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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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OFCOM’s duty to intervene on network access issues

 103   Consideration and determination of network access questions

     (1)    This section applies where—

           (a)           it appears to OFCOM that a network access question has arisen and

needs to be determined; and

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           (b)           they consider that, for the purpose of determining that question, it

would be appropriate for them to exercise their powers under this

Chapter to set, modify or revoke conditions falling within subsection

(2).

     (2)    Conditions falling within this subsection are—

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           (a)           access-related conditions authorised by section 71(2) or (4); and

           (b)           SMP services conditions authorised by section 85.

     (3)    Before considering whether, for the purpose of determining the question that

has arisen, to set, modify or revoke conditions falling within subsection (2),

OFCOM must publish a notification of their proposal to consider that matter.

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     (4)    If, after considering that matter, OFCOM decide not to exercise their powers to

set, modify or revoke conditions falling within subsection (2), they must

publish a notification of their decision.

     (5)    A notification under this section must be published in the manner that OFCOM

consider appropriate for bringing it to the attention of the persons who, in

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OFCOM’s opinion, would be likely to be affected by action taken for

determining the network access question that appears to them to have arisen.

     (6)    In this section “network access question” means a question relating to network

access or the terms or conditions on which it is or may be provided in a

particular case.

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Electronic communications code

 104   Application of the electronic communications code

     (1)    In this Chapter “the electronic communications code” means the code set out

in Schedule 2 to the Telecommunications Act 1984 (c. 12).

     (2)    Schedule 3 (which amends Schedule 2 to the Telecommunications Act 1984 for

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the purpose of translating the telecommunications code into a code applicable

in the context of the new regulatory regime established by this Act) shall have

effect.

     (3)    The electronic communications code shall have effect—

           (a)           in the case of a person to whom it is applied by a direction given by

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OFCOM; and

           (b)           in the case of the Secretary of State or any Northern Ireland department

where the Secretary of State or that department is providing or

proposing to provide an electronic communications network.

     (4)    The only purposes for which the electronic communications code may be

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applied in a person’s case by a direction under this section are—

           (a)           the purposes of the provision by him of an electronic communications

network; or

 

 

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

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           (b)           the purposes of the provision by him of a system of conduits which he

is making available, or proposing to make available, for use by

providers of electronic communications networks for the purposes of

the provision by them of their networks.

     (5)    A direction applying the electronic communications code in any person’s case

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may provide for that code to have effect in his case—

           (a)           in relation only to such places or localities as may be specified or

described in the direction;

           (b)           for the purposes only of the provision of such electronic

communications network, or part of an electronic communications

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network, as may be so specified or described; or

           (c)           for the purposes only of the provision of such conduit system, or part

of a conduit system, as may be so specified or described.

     (6)    The Secretary of State may by order provide for the electronic communications

code to have effect for all purposes with a different amount substituted for the

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amount for the time being specified in paragraph 16(3) of the code (minimum

compensation).

     (7)    In this section “conduit” includes a tunnel, subway, tube or pipe.

 105   Procedure for directions applying code

     (1)    OFCOM are not to give a direction applying the electronic communications

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code in any person’s case except on an application made for the purpose by

that person.

     (2)    If OFCOM publish a notification setting out their requirements with respect

to—

           (a)           the content of an application for a direction applying the electronic

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communications code, and

           (b)           the manner in which such an application is to be made,

            such an application must be made in accordance with the requirements for the

time being in force.

     (3)    OFCOM may—

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           (a)           from time to time review the requirements for the time being in force

for the purposes of subsection (2); and

           (b)           on any such review, modify them in such manner as they think fit by

giving a notification of the revised requirements.

     (4)    In considering whether to apply the electronic communications code in any

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person’s case, OFCOM must have regard, in particular, to each of the following

matters—

           (a)           the benefit to the public of the electronic communications network or

conduit system by reference to which the code is to be applied to that

person;

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           (b)           the practicability of the provision of that network or system without the

application of the code;

           (c)           the need to encourage the sharing of the use of electronic

communications apparatus;

           (d)           whether the person in whose case it is proposed to apply the code will

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be able to meet liabilities arising as a consequence of—

                  (i)                 the application of the code in his case; and

 

 

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

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                  (ii)                any conduct of his in relation to the matters with which the code

deals.

     (5)    For the purposes of subsections (6) and (7) of section 3 OFCOM’s duty under

subsection (4) ranks equally with their duties under that section.

     (6)    Before giving a direction under section 104, OFCOM must—

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           (a)           publish a notification of their proposal to give the direction; and

           (b)           consider any representations about that proposal that are made to them

within the period specified in the notification.

     (7)    A notification for the purposes of subsection (6)(a) must contain the

following—

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           (a)           a statement of OFCOM’s proposal;

           (b)           a statement of their reasons for that proposal;

           (c)           a statement of the period within which representations may be made to

them about the proposal.

     (8)    The statement of OFCOM’s proposal must—

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           (a)           contain a statement that they propose to apply the code in the case of

the person in question;

           (b)           set out any proposals of theirs to impose terms under section 104(5);

            but this subsection is subject to sections 111(7) and 113(5).

     (9)    The period specified as the period within which representations may be made

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must end no less than one month after the day of the publication of the

notification.

     (10)   The publication by OFCOM of a notification for any of the purposes of this

section must be a publication in such manner as OFCOM consider appropriate

for bringing the notification to the attention of the persons who, in their

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opinion, are likely to be affected by it.

 106   Register of persons in whose case code applies

     (1)    It shall be the duty of OFCOM to establish and maintain a register of persons

in whose case the electronic communications code applies by virtue of a

direction under section 104.

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     (2)    OFCOM must record in the register every direction given under that section.

     (3)    Information recorded in the register must be recorded in such manner as

OFCOM consider appropriate.

     (4)    It shall be the duty of OFCOM to publish a notification setting out—

           (a)           the times at which the register is for the time being available for public

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inspection; and

           (b)           the fees that must be paid for, or in connection with, an inspection of

the register.

     (5)    The publication of a notification under subsection (4) must be a publication in

such manner as OFCOM consider appropriate for bringing it to the attention

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

     (6)    OFCOM must make the register available for public inspection—

           (a)           during such hours, and

           (b)           on payment of such fees,

 

 

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Chapter 1 — Electronic communications networks and services

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            as are set out in the notification for the time being in force under subsection (4).

 107   Restrictions and conditions subject to which code applies

     (1)    Where the electronic communications code is applied in any person’s case by

a direction given by OFCOM, that code is to have effect in that person’s case

subject to such restrictions and conditions as may be contained in regulations

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made by the Secretary of State.

     (2)    In exercising his power to make regulations under this section it shall be the

duty of the Secretary of State to have regard to each of the following—

           (a)           the duties imposed on OFCOM by sections 3 and 4;

           (b)           the need to protect the environment and, in particular, to conserve the

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natural beauty and amenity of the countryside;

           (c)           the need to ensure that highways are not damaged or obstructed, and

traffic not interfered with, to any greater extent than is reasonably

necessary;

           (d)           the need to encourage the sharing of the use of electronic

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communications apparatus;

           (e)           the need to secure that a person in whose case the code is applied will

be able to meet liabilities arising as a consequence of—

                  (i)                 the application of the code in his case; and

                  (ii)                any conduct of his in relation to the matters with which the code

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deals.

     (3)    The power of the Secretary of State to provide by regulations for the

restrictions and conditions subject to which the electronic communications

code has effect includes power to provide for restrictions and conditions which

are framed by reference to any one or more of the following—

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           (a)           the making of a determination in accordance with the regulations by a

person specified in the regulations;

           (b)           the giving of an approval or consent by a person so specified; or

           (c)           the opinion of any person.

     (4)    Before making any regulations under this section, the Secretary of State must

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consult—

           (a)           OFCOM; and

           (b)           such other persons as he considers appropriate.

 108   Enforcement of restrictions and conditions

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

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a person in whose case the electronic communications code applies is

contravening, or has contravened, a requirement imposed by virtue of any

restrictions or conditions under section 107, 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;

           (b)           specifies the requirement and the contravention in respect of which that

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).

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

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     (3)    Those things are—

           (a)           making representations about the matters notified;

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

contravention; and

           (c)           remedying the consequences of notified contraventions.

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     (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.

     (5)    OFCOM may, if they think fit, allow a longer period for doing those things

either—

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           (a)           by specifying a longer period in the notification; or

           (b)           by subsequently, on one or more occasions, extending the specified

period.

     (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.

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     (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;

           (b)           they have determined that, in those circumstances, a shorter period

would be appropriate; and

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           (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

           (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.

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     (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—

           (a)           the contravention is one occurring after the time of the giving of the

earlier notification;

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           (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

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

been imposed in respect of the notified contravention.

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     (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 the

same requirement; and

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           (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 109(2) or 110(2) that the contravention to which the previous

notification related did occur.

 109   Enforcement notification for contravention of code restrictions

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     (1)    This section applies where—

 

 

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

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

section 108;

           (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 give the notified provider an enforcement notification if they are

satisfied—

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

notified, of a requirement specified in the notification under section

108; and

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           (b)           that he has not, during the period allowed under section 108, taken all

such steps as they consider appropriate—

                  (i)                 for complying with that requirement; and

                  (ii)                for remedying the consequences of the notified contravention of

that requirement.

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     (3)    An enforcement notification is a notification which imposes one or both of the

following requirements on the notified provider—

           (a)           a requirement to take such steps for complying with the notified

requirement as may be specified in the notification;

           (b)           a requirement to take such steps for remedying the consequences of the

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notified contravention as may be so specified.

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

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

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

and

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

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—

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           (a)           for an injunction;

           (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.

 110   Penalties for contravention of code restrictions

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     (1)    This section applies (in addition to section 109) where—

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

section 108;

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

representations about the matters notified; and

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           (c)           the period allowed for the making of the representations has expired.

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

           (a)           has been in contravention, in any of the respects notified, of a

requirement specified in the notification under section 108; and

           (b)           has not, during the period allowed under that section, taken all such

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steps as they consider appropriate—

 

 

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

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                  (i)                 for complying with the notified requirement; and

                  (ii)                for remedying the consequences of the notified contravention of

that requirement.

     (3)    Where a notification under section 108 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 under this section 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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     (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.

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

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

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

contraventions of which have been notified to him under section 108;

and

           (c)           any steps taken by him for remedying the consequences of those

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contraventions.

     (8)    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.

     (9)    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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     (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

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

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resolution of each House.

 111   Suspension of application of code

     (1)    OFCOM may suspend the application of the electronic communications code

in any person’s case if they are satisfied—

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

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requirements to pay administrative charges fixed under section 36

(whether in respect of the whole or a part of the charges);

           (b)           that the bringing of proceedings for the recovery of the amounts

outstanding has failed to secure complete compliance by the

 

 

 
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