the carrying out of any of

OFCOM’s functions under this Chapter.

     (4)    A person required to provide information under this section must provide it in

such manner and within such reasonable period as may be specified by

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OFCOM.

     (5)    The powers in this section are subject to the limitations in section 134.

 133   Information required for related purposes

     (1)    OFCOM may require—

           (a)            a communications provider, or

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           (b)            a person who makes associated facilities available to others,

            to provide OFCOM with all such information as they consider necessary for

the purpose specified in subsection (2).

     (2)           That purpose is the carrying out—

           (a)           with a view to publication, and

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           (b)           in the interest of the end-users of public electronic communications

services,

            of comparative overviews of the quality and prices of such services.

     (3)    OFCOM may also require—

           (a)            a communications provider, or

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           (b)            a person who makes associated facilities available to others,

            to provide them, for use for such statistical purposes as they think fit, with

information relating to any electronic communications network, electronic

communications service or associated facilities.

     (4)    A person required to provide information under this section must provide it in

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such manner and within such reasonable period as may be specified by

OFCOM.

     (5)    The powers in this section are subject to the limitations in section 134.

 134   Restrictions on imposing information requirements

     (1)    This section limits the purposes for which, and manner in which, information

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may be required under sections 132 and 133.

     (2)    OFCOM are not to require the provision of information for the purpose of

ascertaining whether a contravention of a general condition has occurred, or is

occurring, unless—

           (a)           the requirement is imposed for the purpose of investigating a matter

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about which OFCOM have received a complaint;

           (b)           the requirement is imposed for the purposes of an investigation that

OFCOM have decided to carry out into whether or not the general

condition in question has been complied with;

 

 

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

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           (c)           the condition in question is one which OFCOM have reason to suspect

is one that has been or is being contravened; or

           (d)           the condition in question is one falling within section 48(1)(d).

     (3)    OFCOM are not to require the provision of information under section 132 or

133 except—

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           (a)           by a demand for the information that describes the required

information and sets out OFCOM’s reasons for requiring it; and

           (b)           where the making of a demand for the information is proportionate to

the use to which the information is to be put in the carrying out of

OFCOM’s functions.

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     (4)    The reasons for requiring information for statistical purposes under section 132

or 133 must set out the statistical purposes for which the information is

required.

     (5)    Except in the case of a demand made in the manner authorised by subsection

(6), a demand for information required under section 132 or 133 must be

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contained in a notice served on the person from whom the information is

required.

     (6)    In the case of information required by OFCOM for the purpose of ascertaining

who is liable to charges under section 35, the demand may—

           (a)           be made by being published in such manner as OFCOM consider

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appropriate for bringing it to the attention of the persons who are

described in the demand as the persons from whom the information is

required; and

           (b)           take the form of a general demand for a person so described to provide

information when specified conditions relevant to his liability to such

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charges are satisfied in his case.

 135   Notification of contravention of information requirements

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

a person is contravening, or has contravened, a requirement imposed under

section 132 or 133, they may give that person a notification under this section.

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

           (a)           sets out the determination made by OFCOM;

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

determination has been made; and

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

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

     (3)    Those things are—

           (a)           making representations about the matters notified; and

           (b)           complying with any notified requirement of which he remains in

contravention.

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     (4)    Subject to subsections (5) to (7), 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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           (a)           by specifying a longer period in the notification; or

 

 

 
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