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Communications Bill


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

    125

 

Restrictions in leases and licences

 132   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—

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

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,

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

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

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to an electronic communications matter; or

           (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—

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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.

 

 

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

    126

 

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

to—

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

communications service;

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

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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

electronic communications apparatus.

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     (8)    In this section—

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

code;

                    “lease” includes—

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

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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;

                    “relevant electronic communications network” means—

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                  (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

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

connected (directly or indirectly) to such a network.

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     (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.

     (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

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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.

     (12)   Section 400 applies to the powers of OFCOM to make orders under this section.

     (13)          A statutory instrument containing an order made by OFCOM under this

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section shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

Information provisions

 133   Information required for purposes of Chapter 1 functions

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

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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—

           (a)           a communications provider;

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

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

    127

 

           (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

service condition applies or has applied;

           (e)           a person who supplies electronic communications apparatus;

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           (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.

     (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

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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

occurring;

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

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36;

           (c)           ascertaining whether a provision of a condition set under section 43

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

purpose for which it was made;

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

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falling within section 49(1)(d);

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

section 64;

           (f)           carrying out a review under section 64 or 68;

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

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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 103;

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

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

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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

OFCOM.

     (5)    The powers in this section are subject to the limitations in section 135.

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 134   Information required for related purposes

     (1)    OFCOM may require—

           (a)            a communications provider, or

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

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

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the purpose specified in subsection (2).

     (2)           That purpose is the carrying out—

           (a)           with a view to publication, and

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

services,

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

 

 

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

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     (3)    OFCOM may also require—

           (a)            a communications provider, or

           (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

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communications service or associated facilities.

     (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

OFCOM.

     (5)    The powers in this section are subject to the limitations in section 135.

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 135   Restrictions on imposing information requirements

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

may be required under sections 133 and 134.

     (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

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occurring, unless—

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

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

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condition in question has been complied with;

           (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 49(1)(d).

     (3)    OFCOM are not to require the provision of information under section 133 or

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134 except—

           (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

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OFCOM’s functions.

     (4)    The reasons for requiring information for statistical purposes under section 133

or 134 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

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(6), a demand for information required under section 133 or 134 must be

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 36, the demand may—

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

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

 

 

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

    129

 

           (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

charges are satisfied in his case.

 136   Notification of contravention of information requirements

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

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

section 133 or 134, they may give that person a notification 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 contravention in respect of which that

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determination has been made; and

           (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; and

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

contravention.

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

    130

 

           (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 137(2) that the contravention to which the previous

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notification related did occur.

 137   Penalties for contravention of information requirements

     (1)    This section applies where—

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

section 136;

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           (b)           OFCOM have allowed the notified person 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 impose a penalty on the notified person if—

           (a)           they are satisfied that he has, in one or more of the respects notified,

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been in contravention of the requirement notified under section 136;

           (b)           he has not, during the period allowed under that section, complied

with the notified requirement; and

           (c)           no proceedings for an offence under section 142 have been brought

against the notified person in respect of the contravention.

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     (3)    Where a notification under section 136 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 in respect of the period of contravention specified

in the notification.

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

exceeding £50,000 as OFCOM determine to be both—

           (a)           appropriate; and

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

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

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

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

contraventions of which have been notified to him under section 136.

     (7)    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

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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.

     (8)    A penalty imposed under this section—

           (a)           must be paid to OFCOM; and

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

    131

 

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

accordingly.

     (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 (5).

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     (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

resolution of each House.

 138   Suspending service provision for information contraventions

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

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communications provider or who makes associated facilities available (“the

contravening provider”) if they are satisfied—

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

requirements imposed under sections 133 and 134, or either of them;

           (b)           the requirements are not requirements imposed for purposes

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connected with the carrying out of OFCOM’s functions in relation to

SMP apparatus conditions;

           (c)           that an attempt, by the imposition of penalties under section 137 or the

bringing of proceedings for an offence under section 142, to secure

compliance with the contravened requirements has failed; and

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           (d)           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 that the entitlement of the contravening 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

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

direction.

     (3)    A direction under this section—

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           (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

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

whom it is given.

     (4)    A direction under this section—

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           (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

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

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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.

 

 

 
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