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Communications Bill


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

    95

 

           (c)           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.

     (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—

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

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

           (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

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of conditions set under section 43 to the extent that—

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

section 92, OFCOM have determined for the purposes of section 93(2)

or 94(2) that such a contravention did occur;

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

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determination, one or more further notifications have been given to

that person in respect of contraventions of a condition set under section

43; and

           (c)           the previous notification and the subsequent ones all relate to

contraventions of the same condition (whether the same contravention

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or different contraventions).

 

 

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

    96

 

 99    Suspending apparatus supply for contraventions of conditions

     (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 any SMP

5

apparatus conditions;

           (b)           that an attempt, by the imposition of penalties or the giving of

enforcement notifications under section 93 or both, to secure

compliance with the contravened conditions has failed; and

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

10

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

     (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

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

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

20

to the person to whom it is given.

     (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

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direction or with the postponement of its effect, may impose such

conditions on the contravening supplier as appear to OFCOM to be

appropriate for the purpose of protecting that supplier’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

30

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.

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

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

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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

           (c)           to such extent and in relation to such apparatus or descriptions of

apparatus as they may determine.

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     (7)    For the purposes of this section there are repeated contraventions by a person

of SMP apparatus conditions to the extent that—

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

92, OFCOM have determined for the purposes of section 93(2) or 94(2)

that such a contravention did occur;

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           (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

 

 

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

    97

 

that person in respect of contraventions of an SMP apparatus condition;

and

           (c)           the previous notification and the subsequent ones all relate to

contraventions of the same condition (whether the same contravention

or different contraventions).

5

 100   Procedure for directions under ss. 98 and 99

     (1)    Except in an urgent case, OFCOM are not to give a direction under section 98

or 99 unless they have—

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

proposed direction and of the conditions (if any) which they are

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proposing to impose by that direction;

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

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

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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

giving of the notification.

     (3)    As soon as practicable after giving a direction under section 98 or 99 in an

urgent case, OFCOM must, provide the contravening provider or contravening

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supplier with an opportunity of—

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

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—

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

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

direction under section 98 or 99, for the making and consideration of

representations; and

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

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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

security;

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           (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

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

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electronic communications networks, electronic communications

services or associated facilities.

     (6)    In this section—

                    “contravening provider” has the same meaning as in section 98; and

                     “contravening supplier” has the same meaning as in section 99.

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

    98

 

 101   Enforcement of directions under ss. 96, 98 and 99

     (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—

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

5

96(4) or 98; 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—

           (a)           while prohibited from doing so by a direction under section 99; or

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           (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;

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

15

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

a direction under section 96, 98 or 99 as they apply in relation to a

contravention of conditions set under section 43.

 102   Civil liability for breach of conditions or enforcement notification

     (1)    The obligation of a person to comply with—

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           (a)           the conditions set under section 43 which apply to him,

           (b)           requirements imposed on him by an enforcement notification under

section 93, and

           (c)           the conditions imposed by a direction under section 96 or 98,

            shall be a duty owed to every person who may be affected by a contravention

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of the condition or requirement.

     (2)    Where a duty is owed by virtue of this section to a person—

           (a)           a breach of the duty that causes that person to sustain loss or damage,

and

           (b)           an act which—

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                  (i)                 by inducing a breach of the duty or interfering with its

performance, causes that person to sustain loss or damage, and

                  (ii)                is done wholly or partly for achieving that result,

            shall be actionable at the suit or instance of that person.

     (3)    In proceedings brought against a person by virtue of subsection (2)(a) it shall

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be a defence for that person to show that he took all reasonable steps and

exercised all due diligence to avoid contravening the condition or requirement

in question.

     (4)           The consent of OFCOM is required for the bringing of proceedings by virtue of

subsection (1)(a).

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     (5)    Where OFCOM give a consent for the purposes of subsection (4) subject to

conditions relating to the conduct of the proceedings, the proceedings are not

to be carried on by that person except in compliance with those conditions.

 

 

 
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Revised 3 July 2003