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Communications Bill


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

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 104   Procedure for directions applying code

     (1)    OFCOM are not to give a direction applying the electronic communications

code in any person’s case except on an application made for the purpose by

that person.

     (2)    If OFCOM publish a notification setting out their requirements with respect

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to—

           (a)           the content of an application for a direction applying the electronic

communications code, and

           (b)           the manner in which such an application is to be made,

            such an application must be made in accordance with the requirements for the

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time being in force.

     (3)    OFCOM may—

           (a)           from time to time review the requirements for the time being in force

for the purposes of subsection (2); and

           (b)           on any such review, modify them in such manner as they think fit by

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giving a notification of the revised requirements.

     (4)    In considering whether to apply the electronic communications code in any

person’s case, OFCOM must have regard, in particular, to each of the following

matters—

           (a)           the benefit to the public of the electronic communications network or

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conduit system by reference to which the code is to be applied to that

person;

           (b)           the practicability of the provision of that network or system without the

application of the code;

           (c)           the need to encourage the sharing of the use of electronic

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communications apparatus;

           (d)           whether the person in whose case it is proposed to apply the code will

be able to meet liabilities arising as a consequence of—

                  (i)                 the application of the code in his case; and

                  (ii)                any conduct of his in relation to the matters with which the code

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deals.

     (5)    For the purposes of subsections (5) and (6) of section 3 OFCOM’s duty under

subsection (4) ranks equally with their duties under that section.

     (6)    Before giving a direction under section 103, OFCOM must—

           (a)           publish a notification of their proposal to give the direction; and

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           (b)           consider any representations about that proposal that are made to them

within the period specified in the notification.

     (7)    A notification for the purposes of subsection (6)(a) must contain the

following—

           (a)           a statement of OFCOM’s proposal;

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           (b)           a statement of their reasons for that proposal;

           (c)           a statement of the period within which representations may be made to

them about the proposal.

     (8)    The statement of OFCOM’s proposal must—

           (a)           contain a statement that they propose to apply the code in the case of

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the person in question;

           (b)           set out any proposals of theirs to impose terms under section 103(5);

 

 

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

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            but this subsection is subject to sections 110(7) and 112(5).

     (9)    The period specified as the period within which representations may be made

must end no less than one month after the day of the publication of the

notification.

     (10)   The publication by OFCOM of a notification for any of the purposes of this

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section must be a publication in such manner as OFCOM consider appropriate

for bringing the notification to the attention of the persons who, in their

opinion, are likely to be affected by it.

 105   Register of persons in whose case code applies

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

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in whose case the electronic communications code applies by virtue of a

direction under section 103.

     (2)    OFCOM must record in the register every direction given under that section.

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

OFCOM consider appropriate.

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

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

inspection; and

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

the register.

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

such manner as OFCOM consider appropriate for bringing it to the attention

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

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

           (a)           during such hours, and

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           (b)           on payment of such fees,

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

 106   Restrictions and conditions subject to which code applies

     (1)    Where the electronic communications code is applied in any person’s case by

a direction given by OFCOM, that code is to have effect in that person’s case

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subject to such restrictions and conditions as may be contained in regulations

made by the Secretary of State.

     (2)    In exercising his power to make regulations under this section it shall be the

duty of the Secretary of State to have regard to each of the following—

           (a)           the duties imposed on OFCOM by sections 3 and 4;

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           (b)           the need to protect the environment and, in particular, to conserve the

natural beauty and amenity of the countryside;

           (c)           the need to ensure that highways are not damaged or obstructed, and

traffic not interfered with, to any greater extent than is reasonably

necessary;

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           (d)           the need to encourage the sharing of the use of electronic

communications apparatus;

           (e)           the need to secure that a person in whose case the code is applied will

be able to meet liabilities arising as a consequence of—

 

 

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

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                  (i)                 the application of the code in his case; and

                  (ii)                any conduct of his in relation to the matters with which the code

deals.

     (3)    The power of the Secretary of State to provide by regulations for the

restrictions and conditions subject to which the electronic communications

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code has effect includes power to provide for restrictions and conditions which

are framed by reference to any one or more of the following—

           (a)           the making of a determination in accordance with the regulations by a

person specified in the regulations;

           (b)           the giving of an approval or consent by a person so specified; or

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           (c)           the opinion of any person.

     (4)    Before making any regulations under this section, the Secretary of State must

consult—

           (a)           OFCOM; and

           (b)           such other persons as he considers appropriate.

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 107   Enforcement of restrictions and conditions

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

a person in whose case the electronic communications code applies is

contravening, or has contravened, a requirement imposed by virtue of any

restrictions or conditions under section 106, they may give him a notification

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under this section.

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

           (a)           sets out the determination made by OFCOM;

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

determination has been made; and

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

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

     (3)    Those things are—

           (a)           making representations about the matters notified;

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

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contravention; and

           (c)           remedying the consequences of notified contraventions.

     (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.

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

either—

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

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

period.

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     (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.

     (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;

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

would be appropriate; and

           (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

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           (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.

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

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

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

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

earlier notification;

           (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

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

been imposed in respect of the notified contravention.

     (10)   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 requirement; 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 108(2) or 109(2) that the contravention to which the previous

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notification related did occur.

 108   Enforcement notification for contravention of code restrictions

     (1)    This section applies where—

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

section 107;

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           (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 been in contravention, in one or more of the respects

notified, of a requirement specified in the notification under section

107; and

           (b)           that he has not, during the period allowed under section 107, taken all

such steps as they consider appropriate—

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                  (i)                 for complying with that requirement; and

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

that requirement.

     (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

requirement as may be specified in the notification;

 

 

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

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           (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—

           (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;

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and

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

notification.

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

given to comply with it.

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     (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

Court of Session Act 1988 (c. 36); or

           (c)           for any other appropriate remedy or relief.

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 109   Penalties for contravention of code restrictions

     (1)    This section applies (in addition to section 108) where—

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

section 107;

           (b)           OFCOM have allowed the notified provider an opportunity of making

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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—

           (a)           has been in contravention, in any of the respects notified, of a

requirement specified in the notification under section 107; and

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

steps as they consider appropriate—

                  (i)                 for complying with the notified requirement; and

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

that requirement.

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     (3)    Where a notification under section 107 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

one penalty may be imposed under this section in respect of the period of

contravention specified in the notification.

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

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

     (6)    The amount of a penalty imposed under this section is to be such amount not

exceeding £10,000 as OFCOM determine to be—

           (a)           appropriate; and

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

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

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

 

 

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

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

contraventions of which have been notified to him under section 107;

and

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

contraventions.

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     (8)    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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     (9)    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.

     (10)   The Secretary of State may by order amend this section so as to substitute a

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different maximum penalty for the maximum penalty for the time being

specified in subsection (6).

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

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

resolution of each House.

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 110   Suspension of application of code

     (1)    OFCOM may suspend the application of the electronic communications code

in any person’s case if they are satisfied—

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

requirements to pay administrative charges fixed under section 35

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(whether in respect of the whole or a part of the charges);

           (b)           that the bringing of proceedings for the recovery of the amounts

outstanding has failed to secure complete compliance by the

contravening provider with the requirements to pay the charges fixed

in his case, or has no reasonable prospect of securing such compliance;

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           (c)           that an attempt, by the imposition of penalties under section 38, to

secure such compliance has failed; and

           (d)           that the suspension of the application of the code is appropriate and

proportionate to the seriousness (when repeated as they have been) of

the contraventions.

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     (2)    OFCOM may, to the extent specified in subsection (3), suspend the application

in that person’s case of the electronic communications code if—

           (a)           the electronic communications code has been applied by a direction

under section 103 in any person’s case; and

           (b)           OFCOM give a direction under section 39, 97, 129 or 137 for the

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suspension or restriction of that person’s entitlement to provide an

electronic communications network, or a part of such a network.

     (3)    The extent, in any person’s case, of a suspension under subsection (2) must not

go beyond the application of the code for the purposes of so much of an

electronic communications network as that person is prohibited from

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providing by virtue of the suspension or restriction of his entitlement to

provide such a network, or part of a network.

 

 

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

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     (4)    OFCOM may, to the extent specified in subsection (5), suspend the application

in that person’s case of the electronic communications code if—

           (a)           the electronic communications code has been applied by a direction

under section 103 in any person’s case; and

           (b)           that person is a person in whose case there have been repeated and

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serious contraventions of requirements imposed by virtue of any

restrictions or conditions under section 106.

     (5)    The extent, in any person’s case, of a suspension under subsection (4) must not

go beyond the following applications of the code in his case—

           (a)           its application for the purposes of electronic communications

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networks, or parts of such a network, which are not yet in existence at

the time of the suspension;

           (b)           its application for the purposes of conduit systems, or parts of such

systems, which are not yet in existence or not yet used for the purposes

of electronic communications networks; and

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           (c)           its application for other purposes in circumstances in which the

provision of an electronic communications network, or part of such a

network, would not have to cease if its application for those purposes

were suspended.

     (6)    A suspension under this section of the application of the code in any person’s

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case must be by a further direction given to that person by OFCOM under

section 103.

     (7)    The statement required by section 104(8) to be included, in the case of a

direction for the purposes of this section, in the statement of OFCOM’s

proposal is a statement of their proposal to suspend the application of the code.

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     (8)    A suspension of the application of the electronic communications code in any

person’s case—

           (a)           shall cease to have effect if the suspension is under subsection (2) and

the network suspension or restriction ceases to have effect; but

           (b)           subject to that shall continue in force until such time (if any) as it is

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withdrawn by OFCOM.

     (9)    In subsection (8) the reference to the network suspension or restriction, in

relation to a suspension of the application of the electronic communications

code, is a reference to the suspension or restriction of an entitlement to provide

an electronic communications network, or part of such a network, which is the

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suspension or restriction by reference to which the application of the code was

suspended under subsection (2).

     (10)   Subject to subsection (11), where the application of the electronic

communications code is suspended in a person’s case, he shall not, while it is

so suspended, be entitled to exercise any right conferred on him by or by virtue

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of the code.

     (11)   The suspension, in a person’s case, of the application of the electronic

communications code does not, except so far as otherwise provided by a

scheme contained in an order under section 114

           (a)           affect (as between the original parties to it) any agreement entered into

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for the purposes of the code or any agreement having effect in

accordance with it;

           (b)           affect anything done under the code before the suspension of its

application; or

 

 

 
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