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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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contravening provider with the requirements to pay the charges fixed

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

           (c)           that an attempt, by the imposition of penalties under section 39, to

secure such compliance has failed; and

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

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

the contraventions.

     (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

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under section 104 in any person’s case; and

           (b)           OFCOM give a direction under section 40, 98, 130 or 138 for the

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

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

electronic communications network as that person is prohibited from

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

provide such a network, or part of a network.

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

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

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

under section 104 in any person’s case; and

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

serious contraventions of requirements imposed by virtue of any

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restrictions or conditions under section 107.

     (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

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

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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

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

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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

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

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section 104.

     (7)    The statement required by section 105(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.

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

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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

 

 

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

    107

 

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

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

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

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

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

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 115

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

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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           (c)           require the removal of, or prohibit the use of, any apparatus lawfully

installed on, in or over any premises before that suspension.

     (12)   Subsection (9) of section 40 applies for the purposes of subsection (1) as it

applies for the purposes of that section.

 112   Procedure for directions under s. 111

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

111(4) suspending the application of the electronic communications code in the

case of any person (“the operator”) unless they have—

           (a)           notified the operator of the proposed suspension and of the steps (if

any) that they are proposing to take under section 115;

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

proposals and of proposing steps for remedying the situation that has

given rise to the proposed suspension; and

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

period allowed by them for the operator to take advantage of that

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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 111 in an urgent

case, OFCOM must, provide the operator with an opportunity of—

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

steps taken under section 115 in connection with the suspension; and

           (b)           proposing steps for remedying the situation that has given rise to the

situation.

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

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

appearing to OFCOM to require the suspension fall within subsection

 

 

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

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(5), to allow time, before giving a direction under section 111, for the

making and consideration of representations; and

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

of subsection (1).

     (5)    Circumstances fall within this subsection if they have resulted in, or create an

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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

operator) who are communications providers or persons who make

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associated facilities available; or

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

electronic communications networks, electronic communications

services or associated facilities.

 113   Modification and revocation of application of code

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     (1)    OFCOM may at any time modify the terms on which, by virtue of section

104(5), the code is applied in a person’s case.

     (2)    OFCOM may revoke a direction applying the electronic communications code

in a person’s case if an application for the revocation has been made by that

person.

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     (3)    If at any time it appears to OFCOM that a person in whose case the electronic

communications code has been applied is not the provider of an electronic

communications network or conduit system for the purposes of which the code

applies, OFCOM may revoke the direction applying the code in his case.

     (4)    A modification or revocation under this section shall be by a further direction

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under section 104 to the person in whose case the electronic communications

code has been applied by the direction being modified or revoked.

     (5)    The matters required by section 105(8) to be included, in the case of a direction

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

whichever of the following is applicable—

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           (a)           a statement of their proposal to modify terms imposed under section

104(5);

           (b)           a statement of their proposal to revoke the direction applying the code.

 114   Notification of cessation by person to whom code applies

     (1)    This section applies where, by virtue of a direction under section 104, the

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electronic communications code applies in any person’s case for the purposes

of the provision by him of—

           (a)           an electronic communications network which is not of a description

designated for the purposes of section 31; or

           (b)           such a system of conduits as is mentioned in section 104(4)(b).

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     (2)    If that person ceases to provide that network or conduit system, he must notify

OFCOM of that fact.

     (3)    A notification under this section must be given within such period and in such

manner as may be required by OFCOM.

 

 

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

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     (4)    OFCOM may impose a penalty on a person who fails to comply with a

requirement imposed by or under this section.

     (5)    The amount of a penalty imposed on a person under this section is to be such

amount not exceeding £1,000 as OFCOM may determine to be both—

           (a)           appropriate; and

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

     (6)    Where OFCOM impose a penalty on a person under this section, they shall—

           (a)           within one week of making their decision to impose the penalty, notify

that person of that decision and of their reasons for that decision; and

           (b)           in that notification, fix a reasonable period after it is given as the period

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within which the penalty is to be paid.

     (7)    A penalty imposed under this section—

           (a)           must be paid to OFCOM; and

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

accordingly.

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     (8)    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 (5).

     (9)    No order is to be made containing provision authorised by subsection (8)

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

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resolution of each House.

 115   Transitional schemes on cessation of application of code

     (1)    Where it appears to OFCOM—

           (a)           that the electronic communications code has ceased or is to cease to

apply, to any extent, in the case of any person (“the former operator”),

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           (b)           that it has ceased or will cease so to apply for either of the reasons

specified in subsection (2), and

           (c)           that it is appropriate for transitional provision to be made in connection

with it ceasing to apply in the case of the former operator,

            they may by order make a scheme containing any such transitional provision

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as they think fit in that case.

     (2)    Those reasons are—

           (a)           the suspension under section 111 of the application of the code in the

former operator’s case;

           (b)           the revocation or modification under section 113 of the direction

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applying the code in his case.

     (3)    A scheme contained in an order under this section may, in particular—

           (a)           impose any one or more obligations falling within subsection (4) on the

former operator;

           (b)           provide for those obligations to be enforceable in such manner

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(otherwise than by criminal penalties) and by such persons as may be

specified in the scheme;

           (c)           authorise the retention of apparatus on any land pending its

subsequent use for the purposes of an electronic communications

network, electronic communications service or conduit system to be

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provided by any person;

 

 

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

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           (d)           provide for the transfer to such persons as may be specified in, or

determined in accordance with, the scheme of any rights or liabilities

arising out of any agreement or other obligation entered into or

incurred in pursuance of the code by the former operator;

           (e)           provide, for the purposes of any provision contained in the scheme by

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virtue of any of the preceding paragraphs, for such questions arising

under the scheme as are specified in the scheme, or are of a description

so specified, to be referred to, and determined by, OFCOM.

     (4)    The obligations referred to in subsection (3)(a) are—

           (a)           an obligation to remove anything installed in pursuance of any right

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conferred by or in accordance with the code;

           (b)           an obligation to restore land to its condition before anything was done

in pursuance of any such right; or

           (c)            an obligation to pay the expenses of any such removal or restoration.

     (5)    Sections 108 to 110 apply in relation to the requirements imposed by virtue of

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a scheme contained in an order under this section as they apply in relation to a

requirement imposed by virtue of restrictions or conditions under section 107.

     (6)    Section 400 applies to the power of OFCOM to make an order under this

section.

 116   Compulsory acquisition of land etc.

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Schedule 4 (which provides for compulsory acquisition of land by the provider

of an electronic communications network in whose case the electronic

communications code applies and for entry on land by persons nominated by

such a provider) shall have effect.

 117   Power to give assistance in relation to certain proceedings

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     (1)    This section applies where any actual or prospective party to any proceedings

falling within subsection (2) (other than the operator, within the meaning of the

electronic communications code) applies to OFCOM for assistance under this

section in relation to those proceedings.

     (2)    The proceedings falling within this subsection are any actual or prospective

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proceedings in which there falls to be determined any question arising under,

or in connection with—

           (a)           the electronic communications code as applied in any person’s case by

a direction under section 104; or

           (b)           any restriction or condition subject to which that code applies.

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     (3)    OFCOM may grant the application if, on any one or more of the following

grounds, they think fit to do so—

           (a)           on the ground that the case raises a question of principle;

           (b)           on the ground that it is unreasonable, having regard to the complexity

of the case or to any other matter, to expect the applicant to deal with

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the case without assistance under this section;

           (c)           by reason of any other special consideration.

     (4)    Assistance by OFCOM under this section may include—

           (a)           giving advice or arranging for the giving of advice by a solicitor or

counsel;

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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)           procuring or attempting to procure the settlement of the matter in

dispute;

           (c)           arranging for the giving of any assistance usually given by a solicitor or

counsel—

                  (i)                 in the steps preliminary or incidental to proceedings; or

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                  (ii)                in arriving at, or giving effect to, a compromise to avoid

proceedings or to bring them to an end;

           (d)           arranging for representation by a solicitor or counsel;

           (e)           arranging for the giving of any other assistance by a solicitor or counsel;

           (f)           any other form of assistance which OFCOM consider appropriate.

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     (5)           Nothing in subsection (4)(d) shall be taken to affect the law and practice

regulating the descriptions of persons who may appear in, conduct or defend

any proceedings, or who may address the court in any proceedings.

     (6)    In so far as expenses are incurred by OFCOM in providing the applicant with

assistance under this section, the recovery of those expenses (as taxed or

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assessed in such manner as may be prescribed by rules of court) shall constitute

a first charge for the benefit of OFCOM—

           (a)           on any costs or expenses which (whether by virtue of a judgment or

order of a court, or an agreement or otherwise) are payable to the

applicant by any other person in respect of the matter in connection

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with which the assistance is given; and

           (b)           so far as relates to costs or expenses, on the applicant’s rights under a

compromise or settlement arrived at in connection with that matter to

avoid proceedings, or to bring them to an end.

     (7)    A charge conferred by subsection (6) is subject to—

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           (a)           any charge imposed by section 10(7) of the Access to Justice Act 1999

(c. 22) and any provision made by or under Part 1 of that Act for the

payment of any sum to the Legal Services Commission;

           (b)           any charge or obligation for payment in priority to other debts under

the Legal Aid (Scotland) Act 1986 (c. 47); or

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           (c)           any charge under the Legal Aid, Advice and Assistance (Northern

Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).

Regulation of premium rate services

 118   Conditions regulating premium rate services

     (1)    OFCOM shall have the power, for the purpose of regulating the provision,

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content, promotion and marketing of premium rate services, to set conditions

under this section that bind the persons to whom they are applied.

     (2)    Conditions under this section may be applied either—

           (a)           generally to every person who provides a premium rate service; or

           (b)           to every person who is of a specified description of such persons, or

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who provides a specified description of such services.

     (3)    The only provision that may be made by conditions under this section is

provision requiring the person to whom the condition applies to comply, to the

extent required by the condition, with—

 

 

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

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           (a)                         directions given in accordance with an approved code by the

enforcement authority and for the purpose of enforcing its provisions;

and

           (b)           if there is no such code, the provisions of the order for the time being in

force under section 120.

5

     (4)    The power to set a condition under this section includes power to modify or

revoke the conditions for the time being in force under this section.

     (5)    Sections 45 and 46 apply to the setting, modification and revocation of a

condition under this section as they apply to the setting, modification and

revocation of a condition under section 43.

10

     (6)    OFCOM must send a copy of every notification published under section 46(1)

with respect to a condition under this section to the Secretary of State.

     (7)    A service is a premium rate service for the purposes of this Chapter if—

           (a)           it is a service falling within subsection (8);

           (b)           there is a charge for the provision of the service;

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           (c)           the charge is required to be paid to a person providing an electronic

communications service by means of which the service in question is

provided; and

           (d)           that charge is imposed in the form of a charge made by that person for

the use of the electronic communications service.

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     (8)    A service falls within this subsection if its provision consists in—

           (a)           the provision of the contents of communications transmitted by means

of an electronic communications network; or

           (b)           allowing the user of an electronic communications service to make use,

by the making of a transmission by means of that service, of a facility

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made available to the users of the electronic communications service.

     (9)    For the purposes of this Chapter a person provides a premium rate service

(“the relevant service”) if—

           (a)           he provides the contents of the relevant service;

           (b)                         he exercises editorial control over the contents of the relevant service;

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           (c)                         he is a person who packages together the contents of the relevant

service for the purpose of facilitating its provision;

           (d)                         he makes available a facility comprised in the relevant service; or

           (e)                         he falls within subsection (10), (11) or (12).

     (10)          A person falls within this subsection if—

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           (a)           he is the provider of an electronic communications service used for the

provision of the relevant service; and

           (b)           under arrangements made with a person who is a provider of the

relevant service falling within subsection (9)(a) to (d), he is entitled to

retain some or all of the charges received by him in respect of the

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provision of the relevant service or of the use of his electronic

communications service for the purposes of the relevant service.

     (11)   A person falls within this subsection if—

           (a)           he is the provider of an electronic communications network used for

the provision of the relevant service; and

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           (b)           an agreement relating to the use of the network for the provision of that

service subsists between the provider of the network and a person who

 

 

 
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