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Communications Bill


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

    29

 

     (6)    The reference in subsection (1) to a transmission system includes a reference to

a transmission system consisting of no more than a transmitter used for the

conveyance of signals.

     (7)    In subsection (2) “a content service” means so much of any service as consists

in one or both of the following—

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           (a)           the provision of material with a view to its being comprised in signals

conveyed by means of an electronic communications network;

           (b)           the exercise of editorial control over the contents of signals conveyed by

means of a such a network.

     (8)    In this section references to the conveyance of signals include references to the

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transmission or routing of signals or of parts of signals and to the broadcasting

of signals for general reception.

     (9)    For the purposes of this section the cases in which software and stored data are

to be taken as being used for a particular purpose include cases in which they

have—

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           (a)           been installed or stored in order to be used for that purpose; and

           (b)           are available to be so used.

     (10)   In this section “signal” includes—

           (a)           anything comprising speech, music, sounds, visual images or

communications or data of any description; and

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           (b)           signals serving for the impartation of anything between persons,

between a person and a thing or between things, or for the actuation or

control of apparatus.

Notification by providers

 31    Advance notification to OFCOM

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     (1)    A person shall not—

           (a)           provide a designated electronic communications network,

           (b)           provide a designated electronic communications service, or

           (c)           make available a designated associated facility,

            unless, before beginning to provide it or to make it available, he has given a

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notification to OFCOM of his intention to provide that network or service, or

to make that facility available.

     (2)    An electronic communications network, electronic communications service or

associated facility is designated for the purposes of this section if it is of a

description of networks, services or facilities that is for the time being

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designated by OFCOM as a description of networks, services or facilities for

which notification under this section is required.

     (3)    A person who has given a notification for the purposes of subsection (1) must,

before—

           (a)           providing or making available the notified network, service or facility

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with any significant differences, or

           (b)           ceasing to provide it or to make it available,

            give a notification to OFCOM of the differences or (as the case may be) of his

intention to cease to provide the network or service or to make the facility

available.

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

    30

 

     (4)    A notification for the purposes of this section must—

           (a)           be sent to OFCOM in such manner as OFCOM may require; and

           (b)           contain all such information as OFCOM may require.

     (5)    The only information OFCOM may require a notification to contain is—

           (a)           a declaration of the relevant proposal of the person giving the

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notification;

           (b)           the time when it is intended that effect should be given to the relevant

proposal;

           (c)           particulars identifying the person giving the notification;

           (d)           particulars identifying one or more persons with addresses in the

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United Kingdom who, for the purposes of matters relating to the

notified network, service or facility, are authorised to accept service at

an address in the United Kingdom on behalf of the person giving the

notification;

           (e)           particulars identifying one or more persons who may be contacted if

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there is an emergency that is caused by or affects the provision of the

notified network, service or facility;

           (f)           addresses and other particulars necessary for effecting service on or

contacting each of the persons mentioned in paragraphs (c) to (e).

     (6)    The declaration of the relevant proposal that may be required under subsection

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(5) is whichever of the following is appropriate in the case of the person giving

the notification—

           (a)           a declaration of his proposal to provide the network or service

described in the notification or to make available the facility so

described;

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           (b)           a declaration of his proposal to make the modifications that are so

described of the network, service or facility specified in the notification;

or

           (c)           a declaration of his proposal to cease to provide the network or service

so specified or to cease to make available the facility so specified.

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     (7)    Requirements imposed under subsection (4) are not to require a notification by

a person to contain particulars falling within subsection (5)(d) in a case in

which—

           (a)           that person is resident in a member State or has a place of business in a

member State;

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           (b)           the notification contains a statement under subsection (8);

           (c)           the notification sets out an address in a member State at which service

will be accepted by the person who, in accordance with that statement,

is authorised to accept it; and

           (d)           OFCOM are satisfied that adequate arrangements exist for effecting

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service on that person at that address.

     (8)    That statement is one which—

           (a)           declares that the person authorised, for the purposes of matters relating

to the notified network, service or facilities, to accept service on behalf

of the person giving the notification is that person himself; or

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           (b)           identifies another person who is resident in a member State, or has a

place of business in such State, as the person so authorised.

     (9)    The reference in subsection (3) to providing or making available a notified

network, service or facility with significant differences is a reference to

 

 

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

    31

 

continuing to provide it, or to make it available, after a change in whatever

falling within subsection (5)(a) to (f) was last notified to OFCOM under this

section.

     (10)   References in this section to accepting service at an address are references—

           (a)           to accepting service of documents or process at that address; or

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           (b)           otherwise to receiving notifications at that address;

            and the reference in subsection (7) to effecting service at an address is to be

construed accordingly.

     (11)   Where a description of electronic communications network, electronic

communications service or associated facility is designated for the purposes of

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this section at a time when a network, service or facility of that description is

already being provided or made available by a person—

           (a)           that person’s obligation under this section to give a notification before

beginning to provide or make available that network, service or facility

shall have effect as an obligation to give a notification within such

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period after the coming into force of the designation as may be

specified in the notice in which the designation is contained; and

           (b)           that notification is to be one stating that that person is already

providing the network or service, or making the facility available

(rather than that it is his intention to do so).

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     (12)   Subsection (11) has effect subject to any transitional provision—

           (a)           which is contained in the notification setting out the designation; and

           (b)           treats a person as having given the notification required by that

subsection.

 32    Designations and requirements for the purposes of s. 31

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     (1)    Before—

           (a)           making or withdrawing a designation for the purposes of section 31, or

           (b)           imposing or modifying a requirement under subsection (4) of that

section,

            OFCOM must consult such of the persons who, in their opinion, are likely to

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be affected by it as they think fit.

     (2)    Before making or withdrawing a designation for the purposes of section 31

OFCOM must also consult the Secretary of State.

     (3)    The way in which a designation for the purposes of section 31 or a requirement

under subsection (4) of that section—

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           (a)           is to be made or imposed, or

           (b)           may be withdrawn or modified,

            is by a notice published in such manner as OFCOM consider appropriate for

bringing the designation, requirement, withdrawal or modification to the

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

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     (4)    A designation for the purposes of section 31 may be framed by reference to any

such description of networks, services or facilities, or such other factors, as

OFCOM think fit.

     (5)    Requirements imposed under section 31(4) may make different provision for

different cases.

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

    32

 

 33    Notification of contraventions of s. 31

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

a person has contravened section 31, they may give him a notification under

this section.

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

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           (a)           sets out the determination made by OFCOM; and

           (b)           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 determination; and

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           (b)           providing OFCOM with the information which the notified person

should have provided for the purposes of section 31 but has not.

     (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 of section 31;

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and

           (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 section 31, OFCOM may give a further notification in

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respect of the same contravention if, and only if—

           (a)           the subsequent notification is in respect of so much of a period during

which the contravention in question was continuing as falls after a

period to which the earlier notification relates; or

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

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been imposed by reference to 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

the same contravention or in respect of another contravention of section

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31; and

 

 

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

    33

 

           (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 34(2) or 35(2) that the contravention to which the previous

notification related did occur.

 34    Enforcement notification for contravention of s. 31

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     (1)    This section applies where—

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

section 33;

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

representations about the notified determination; and

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           (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—

           (a)           that he has, in one or more of the respects notified, been in

contravention of section 31; and

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           (b)           that he has not, during the period allowed under section 33, provided

OFCOM with all the information which he should have provided to

them to remedy the contravention.

     (3)    An enforcement notification is a notification which imposes a requirement on

the notified provider to take all such steps for providing OFCOM with that

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information as may be specified in the notification.

     (4)    A decision of OFCOM to give an enforcement notification to a person—

           (a)           must be notified to that person, together with the reasons for the

decision, no later than a week after the day on which it is taken; and

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

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notification.

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

given to comply with it.

     (6)    That duty shall be enforceable in civil proceedings by OFCOM—

           (a)           for an injunction;

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           (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.

 35    Penalties for contravention of s. 31

     (1)    This section applies (in addition to section 34) where—

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

section 33;

           (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.

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     (2)    OFCOM may impose a penalty on the notified provider if he—

           (a)           has, in one or more of the respects notified, been in contravention of

section 31; and

 

 

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

    34

 

           (b)           has not, during the period allowed under section 33, provided OFCOM

with all the information which he should have provided to remedy the

contravention.

     (3)    Where a notification under section 33 relates to more than one contravention,

a separate penalty may be imposed in respect of each contravention.

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     (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.

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

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

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given under section 34 in respect of the notified contravention.

     (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

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

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

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

           (b)           any steps taken by him towards complying with his obligations under

section 31.

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

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           (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.

     (9)    A penalty imposed under this section—

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           (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

different maximum penalty for the maximum penalty for the time being

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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.

Administrative charges imposed on providers

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 36    Fixing of charges

     (1)    A person who, at any time in a charging year, is a person to whom this section

applies shall—

           (a)           in respect of the network, service or facility provided or made available

by him,

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           (b)           in respect of the application to him of a universal service condition

relating to matters mentioned in section 64(3),

           (c)           in respect of the application to him of an SMP apparatus condition, or

 

 

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

    35

 

           (d)           in respect of the application of the electronic communications code in

his case,

            pay to OFCOM the administrative charge (if any) that is fixed by them for the

case that is applicable to him.

     (2)    This section applies to a person at a time if, at that time he is—

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           (a)           providing an electronic communications network of a description

which is, at that time, designated for the purposes of this section;

           (b)           providing an electronic communications service of a description which

is, at that time, so designated;

           (c)           making available an associated facility of a description which is, at that

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time, so designated;

           (d)           a person who without being a communications provider is designated

in accordance with regulations under section 64;

           (e)           a supplier of apparatus to whom an SMP apparatus condition applies;

or

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           (f)           a person in whose case the electronic communications code applies by

virtue of a direction given under section 104 otherwise than for the

purposes of the provision by him of an electronic communications

network of a designated description.

     (3)    OFCOM are not to fix the administrative charge for a charging year unless—

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           (a)           at the time the charge is fixed there is in force a statement by OFCOM

of the principles that OFCOM are proposing to apply in fixing charges

under this section for that year; and

           (b)           the charge is fixed in accordance with those charging principles.

     (4)    Those principles must be such as appear to OFCOM to be likely to secure, on

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the basis of such estimates of the likely costs as it is practicable for them to

make—

           (a)           that, on a year by year basis, the aggregate amount of the charges

payable to OFCOM is sufficient to meet, but does not exceed, the

annual cost to OFCOM of carrying out the functions mentioned in

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subsection (5);

           (b)           that the cost of carrying out those functions is met by the imposition of

charges that are objectively justifiable and proportionate to the matters

in respect of which they are imposed;

           (c)           that the relationship between meeting the cost of carrying out those

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functions and the amounts of the charges is transparent;

           (d)           that the charges fixed for persons who are liable to charges by reason

only of being persons to whom SMP apparatus conditions apply are

referable only to things done in, or in connection with, the setting,

modification or enforcement of SMP apparatus conditions or the

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carrying out of the functions mentioned in subsection (6)(l); and

           (e)           that the charges fixed for persons who are liable to charges by reason

only of being persons falling within subsection (2)(f), are referable only

to costs incurred in, or in connection with, the carrying out of the

functions mentioned in subsection (6)(g) and (l).

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     (5)    Those functions are—

           (a)           the relevant Chapter 1 functions;

           (b)           the carrying out for a Chapter 1 purpose of any research by OFCOM or

the Consumer Panel into any of the matters mentioned in section

14(1)(c) to (f);

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