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Communications Bill


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

    132

 

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

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

under this section or modify its conditions—

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

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

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           (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

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

extent that—

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

136, OFCOM have determined for the purposes of section 137(2) that

such a contravention did occur; and

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

determination, one or more further notifications have been given to

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that person in respect of contraventions of such requirements;

            and for the purposes of this subsection it shall be immaterial whether the

notifications related to the same contravention or to different contraventions of

the same or different requirements or of requirements under different sections.

 139   Suspending apparatus supply for information contraventions

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

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

satisfied—

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

requirements imposed under section 133;

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           (b)           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

           (c)           that the giving of the direction is appropriate and proportionate to the

seriousness (when repeated as they have been) of the contraventions.

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     (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

apparatus of a particular description); or

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

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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

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

to the person to whom it is given.

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     (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

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conditions on the contravening supplier as appear to OFCOM to be

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

 

 

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

    133

 

     (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

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

been put in consequence of the direction.

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     (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—

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

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

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           (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 contraventions by a person of requirements

imposed under section 133 are repeated contraventions if—

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

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136, OFCOM have determined for the purposes of section 137(2) that

such a contravention did occur; and

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

determination, one or more further notifications have been given to

that person in respect of contraventions of such requirements;

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            and for the purposes of this subsection it shall be immaterial whether the

notifications related to the same contravention or to different contraventions of

the same or different requirements.

 140   Procedure for directions under ss. 138 and 139

     (1)    Except in an urgent case, OFCOM are not to give a direction under section 138

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or 139 unless they have—

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

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

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proposals and of proposing steps for remedying the situation; and

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

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

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giving of the notification.

     (3)    As soon as practicable after giving a direction under section 138 or 139 in an

urgent case, OFCOM must provide the contravening provider or contravening

supplier with an opportunity of—

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

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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

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

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direction under section 138 or 139, for the making and consideration of

representations; and

 

 

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

    134

 

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

of subsection (1).

     (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

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security;

           (b)           serious economic or operational problems for persons (apart from the

contravening provider or contravening supplier) who are

communications providers or persons who make associated facilities

available; or

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

electronic communications networks, electronic communications

services or associated facilities.

     (6)    In this section—

                    “contravening provider” has the same meaning as in section 138; and

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                     “contravening supplier” has the same meaning as in section 139.

 141   Enforcement of directions under ss. 138 and 139

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

network or electronic communications service, or makes available any

associated facility—

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

138; or

           (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—

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           (a)           while prohibited from doing so by a direction under section 139; or

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

     (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;

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

     (4)    Sections 92 to 97 apply in relation to a contravention of conditions imposed by

a direction under section 138 or 139 as they apply in relation to a contravention

of conditions set under section 43.

 142   Offences in connection with information requirements

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     (1)    A person who fails to provide information in accordance with a requirement of

OFCOM under section 133 or 134 is guilty of an offence and shall be liable—

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

maximum;

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

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     (2)    In proceedings against a person for an offence under subsection (1) it shall be

a defence for that person to show—

           (a)           that it was not reasonably practicable for him to comply with the

requirement within the period specified by OFCOM; but

 

 

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

    135

 

           (b)           that he has taken all reasonable steps to provide the required

information after the end of that period.

     (3)    A person is guilty of an offence if—

           (a)           in pursuance of any requirement under section 133 or 134, he provides

any information that is false in any material particular; and

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           (b)           at the time he provides it, he either knows it to be false or is reckless as

to whether or not it is false.

     (4)    A person guilty of an offence under subsection (3) shall be liable—

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

maximum;

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           (b)           on conviction on indictment, to imprisonment for a term not exceeding

two years or to a fine, or to both.

     (5)    Proceedings for an offence under subsection (1) may be brought in respect of a

contravention by a person of a requirement imposed under section 133 or 134

only if—

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           (a)           OFCOM have given the person a notification under section 136 in

respect of that contravention;

           (b)           the period allowed under that section for doing the things mentioned

in subsection (3) of that section has expired without the required

information having been provided; and

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           (c)           OFCOM have not imposed a financial penalty under section 137 in

respect of that contravention.

 143   Statement of policy on information gathering

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

general policy with respect to—

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           (a)           the exercise of their powers under sections 133 to 134; and

           (b)           the uses to which they are proposing to put information obtained under

those sections.

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

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

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

in such manner as they consider appropriate for bringing it to the attention of

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

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

sections 133 to 142 to have regard to the statement for the time being in force

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under this section.

 144   Provision of information by OFCOM

     (1)    OFCOM must comply with a request made by a person for the purposes of this

section—

           (a)           to notify the person whether or not a notification is required to be

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submitted by him under section 31;

           (b)           to notify the person whether a notification submitted by him for the

purposes of that section satisfies the requirements of this Chapter;

 

 

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

    136

 

           (c)           to provide the person with such information about his rights as may be

necessary for the purpose of facilitating the negotiation by him of his

right to network access; or

           (d)           to provide the person with such information as they consider necessary

to enable the applicant to apply for a direction under section 104 to be

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made in his case.

     (2)    A request for the purposes of this section must be made in such manner as

OFCOM may require.

     (3)    OFCOM is not required to comply with a request under this section if (without

having been asked to do so) they have already given that person the

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notification or information for which he is asking.

     (4)    Any notification or information which under subsection (1) must be given or

provided by OFCOM must be given or provided before the end of the period

of one week beginning with the day on which the request for the notification

or information was made to OFCOM.

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Abolition of telecommunications licensing etc.

 145   Repeal of provisions of Telecommunications Act 1984

The following provisions of the Telecommunications Act 1984 (c. 12) shall

cease to have effect—

           (a)           sections 5 to 8 (licensing provisions);

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           (b)           sections 9 to 11 (public telecommunications systems);

           (c)           sections 12 to 15 (modification of licences);

           (d)           sections 16 to 19 (enforcement of licences); and

           (e)           sections 27A to 27L (standards of performance of designated public

telecommunications operators).

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Local authority powers in relation to networks and services

 146   Powers of local authorities in connection with networks

     (1)           A local authority may borrow money for the purpose of providing a public

electronic communications network or public electronic communications

service.

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     (2)    A local authority may—

           (a)           provide a public electronic communications network part of which is

outside their area; and

           (b)           provide a public electronic communications service even if some of the

persons to whom they provide the service are outside their area.

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     (3)    In this section, a ‘local authority’ means—

           (a)           in relation to England, a London borough council or a district council;

           (b)           in relation to Wales, a county council or a county borough council;

           (c)           in Scotland, a council constituted under section 2 of the Local

Government etc. (Scotland) Act 1994 (c. 39).

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