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Communications Bill


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

    94

 

conditions on the contravening provider as appear to OFCOM to be

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

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

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

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

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

been put in consequence of the direction.

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

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

this section or modify its conditions—

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

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

           (c)           to such extent and in relation to such networks, services or facilities, or

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

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

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of conditions set under section 42 to the extent that—

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

section 91, OFCOM have determined for the purposes of section 92(2)

or 93(2) that such a contravention did occur;

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

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determination, one or more further notifications have been given to

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

42; and

           (c)           the previous notification and the subsequent ones all relate to

contraventions of the same condition (whether the same contravention

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or different contraventions).

 98    Suspending apparatus supply for contraventions of conditions

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

electronic communications apparatus (“the contravening supplier”) if they are

satisfied—

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

apparatus conditions;

           (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 to the contravening supplier to cease to act as a supplier of

electronic communications apparatus (either generally or in relation to

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apparatus of a particular description); or

           (b)           a direction imposing such restrictions as may be set out in the direction

on the supply by that supplier of electronic communications apparatus

(either generally or in relation to apparatus of a particular description).

     (3)    A direction under this section takes effect, except so far as it otherwise

45

provides, for an indefinite period beginning with the time at which it is notified

to the person to whom it is given.

 

 

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

    95

 

     (4)    A direction under this section—

           (a)           may provide for a prohibition or restriction to take effect only at a time

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

           (b)           in connection with a prohibition or restriction contained in the

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

5

conditions on the contravening supplier as appear to OFCOM to be

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

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

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

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

10

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

been put in consequence of the direction.

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

representations or proposals made to them), they may at any time revoke a

direction under this section or modify its conditions—

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

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

           (c)           to such extent and in relation to such apparatus or descriptions of

apparatus as they may determine.

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

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of SMP apparatus conditions to the extent that—

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

91, OFCOM have determined for the purposes of section 92(2) or 93(2)

that such a contravention did occur;

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

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determination, one or more further notifications have been given to

that person in respect of contraventions of an SMP apparatus condition;

and

           (c)           the previous notification and the subsequent ones all relate to

contraventions of the same condition (whether the same contravention

30

or different contraventions).

 99    Procedure for directions under ss. 97 and 98

     (1)    Except in an urgent case, OFCOM are not to give a direction under section 97

or 98 unless they have—

           (a)           notified the contravening provider or contravening supplier of the

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proposed direction and of the conditions (if any) which they are

proposing to impose by that direction;

           (b)           provided him with an opportunity of making representations about the

proposals and of proposing steps for remedying the situation; and

           (c)           considered every representation and proposal made to them during the

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period allowed by them for the contravening provider or the

contravening supplier to take advantage of that opportunity.

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

giving of the notification.

     (3)    As soon as practicable after giving a direction under section 97 or 98 in an

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urgent case, OFCOM must, provide the contravening provider or contravening

supplier with an opportunity of—

 

 

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

    96

 

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

its conditions; and

           (b)           proposing steps for remedying the situation.

     (4)    A case is an urgent case for the purposes of this section if OFCOM—

           (a)           consider that it would be inappropriate, because the contraventions in

5

question fall within subsection (5), to allow time, before giving a

direction under section 97 or 98, for the making and consideration of

representations; and

           (b)           decide for that reason to act in accordance with subsection (3), instead

of subsection (1).

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     (5)    The contraventions fall within this subsection if they have resulted in, or create

an immediate risk of—

           (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 (apart from the

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contravening provider or contravening supplier) who are

communications providers or persons who make associated facilities

available; or

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

electronic communications networks, electronic communications

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services or associated facilities.

     (6)    In this section—

                    “contravening provider” has the same meaning as in section 97; and

                     “contravening supplier” has the same meaning as in section 98.

 100   Enforcement of directions under ss. 95, 97 and 98

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     (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—

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

95(4) or 97; or

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

     (2)    A person is guilty of an offence if he supplies electronic communications

apparatus—

           (a)           while prohibited from doing so by a direction under section 98; or

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

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

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

maximum;

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

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

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a direction under section 95, 97 or 98 as they apply in relation to a

contravention of conditions set under section 42.

 101   Civil liability for breach of conditions or enforcement notification

     (1)    The obligation of a person to comply with—

 

 

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

    97

 

           (a)           the conditions set under section 42 which apply to him,

           (b)           requirements imposed on him by an enforcement notification under

section 92, and

           (c)           the conditions imposed by a direction under section 95 or 97,

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

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of the condition or requirement.

     (2)    Where a duty is owed by virtue of this section 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.

     (3)    In proceedings brought against a person by virtue of subsection (2)(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 or requirement

in question.

     (4)           The consent of OFCOM is required for the bringing of proceedings by virtue of

subsection (1)(a).

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     (5)    Where OFCOM give a consent for the purposes of subsection (4) subject to

conditions relating to the conduct of the proceedings, the proceedings are not

to be carried on by that person except in compliance with those conditions.

OFCOM’s duty to intervene on network access issues

 102   Consideration and determination of network access questions

25

     (1)    This section applies where—

           (a)           it appears to OFCOM that a network access question has arisen and

needs to be determined; and

           (b)           they consider that, for the purpose of determining that question, it

would be appropriate for them to exercise their powers under this

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Chapter to set, modify or revoke conditions falling within subsection

(2).

     (2)    Conditions falling within this subsection are—

           (a)           access-related conditions authorised by section 70(2) or (4); and

           (b)           SMP services conditions authorised by section 84.

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     (3)    Before considering whether, for the purpose of determining the question that

has arisen, to set, modify or revoke conditions falling within subsection (2),

OFCOM must publish a notification of their proposal to consider that matter.

     (4)    If, after considering that matter, OFCOM decide not to exercise their powers to

set, modify or revoke conditions falling within subsection (2), they must

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publish a notification of their decision.

     (5)    A notification under this section must be published in the manner that OFCOM

consider appropriate for bringing it to the attention of the persons who, in

 

 

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

    98

 

OFCOM’s opinion, would be likely to be affected by action taken for

determining the network access question that appears to them to have arisen.

     (6)    In this section “network access question” means a question relating to network

access or the terms or conditions on which it is or or may be provided in a

particular case.

5

Electronic communications code

 103   Application of the electronic communications code

     (1)    In this Chapter “the electronic communications code” means the code set out

in Schedule 2 to the Telecommunications Act 1984 (c. 12).

     (2)    Schedule 3 (which amends Schedule 2 to the Telecommunications Act 1984 for

10

the purpose of translating the telecommunications code into a code applicable

in the context of the new regulatory regime established by this Act) shall have

effect.

     (3)    The electronic communications code shall have effect—

           (a)           in the case of a person to whom it is applied by a direction given by

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OFCOM; and

           (b)           in the case of the Secretary of State or any Northern Ireland department

where the Secretary of State or that department is providing or

proposing to provide an electronic communications network.

     (4)    The only purposes for which the electronic communications code may be

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applied in a person’s case by a direction under this section are—

           (a)           the purposes of the provision by him of an electronic communications

network; or

           (b)           the purposes of the provision by him of a system of conduits which he

is making available, or proposing to make available, for use by

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providers of electronic communications networks for the purposes of

the provision by them of their networks.

     (5)    A direction applying the electronic communications code in any person’s case

may provide for that code to have effect in his case—

           (a)           in relation only to such places or localities as may be specified or

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described in the direction;

           (b)           for the purposes only of the provision of such electronic

communications network, or part of an electronic communications

network, as may be so specified or described; or

           (c)           for the purposes only of the provision of such conduit system, or part

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of a conduit system, as may be so specified or described.

     (6)    The Secretary of State may by order provide for the electronic communications

code to have effect for all purposes with a different amount substituted for the

amount for the time being specified in paragraph 16(3) of the code (minimum

compensation).

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     (7)    In this section “conduit” includes a tunnel, subway, tube or pipe.

 

 

 
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Revised 10 June 2003