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Communications Act 2003

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Part 2U.K.Networks, services and the radio spectrum

Chapter 1U.K.Electronic communications networks and services

PreliminaryU.K.

32Meaning of electronic communications networks and servicesU.K.

(1)In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; F1...

(iii)software and stored data[F2; and

(iv)(except for the purposes of sections 125 to 127) other resources, including network elements which are not active.]

[F3(2)In this Act “electronic communications service” means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service.

(2A)Those types of service are—

(a)an internet access service;

(b)a number-based interpersonal communications service; and

(c)any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting.

(2B)In subsection (2A)(a) “internet access service” means a service that provides access to the internet and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used.]

[F4(3)In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a)making the provision of that network or service possible;

(b)making possible the provision of other services provided by means of that network or service; or

(c)supporting the provision of such other services.]

(4)In this Act—

(a)references to the provision of an electronic communications network include references to its establishment, maintenance or operation;

(b)references, where one or more persons are employed or engaged to provide the network or service under the direction or control of another person, to the person by whom an electronic communications network or electronic communications service is provided are confined to references to that other person; and

(c)references, where one or more persons are employed or engaged to make facilities available under the direction or control of another person, to the person by whom any associated facilities are made available are confined to references to that other person.

(5)Paragraphs (a) and (b) of subsection (4) apply in relation to references in subsection (1) to the provision of a transmission system as they apply in relation to references in this Act to the provision of an electronic communications network.

(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—

(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 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—

(a)have 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

(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.

Textual Amendments

Commencement Information

I1S. 32 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I2S. 32 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F532AMeaning of number-based interpersonal communications serviceU.K.

(1)In this Chapter “number-based interpersonal communications service” means an interpersonal communications service which—

(a)connects with publicly assigned numbering resources, namely a number or numbers in a national or international numbering plan, or

(b)enables communication with a number or numbers in a national or international numbering plan.

(2)In subsection (1), “interpersonal communications service” means a service which enables direct interpersonal and interactive exchange of information by means of electronic communications networks between a finite number of persons, where the persons initiating or participating in the communication determine its recipient.]

Textual Amendments

Notification by providersU.K.

33Advance notification to OFCOMU.K.

(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 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 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 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.

(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 notification[F6, including a short description of the network, service or facility];

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

(c)particulars identifying the person giving the notification[F7, including the person’s legal status and, in the case of a body corporate, details of its incorporation];

[F8(ca)the address of the person’s main establishment and, if that is outside the United Kingdom, of any secondary establishment in the United Kingdom;

(cb)the person’s website address, where applicable, associated with the provision of electronic communications networks or services;]

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

F9(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) [F10and (d)].

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

(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.

F11(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The reference in subsection (3) to providing or making available a notified network, service or facility with significant differences is a reference to 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

(b)otherwise to receiving notifications at that address;

F13....

(11)Where a description of electronic communications network, electronic communications service or associated facility is designated for the purposes of 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 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).

(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.

Textual Amendments

Commencement Information

I3S. 33 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I4S. 33 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

34Designations and requirements for the purposes of s. 33U.K.

(1)Before—

(a)making or withdrawing a designation for the purposes of section 33, 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 be affected by it as they think fit.

(2)Before making or withdrawing a designation for the purposes of section 33 OFCOM must also consult the Secretary of State.

(3)The way in which a designation for the purposes of section 33 or a requirement under subsection (4) of that section—

(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.

(4)A designation for the purposes of section 33 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 33(4) may make different provision for different cases.

Commencement Information

I5S. 34 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I6S. 34 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

35Notification of contraventions of s. 33U.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, they may give him a notification under this section.

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

(a)sets out the determination made by OFCOM; F14...

[F15(b)specifies the contravention in respect of which the determination has been made;

(c)specifies the period during which the person notified has an opportunity to make representations;

(d)specifies information to be provided by the person to OFCOM; and

(e)specifies any penalty which OFCOM are minded to impose in accordance with section 35A.]

F16(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)A notification under this section—

(a)may be given in respect of more than one contravention of section 33; 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 33, OFCOM may give a further notification in 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 been imposed by reference to the notified contravention.

F17(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I7S. 35 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I8S. 35 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F1835A.Penalties for contravention of section 33U.K.

(1)This section applies where a person is given a notification under section 35 which specifies a proposed penalty.

(2)Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3)Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4)But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a)the giving of a confirmation decision under section 36(4)(c) which requires immediate action; or

(b)the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5)The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—

(a)appropriate; and

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

(6)The amount of any other penalty specified in a notification under section 35 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)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).

(8)No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

36 [F19Confirmation decision] for contravention of s. 33U.K.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 35;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the notified determination; and

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

[F20(2)OFCOM may—

(a)give the notified provider a decision (a “confirmation decision”) confirming the imposition of requirements in accordance with the notification under section 35; or

(b)inform the notified provider that they are satisfied with the notified provider’s representations and that no further action will be taken.

(3)OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of section 33.]

[F21(4)A confirmation decision—

(a)must be given to the person without delay;

(b)must include reasons for the decision;

(c)may require immediate action by the person to comply with requirements imposed by virtue of section 35(2)(d), or may specify a period within which the person must comply with those requirements; and

(d)may require the person to pay—

(i)the penalty specified in the notification under section 35, or

(ii)such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.]

(5)It shall be the duty of a person to whom [F22a confirmation decision] has been given to comply with [F23any requirement imposed by it] .

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

(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.

[F24(7)A penalty imposed by a confirmation decision—

(a)must be paid to OFCOM; and

(b)if not paid within the period specified by them, is to be recoverable by them accordingly.]

Textual Amendments

Commencement Information

I9S. 36 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I10S. 36 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F2537Penalties for contravention of s. 33U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I11S. 37 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I12S. 37 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Administrative charges imposed on providersU.K.

38Fixing of chargesU.K.

(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,

(b)in respect of the application to him of a universal service condition relating to matters mentioned in section 66(3),

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

(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—

(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 time, so designated;

(d)a person who without being a communications provider is designated in accordance with regulations under section 66;

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

(f)a person in whose case the electronic communications code applies by virtue of a direction given under section 106 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—

(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 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 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 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 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).

(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);

(c)the publication under section 26 of any information or advice that it appears to OFCOM to be appropriate to make available to the persons mentioned in subsection (2)(a) to (c) of that section; and

(d)the function of taking any steps that OFCOM consider it necessary to take—

(i)in preparation for the carrying out of any of the functions mentioned in paragraphs (a) to (c) of this subsection; or

(ii)for the purpose of facilitating the carrying out of those functions or otherwise in connection with carrying them out.

(6)The relevant Chapter 1 functions are—

(a)OFCOM’s functions under sections 33 to 37 and 44;

(b)the setting, modification and enforcement of conditions under section 45;

(c)the supervision, as respects the requirements of sections 33 to 37 and of any such conditions, of communications providers and of persons who make associated facilities available;

(d)the monitoring of compliance with those requirements and with any such conditions;

(e)the functions conferred on OFCOM by or under section 55;

[F26(ea)their functions under sections 93A to 93D;

(eb)the monitoring of compliance with commitments that are made binding by a commitments decision;

F27(ec). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F28(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)their functions under sections 106 to 119;

(h)their functions under sections 185 to 191;

(i)securing international co-operation in relation to the regulation of electronic communications networks, electronic communications services and associated facilities;

(j)securing the harmonisation and standardisation of the regulation of electronic communications networks, electronic communications services and associated facilities;

(k)market analysis and any monitoring of the controls operating in the markets for electronic communications networks, electronic communications services and associated facilities;

(l)OFCOM’s functions under this section and sections 39 to 43.

(7)A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is the purpose of ascertaining the effectiveness of one or more of the following—

(a)the regulation of the provision of electronic communications networks or electronic communications services;

(b)the regulation of the making available of associated facilities;

(c)the mechanisms in place for the handling, by communications providers and by persons making such facilities available, of complaints made to them by consumers in markets for such services or facilities;

(d)the mechanisms in place for resolving disputes between such consumers and communications providers or persons who make such facilities available.

(8)OFCOM’s power to fix charges for a particular case includes—

(a)power to provide that the charges in that case are to be equal to the amounts produced by a computation made in the manner, and by reference to the factors, specified by them;

(b)power to provide for different charges to be imposed in that case on different descriptions of persons; and

(c)power to provide for particular descriptions of persons falling within subsection (2)(d) to (f) to be excluded from the liability to pay charges in that case.

(9)As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement setting out, in respect of that year—

(a)the aggregate amounts of the administrative charges for that year that have been received by OFCOM;

(b)the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and

(c)the cost to OFCOM of carrying out the functions mentioned in subsection (5).

(10)Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (9) shall be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (4)(a) in relation to the following year.

(11)Section 34 applies in relation to the making and withdrawal of a designation for the purposes of this section as it applies to the making and withdrawal of a designation for the purposes of section 33.

[F29(11A)For the purposes of this section, the cost to OFCOM of carrying out the functions mentioned in subsection (5) does not include the cost to OFCOM of doing anything for which they charge a fee under section 28A.]

(12)In this section “charging year” means—

(a)the period beginning with the commencement of this section and ending with the next 31st March; or

(b)any subsequent period of twelve months beginning with 1st April.

Textual Amendments

Commencement Information

I13S. 38 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I14S. 38 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

39Supplemental provision about fixing chargesU.K.

(1)OFCOM’s power to fix a charge under section 38—

(a)is to be exercisable only by the publication or giving of such notification as they consider appropriate for bringing the charge to the attention of the persons who, in their opinion, are likely to be affected by it; and

(b)includes power, by setting it out in that notification, to fix the time at which the charge is to become due to OFCOM.

(2)A charge fixed under section 38 for a charging year may be fixed in terms providing for a deduction from the charge on a proportionate basis to be made for a part of the year during which—

(a)the network, service or facility in respect of which it is fixed is not provided or made available by the person otherwise liable to the charge;

(b)the universal service condition in respect of which it is fixed does not apply in that person’s case;

(c)the SMP apparatus condition in respect of which it is fixed does not apply in that person’s case; or

(d)the electronic communications code does not apply in that person’s case.

(3)Such a charge may also be fixed (subject to subsection (4)) so that it is referable, in whole or in part—

(a)to the provision or making available of a network, service or facility during a part of the year falling before the fixing of the charge;

(b)to the application of a universal service condition to a person for a part of the year so falling;

(c)to a person’s being a person to whom an SMP apparatus condition applies for a part of the year so falling; or

(d)to the application of the electronic communications code in a person’s case during a part of the year so falling.

(4)A charge may be fixed so as to be referable to a time before it is fixed to the extent only that both—

(a)the imposition of the charge, and

(b)the amount of the charge,

are required by, and consistent with, the statement of charging principles in force at the beginning of the charging year.

(5)Before making or revising a statement of charging principles, OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.

(6)The way in which a statement of charging principles must be made or may be revised is by the publication of the statement or revised statement in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(7)References in this section to a statement of charging principles are references to a statement by OFCOM of the principles that they are proposing to apply in fixing charges under section 38 for a charging year.

(8)In this section “charging year” has the same meaning as in section 38.

Commencement Information

I15S. 39 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I16S. 39 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

40Notification of non-payment of chargesU.K.

(1)OFCOM are not entitled to bring proceedings for the recovery from a person of an administrative charge fixed for any year under section 38 unless they have given that person a notification under this section with respect to the amount they are seeking to recover.

(2)Where OFCOM determine that there are reasonable grounds for believing that a person is in contravention (whether in respect of the whole or a part of a charge) of a requirement to pay such an administrative charge, they may give him a notification under this section.

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

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

(b)specifies the period during which the person notified has an opportunity of [F30making representations about the notified determination] .

F31(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)A notification under this section—

(a)may be given in respect of contraventions of more than one requirement to pay an administrative charge; 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.

(10)Where a notification under this section has been given to a person in respect of an amount outstanding, OFCOM may give a further notification in respect of the whole or a part of that amount if, and only if—

(a)the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates; or

(b)the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.

F32(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I17S. 40 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I18S. 40 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

41Penalties for non-payment of chargesU.K.

(1)This section applies where—

(a)a person (“the notified charge payer”) has been given a notification under section 40;

(b)OFCOM have allowed the notified charge payer an opportunity of making representations about the notified determination; and

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

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

(a)has, in one or more of the respects notified, been in contravention of a requirement to pay an administrative charge fixed under section 38; F33...

F33(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where a notification under section 40 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.

(5)The amount of a penalty imposed under this section is to be such amount, not exceeding twice the amount of the charge fixed for the relevant year, as OFCOM determine to be—

(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—

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

(b)any steps taken by him towards paying the amounts that he was notified under section 40 were outstanding.

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

(a)[F34without delay,] 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.

(8)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.

(9)In this section “the relevant year”, in relation to a contravention of a requirement to pay the whole or a part of the administrative charge fixed for any year, means that year.

(10)The provisions of this section do not affect OFCOM’s power, apart from those provisions, to bring proceedings (whether before or after the imposition of a penalty under this section) for the recovery of the whole or part of an amount due to them under section 38(1).

Textual Amendments

Commencement Information

I19S. 41 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I20S. 41 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

42Suspending service provision for non-paymentU.K.

(1)OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

(a)that he is or has been in [F35serious or repeated] contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);

(b)that the contraventions are not contraventions relating only to charges in respect of the application to the contravening provider of SMP apparatus conditions;

[F36(ba)that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;]

(c)that [F37, in the case of a repeated contravention,] the bringing of proceedings for the recovery of the amounts outstanding has failed to secure complete compliance by the contravening provider with the requirements to pay the charges fixed in his case, or has no reasonable prospect of securing such compliance;

(d)that [F38, in the case of a repeated contravention,] an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

[F39(e)that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.]

(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 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—

(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—

(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 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

(b)in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(6)OFCOM are not to give a direction under this section unless they have—

(a)notified the contravening provider 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 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 to take advantage of that opportunity.

[F40(7)That period is such reasonable period as OFCOM may specify, beginning with the day of the giving of the notification.]

(8)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

(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.

(9)For the purposes of this section there are repeated contraventions by a person of requirements to pay administrative charges to the extent that—

(a)in the case of a previous notification given to that person under section 40, OFCOM have determined for the purposes of section 41(2) that such a contravention did occur; and

(b)in the period of [F4124] months following the day of the making of that determination, one or more further notifications have been given to that person in respect of the same or different failures to pay administrative charges.

Textual Amendments

Commencement Information

I21S. 42 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I22S. 42 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

43Enforcement of directions under s. 42U.K.

(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 42; or

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

(2)A person guilty of an offence under subsection (1) shall be liable—

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

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

(3)The duty of a person to comply with a condition of a direction under section 42 shall be a duty owed to every person who may be affected by a contravention of the condition.

(4)Where a duty is owed by virtue of subsection (3) to a person—

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

(b)an act which—

(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.

(5)In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.

(6)Sections [F4296A] to 99 apply in relation to a contravention of conditions imposed by a direction under section 42 as they apply in relation to a contravention of conditions set under section 45.

Textual Amendments

Commencement Information

I23S. 43 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I24S. 43 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Register of providers required to notify or to pay chargesU.K.

44Duty of OFCOM to keep publicly accessible registerU.K.

(1)It shall be the duty of OFCOM to establish and maintain a register for the purposes of section 33.

(2)OFCOM must record in the register—

(a)every designation by them for the purposes of section 33 or 38;

(b)every withdrawal by them of such a designation;

(c)every notification given to them under section 33; and

(d)every notification treated as given to them under that section by a transitional provision made under subsection (12) of that section.

(3)Information recorded in the register must be so 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 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 in such manner as OFCOM consider appropriate for bringing it to the attention 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,

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

Commencement Information

I25S. 44 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I26S. 44 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Conditions of entitlement to provide network or service etc.U.K.

45Power of OFCOM to set conditionsU.K.

(1)OFCOM shall have the power to set conditions under this section binding the persons to whom they are applied in accordance with section 46.

(2)A condition set by OFCOM under this section must be either—

(a)a general condition; or

(b)a condition of one of the following descriptions—

(i)a universal service condition;

[F43(ia)a social tariff condition;]

(ii)an access-related condition;

(iii)a privileged supplier condition;

(iv)a significant market power condition (an “SMP condition”).

(3)A general condition is a condition which contains only provisions authorised or required by one or more of sections 51, 52, 57, 58 or 64.

(4)A universal service condition is a condition which contains only provisions authorised or required by section 67.

[F44(4A)A social tariff condition is a condition which contains only provision authorised by section 72F.]

(5)An access-related condition is a condition which contains only provisions authorised by section 73.

(6)A privileged supplier condition is a condition which contains only the provision required by section 77.

(7)An SMP condition is either—

(a)an SMP services condition; or

(b)an SMP apparatus condition.

(8)An SMP services condition is a condition which contains only provisions which—

(a)are authorised or required by one or more of sections 87 to [F4591] ; or

(b)in the case of a condition applying to a person falling within section 46(8)(b), correspond to provision authorised or required by one or more of sections 87 to [F4689A] .

(9)An SMP apparatus condition is a condition containing only provisions authorised by section 93.

(10)OFCOM’s power to set a condition under this section making provision authorised or required by this Chapter includes each of the following—

(a)power to impose a requirement on the person or persons to whom the condition is applied to comply with such directions with respect to the matters to which the condition relates as may be given from time to time by OFCOM or by another person specified in the condition;

(b)power to impose an obligation with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;

(c)power, for the purposes of provision made by virtue of either of the preceding paragraphs, to confer a discretion exercisable from time to time by OFCOM or by another person specified in the condition or determined in accordance with provision contained in it;

(d)power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and

(e)power to revoke or modify the conditions for the time being in force.

(11)The directions that may be authorised by virtue of subsection (10) do not include directions withdrawing, suspending or restricting a person’s entitlement—

(a)to provide, in whole or in part, any electronic communications network or electronic communications service; or

(b)to make available, in whole or in part, any associated facilities.

Textual Amendments

Commencement Information

I27S. 45 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I28S. 45 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

46Persons to whom conditions may applyU.K.

(1)A condition set under section 45 is not to be applied to a person except in accordance with the following provisions of this section.

(2)A general condition may be applied generally—

(a)to every person providing an electronic communications network or electronic communications service; or

(b)to every person providing such a network or service of a particular description specified in the condition.

(3)A universal service condition, access-related condition, privileged supplier condition or SMP condition may be applied to a particular person specified in the condition.

(4)A privileged supplier condition may also be applied generally—

(a)to every person to whom such a condition is required to apply under section 77; or

(b)to every such person who is of a particular description specified in the condition.

(5)The particular person to whom a universal service condition is applied—

(a)except in the case of a condition relating to matters mentioned in subsection (3) of section 66, must be a communications provider designated in accordance with regulations under that section; and

(b)in that excepted case, must be a communications provider so designated or a person who is not such a provider but who is so designated for the purposes only of conditions relating to those matters.

[F47(5A)A social tariff condition may be applied—

(a)generally to every person providing a public electronic communications service;

(b)generally to every person providing such a service of a particular description specified in the condition; or

(c)to a particular person specified in the condition.]

(6)The particular person to whom an access-related condition is applied—

(a)in the case of a condition falling within section 74(1), may be any person whatever;

[F48(aa)in the case of a condition falling within section 74(2A), must be—

(i)a person providing a public electronic communications network; or

(ii)the owner of a line or associated facility;

(ab)in the case of a condition falling within section 74A, must be a person who provides an electronic communications network; and]

(b)in any other case, must be a person who provides an electronic communications network or makes associated facilities available.

(7)The particular person to whom an SMP services condition is applied must—

(a)be a communications provider or a person who makes associated facilities available; and

(b)fall within subsection (8).

(8)A person falls within this subsection if—

(a)he is a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications networks, electronic communications services or associated facilities (a “services market”); or

(b)it appears to OFCOM that he is a person on whom it is necessary, for the purpose of securing compliance with an international obligation of the United Kingdom, to impose a condition containing provision that corresponds to provision which, in the case of a person falling within paragraph (a), must be made (or may be made) under any of sections 87 to [F4989A] .

[F50(8A)A person whom OFCOM have previously determined to be a person having significant market power in a services market but whom OFCOM determine no longer to be a person having significant market power in that market is to be treated as continuing to fall within subsection (8) for so long as OFCOM consider necessary to ensure a sustainable transition for those benefitting from obligations imposed on that person as a result of the previous determination.]

(9)The particular person to whom an SMP apparatus condition is applied must be—

(a)a person who supplies electronic communications apparatus; and

(b)a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications apparatus (an “apparatus market”).

Textual Amendments

Commencement Information

I29S. 46 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I30S. 46 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

47Test for setting or modifying conditionsU.K.

(1)OFCOM must not, in exercise or performance of any power or duty under this Chapter—

(a)set a condition under section 45, or

(b)modify such a condition,

unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in subsection (2).

(2)That test is that the condition or modification is—

(a)objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates [F51(but this paragraph is subject to subsection (3))] ;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what the condition or modification is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

[F52(3)Subsection (2)(a) does not apply in relation to the setting of a general condition.]

[F53(4)This section does not apply in relation to the setting or modification of a social tariff condition in accordance with a direction under section 72D(7).]

Textual Amendments

Commencement Information

I31S. 47 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I32S. 47 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

48Procedure for setting, modifying and revoking conditionsU.K.

(1)Subject to the following provisions of this Chapter—

(a)the way in which conditions are to be set or modified under section 45 is by the publication of a notification setting out the conditions or modifications; and

(b)the way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.

[F54(2)Where section 48A applies, OFCOM must comply with the applicable requirements of that section F55... before—

(a)setting conditions under section 45; or

(b)modifying or revoking a condition so set.

(2A)Where section 48A does not apply to the setting, modification or revocation of conditions because of subsection (2) of that section—

(a)the conditions, or their modification or revocation, must be temporary; and

(b)the notification published under subsection (1) of this section must state the period for which the conditions, or their modification or revocation, are to have effect.

(2B)Where OFCOM propose to extend or make permanent any such temporary conditions, modification or revocation—

(a)[F56section 48A does] not apply in relation to the proposal; F57...

F57(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(4)In the case of a [F58proposal by OFCOM] with respect to an SMP condition, the applicable requirements of sections 79 to 86 must also be complied with.

F59(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The publication of a notification under this section [F60or section 48A] must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification—

(a)in the case of a notification setting general conditions, to the attention of such persons as OFCOM consider appropriate; and

(b)in any other case, to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the contents of the notification.

(7)Nothing in the following provisions of this Chapter imposing a duty on OFCOM to set or modify a condition shall be taken as dispensing with any of the requirements of this section [F61or section 48A].

Textual Amendments

Commencement Information

I33S. 48 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I34S. 48 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F6248A. [F63Consultation] for section 45 conditionsU.K.

(1)This section applies where OFCOM propose to set, modify or revoke—

(a)SMP apparatus conditions; or

(b)any other conditions set under section 45 where what is proposed would, in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2)But this section does not apply where F64... in OFCOM’s opinion—

(a)there are exceptional circumstances; and

(b)there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

[F65(2A)This section also does not apply to the proposed setting, modification or revocation of a social tariff condition.]

(3)OFCOM must publish a notification—

(a)stating that they are proposing to set, modify or revoke the conditions that are specified in the notification;

(b)setting out the effect of those conditions, modifications or revocations;

(c)giving their reasons for making the proposal; and

(d)specifying the period within which representations may be made to OFCOM about their proposal.

(4)That period must end no less than [F6630 days] after the day of the publication of the notification.

(5)But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

(6)OFCOM must—

(a)consider every representation about the proposal made to them during the period specified in the notification; and

(b)have regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(7)F67... OFCOM may then give effect to [F68the proposal], with any modifications that appear to OFCOM to be appropriate.

Textual Amendments

F6948B. EU consultation for section 45 conditionsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

48C.Delivery of copies of notifications etc. in respect of section 45 conditionsU.K.

(1)OFCOM must send to the Secretary of State a copy of every notification published under section 48(1) or 48A(3).

F70(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

49Directions and approvals for the purposes of a s. 45 conditionU.K.

(1)This section applies where—

(a)a condition set under section 45 has effect by reference to directions, approvals or consents given by a person (whether OFCOM themselves or another); and

(b)that person [F71(referred to in this section and sections 49A to 49C as “the responsible person”)] is proposing to give a direction, approval or consent that affects the operation of that condition or to modify or withdraw a direction, approval or consent so as to affect the condition’s operation.

(2)[F72The responsible person] must not give, modify or withdraw the direction, approval or consent unless he is satisfied that to do so is—

(a)objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates [F73(but this paragraph is subject to subsection (2A))] ;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what it is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

[F74(2A)Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition.]

(3)[F75Where the responsible person is a person other than OFCOM, that person shall in giving, modifying or withdrawing the direction] be under the same duty as OFCOM to act in accordance with the [F76six] requirements set out in section 4.

[F77(4)Where section 49A applies, the applicable requirements of that section F78... must be complied with before the direction, approval or consent is given, modified or withdrawn.

(4A)Where section 49A does not apply because of subsection (2) of that section—

(a)the direction, approval or consent given, or its modification or withdrawal, must be temporary; and

(b)the instrument that gives, modifies or withdraws the direction, approval or consent must state the period for which it is to have effect.

(4B)Where it is proposed to extend or make permanent any such temporary direction, approval or consent, or modification or withdrawal—

(a)[F79section 49A does] not apply in relation to the proposal; F80...

F80(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4C)Where the responsible person is a person other than OFCOM, that person must refer to OFCOM such of the following questions as are relevant in the case in question—

(a)whether OFCOM is of the opinion mentioned in section 49A(1)(b); [F81and]

(b)whether OFCOM is of the opinion mentioned in section 49A(2); F82...

F82(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4D)OFCOM must immediately determine any question so referred to them.]

Textual Amendments

Commencement Information

I35S. 49 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I36S. 49 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F8349A. [F84Consultation] for directions, approvals and consentsU.K.

(1)This section applies where the responsible person is proposing to give, modify or withdraw a direction, approval or consent for the purposes of—

(a)an SMP apparatus condition; or

(b)any other condition set under section 45 where what is proposed would, in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2)But this section does not apply where F85... in OFCOM’s opinion—

(a)there are exceptional circumstances; and

(b)there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

(3)The responsible person must publish a notification—

(a)stating that there is a proposal to give, modify or withdraw the direction, approval or consent;

(b)identifying the responsible person;

(c)setting out the direction, approval or consent to which the proposal relates;

(d)setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;

(e)giving reasons for the making of the proposal; and

(f)specifying the period within which representations may be made about the proposal to the responsible person.

(4)That period must be one ending not less than [F8630 days] after the day of the publication of the notification.

(5)But where the responsible person is satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period that person considers reasonable in those circumstances.

(6)The responsible person must—

(a)consider every representation about the proposal made to that person during the period specified in the notification; and

(b)have regard to every international obligation of the United Kingdom (if any) which has been notified to OFCOM for the purposes of this paragraph by the Secretary of State.

(7)F87... The responsible person may then give effect to the proposal, with any modifications that appear to that person to be appropriate.

(8)The publication of a notification under this section must be in such manner as appears to the responsible person to be appropriate for bringing the contents of the notification to the attention of such persons as that person considers appropriate.

Textual Amendments

F8849B. EU consultation for directions, approvals and consentsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

49C.Delivery of copies of notifications etc. in respect of directions, approvals and consentsU.K.

(1)The responsible person must send to the Secretary of State—

(a)a copy of every notification published under section 49A(3);

(b)a copy of every direction, approval or consent given for the purposes of a condition set under section 45; and

(c)a copy of every instrument modifying or withdrawing such a direction, approval or consent.

F89(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F90(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In a case in which the responsible person is a person other than OFCOM, the responsible person must send to OFCOM—

(a)a copy of every notification published under section 49A(3);

(b)a copy of every direction, approval or consent given for the purposes of a condition set under section 45;

(c)a copy of every instrument modifying or withdrawing such a direction, approval or consent;

F91(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F93(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F9450Delivery of copies of notifications etc.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I37S. 50 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I38S. 50 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: subject-matterU.K.

51Matters to which general conditions may relateU.K.

(1)Subject to sections 52 to 64, the only conditions that may be set under section 45 as general conditions are conditions falling within one or more of the following paragraphs—

(a)conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;

(b)conditions making such provision as OFCOM consider appropriate for securing service interoperability and for securing, or otherwise relating to, network access;

(c)conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;

(d)conditions for giving effect to determinations or regulations made under section 71 [F95or 72H];

(e)conditions requiring F96... the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;

(f)conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;

(g)conditions requiring compliance with relevant international standards.

(2)The power under subsection (1)(a) to set conditions for protecting the interests of the end-users of public electronic communications services includes power to set conditions for that purpose which—

(a)relate to the supply, provision or making available of goods, services or facilities in association with the provision of public electronic communications services; F97...

[F98(b)provide protection for such end-users that is the same as, or similar to, any protection that was, immediately before IP completion day, required by Title 3 of Part 3 of the EECC Directive (end-user rights);]

[F99(ba)relate to any of the elements of a bundled contract;]

[F100(c)specify requirements in relation to the provision of services to disabled end-users;

(d)require the provision, free of charge, of specified information, or information of a specified kind, to end-users;

[F101(da)require a communications provider to pay compensation to an end-user on failing to meet a specified standard or obligation;]

(e)in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, impose minimum requirements in relation to the quality of public electronic communications networks;

(f)require a communications provider, in specified circumstances, to block access to telephone numbers or services in order to prevent fraud or misuse, and enable them to withhold fees payable to another communications provider in those circumstances;

(g)impose a limit on the duration of a contract between an end-user and a communications provider; F102...

(h)ensure that conditions and procedures for the termination of a contract do not act as a disincentive to an end-user changing communications provider.]

[F103(i)specify requirements in relation to arrangements that enable an end-user to change communications provider on request.]

F104(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F105(2B)The power to set general conditions falling within subsection (1)(b) includes power to require negotiations relating to service interoperability or network access to be conducted through an intermediary who—

(a)is independent of the parties; and

(b)is either appointed by the parties with the approval of OFCOM or appointed by OFCOM.]

(3)The power to set general conditions in relation to a description of electronic communications network or electronic communications service does not include power—

(a)to set conditions that are made applicable according to the identity of the provider of a network or service; or

(b)to set conditions that differ according to the identity of the provider of the networks or services to which they relate.

(4)The power to set general conditions falling within subsection (1)(b) does not include power to set conditions containing provision which under—

(a)section 73, or

(b)any of sections 87 to [F10691] ,

must be or may be included, in a case in which it appears to OFCOM to be appropriate to do so, in an access-related condition or SMP condition.

(5)The conditions falling within subsection (1)(c) include conditions making such provision as OFCOM consider appropriate for the purpose F107... of preventing or restricting electro-magnetic interference—

(a)with the provision of an electronic communications network or electronic communications service; or

(b)with, or with the receipt of, anything conveyed or provided by means of such a network or service.

(6)In this section “electro-magnetic interference” means interference by means of the emission or reflection of electro-magnetic energy in the course of, or in connection with, the provision any electronic communications network or electronic communications service.

(7)In this section “disaster” includes any major incident having a significant effect on the general public; and for this purpose a major incident includes any incident of contamination involving radioactive substances or other toxic materials.

[F108(8)In this Chapter “bundled contract” means a contract, or two or more closely related or linked contracts, between the provider of a public electronic communications service and a qualifying end-user, which—

(a)relates, or together relate, to the provision of at least one of the following—

(i)an internet access service; and

(ii)a number-based interpersonal communications service; and

(b)also relates, or together also relate, to the provision of at least one of the following—

(i)another service falling within paragraph (a)(i) or (ii);

(ii)any other public electronic communications service;

(iii)an information society service;

(iv)a content service; and

(v)terminal equipment.

(9)In subsection (8)—

  • “content service” has the meaning given by section 32(7);

  • “information society service” is to be read in accordance with Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification);

  • “internet access service” has the meaning given by section 32(2B);

  • “qualifying end-user” means an end-user who is—

    (a)

    an individual acting for purposes other than those of a business;

    (b)

    acting in the course of a business which is carried on by the end-user, and for which no more than 10 individuals work, whether as employees or volunteers or otherwise;

    (c)

    a not-for-profit body for which no more than 10 individuals work, whether as employees or otherwise but excluding volunteers.]

Textual Amendments

F101S. 51(2)(da) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 3, 118(2)

F102Word in s. 51(2) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 2(2), 118(2)

F103S. 51(2)(i) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 2(3), 118(2)

Commencement Information

I39S. 51 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I40S. 51 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: customer interestsU.K.

52Conditions relating to customer interestsU.K.

(1)It shall be the duty of OFCOM to set such general conditions (if any) as they consider appropriate for securing that—

(a)public communications providers, or

(b)such descriptions of them as OFCOM consider appropriate,

establish and maintain procedures, standards and policies with respect to the matters mentioned in subsection (2).

(2)Those matters are—

(a)the handling of complaints made to public communications providers by any of their domestic and small business customers [F109, where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service] ;

(b)the resolution of disputes between such providers and any of their domestic and small business customers [F110, where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service] ;

(c)the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

[F111(ca)the payment of compensation to a person in respect of delay in porting a number to another public communications provider, or abuse of the process for porting a number;]

(d)the information about service standards and about the rights of domestic and small business customers that is to be made available to those customers by public communications providers;

(e)any other matter appearing to OFCOM to be necessary for securing effective protection for the domestic and small business customers of such providers.

(3)It shall be the duty of OFCOM, in setting conditions in accordance with subsection (1), to secure so far as they consider appropriate—

(a)that the procedures established and maintained for the handling of complaints and the resolution of disputes are easy to use, transparent [F112, non-discriminatory] and effective;

(b)that domestic and small business customers have the right to use those procedures free of charge; and

(c)that where public communications providers are in contravention of conditions set in accordance with the preceding provisions of this section, the providers follow such procedures as may be required by the general conditions.

(4)Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for the handling of complaints are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers to establish and maintain procedures that conform with a code of practice which is—

(a)applicable to the providers to whom the conditions apply; and

(b)for the time being approved by OFCOM for the purposes of this subsection.

(5)Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for resolving disputes are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers—

(a)to establish and maintain procedures for resolving disputes; and

(b)to secure that those procedures are, and continue to be, approved by OFCOM.

(6)In this section “domestic and small business customer”, in relation to a public communications provider, means a customer of that provider who is neither—

(a)himself a communications provider; nor

(b)a person who is such a customer in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise).

Textual Amendments

Commencement Information

I41S. 52 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I42S. 52 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

53Approval of codes of practice for the purposes of s. 52U.K.

(1)Where a code of practice is submitted to OFCOM for approval, they shall approve that code if and only if, in their opinion, it makes all such provision as they consider necessary in relation to the matters dealt with in the code for the protection of the domestic and small business customers of the public communications providers to whom the code applies.

(2)It shall be the duty of OFCOM to keep under review the codes of practice for the time being approved by them.

(3)OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a)approve modifications that have been made to an approved code;

(b)withdraw their approval from a code; or

(c)give notice that the withdrawal of their approval will take effect from such time as may be specified in the notification unless such modifications of the code as are specified in the notification are made before that time.

(4)In considering—

(a)whether to approve a code of practice, or

(b)whether or in what manner to exercise their powers under subsections (2) and (3) of this section,

OFCOM must have regard to the matters mentioned in subsection (5).

(5)Those matters are—

(a)the need to secure that customers are able readily to comprehend the procedures that are provided for by an approved code of practice;

(b)the need to secure that there is consistency between the different codes for the time being approved by OFCOM; and

(c)the need to secure that the number of different codes so approved is kept to a minimum.

(6)In this section—

  • “approval” means approval for the purposes of section 52(4) and “approve” and “approved” are to be construed accordingly; and

  • “domestic and small business customer” has the same meaning as in section 52.

Commencement Information

I43S. 53 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I44S. 53 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

54Approval of dispute procedures for the purposes of s. 52U.K.

(1)Before giving their approval to any dispute procedures, OFCOM must consult the Secretary of State.

(2)OFCOM are not to approve dispute procedures unless they are satisfied that the arrangements under which the procedures have effect—

(a)are administered by person who is for practical purposes independent (so far as decisions in relation to disputes are concerned) of both OFCOM and the communications providers to whom the arrangements apply;

(b)give effect to procedures that are easy to use, transparent [F113, non-discriminatory] and effective;

(c)give, in the case of every communications provider to whom the arrangements apply, a right to each of his domestic and small business customers to use the procedures free of charge;

(d)ensure that all information necessary for giving effect to the procedures is obtained;

(e)ensure that disputes are effectively investigated;

(f)include provision conferring power to make awards of appropriate compensation; and

(g)are such as to enable awards of compensation to be properly enforced.

(3)OFCOM may approve dispute procedures subject to such conditions (including conditions as to the provision of information to OFCOM) as they may think fit.

(4)It shall be the duty of OFCOM to keep under review the dispute procedures for the time being approved by them.

(5)OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a)modify the conditions of their approval of any dispute procedures or withdraw such an approval; or

(b)give notice that the modification of those conditions, or the withdrawal of such an approval, will take effect from such time as may be specified in the notification unless the procedures (or the arrangements under which they have effect) are modified before that time in the manner required by the notification.

(6)In considering—

(a)whether to approve dispute procedures, or

(b)whether or in what manner to exercise their powers under subsections (3) to (5),

OFCOM must have regard to the matters mentioned in subsection (7).

(7)Those matters are—

(a)the need to secure that customers are able readily to comprehend dispute procedures;

(b)the need to secure that there is consistency between the different procedures for the time being approved by OFCOM; and

(c)the need to secure that the number of different sets of procedures so approved is kept to a minimum.

(8)In this section—

  • “approval” means approval for the purposes of subsection (5) of section 52 and “approve” and “approved” are to be construed accordingly;

  • “dispute procedures” means any such procedures as may fall to be approved for the purposes of that subsection; and

  • “domestic and small business customer” has the same meaning as in section 52.

Textual Amendments

Commencement Information

I45S. 54 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I46S. 54 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

55Orders by OFCOM in the absence of conditions under s. 52U.K.

(1)OFCOM may make an order under this section if, at any time, they consider in relation to any one or more public communications providers—

(a)that it is not practicable, or at least not appropriate, for OFCOM’s duties under subsections (1) and (3) of section 52 to be performed in a particular respect by the setting of general conditions; and

(b)that it is necessary to make the order for the purpose—

(i)of securing the necessary protection for the customers of that provider or of those providers; F114...

F114(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)An order under this section may make such of the following provisions as OFCOM think fit—

(a)provision imposing requirements with respect to the complaints and disputes mentioned in section 52(2);

(b)provision for the enforcement of those requirements;

(c)provision making other arrangements for the purposes of those requirements.

(3)The power to make provision by an order under this section includes, in particular—

(a)power to establish a body corporate with the capacity to make its own rules and to establish its own procedures;

(b)power to determine the jurisdiction of a body established by such an order or, for the purposes of the order, of any other person;

(c)power to confer jurisdiction with respect to any matter on OFCOM themselves;

(d)power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e)power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order; and

(f)power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4)An order under this section may require such public communications providers as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a)the establishment and maintenance, in accordance with such an order, of a body corporate or of a procedure; or

(b)the making of any other arrangements for the purposes of the requirements of such an order.

(5)The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(6)Section 403 applies to the power of OFCOM to make an order under this section.

(7)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

Commencement Information

I47S. 55 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I48S. 55 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: telephone numbersU.K.

56The National Telephone Numbering PlanU.K.

(1)It shall be the duty of OFCOM to publish a document (to be known as “the National Telephone Numbering Plan”) setting out—

(a)the numbers that they have determined to be available for allocation by them as telephone numbers;

(b)such restrictions as they consider appropriate on the adoption of numbers available for allocation in accordance with the plan; F115...

[F116(ba)such requirements as they consider appropriate, for the purpose of protecting consumers, in relation to the tariff principles and maximum prices applicable to numbers so adopted or available for allocation; and]

(c)such restrictions as they consider appropriate on the other uses to which numbers available for allocation in accordance with the plan may be put.

(2)It shall be OFCOM’s duty—

(a)from time to time to review the National Telephone Numbering Plan; and

(b)to make any revision of that plan that they think fit in consequence of such a review;

but this duty must be performed in compliance with the requirements, so far as applicable, of section 60.

(3)OFCOM must also keep such day to day records as they consider appropriate of the telephone numbers allocated by them in accordance with the National Telephone Numbering Plan.

(4)The publication of the National Telephone Numbering Plan, or of a revision of it, must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the Plan, or of the revised Plan, to the attention of such persons as OFCOM consider appropriate.

(5)In this Chapter references to a telephone number are (subject to subsection (7)) references to any number that is used (whether or not in connection with telephony) for any one or more of the following purposes—

(a)identifying the destination for, or recipient of, an electronic communication;

(b)identifying the origin, or sender, of an electronic communication;

(c)identifying the route for an electronic communication;

(d)identifying the source from which an electronic communication or electronic communications service may be obtained or accessed;

(e)selecting the service that is to be obtained or accessed, or required elements or characteristics of that service; or

(f)identifying the communications provider by means of whose network or service an electronic communication is to be transmitted, or treated as transmitted.

(6)In this Chapter references to the adoption of a telephone number by a communications provider are references to his doing any of the following in relation to a number allocated (whether or not to that provider) by OFCOM—

(a)allocating or transferring that number to a particular customer or piece of apparatus;

(b)using that number for identifying a service or route used by that provider or by any of his customers;

(c)using that number for identifying a communication as one to be transmitted by that provider;

(d)designating that number for use in selecting a service or the required elements or characteristics of a service;

(e)authorising the use of that number by others for any of the purposes mentioned in subsection (5).

(7)The Secretary of State may by order exclude such numbers as may be described in the order from the numbers that are to be treated as telephone numbers for the purposes of this Chapter.

(8)No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(9)References in this section to the allocation of a number are references to its allocation for the purposes of general conditions under section 58 or in accordance with conditions under section 59.

(10)In this section—

  • “electronic communication” means a communication for transmission by means of an electronic communications network; and

  • “number” includes data of any description.

Textual Amendments

Commencement Information

I49S. 56 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I50S. 56 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F11756A.Conditions for limitations on allocation of telephone numbersU.K.

(1)When OFCOM allocate telephone numbers in accordance with the National Telephone Numbering Plan, they must specify whether an allocation may be transferred from one person to another, and may set out the conditions under which the allocation may be transferred.

(2)If OFCOM allocate telephone numbers for a limited period of time, the limitation must be objectively justifiable in relation to the services to which it relates, taking account of the need to allow for an appropriate period of investment amortisation.]

Textual Amendments

57Conditions to secure access to telephone numbersU.K.

(1)General conditions may impose such requirements as OFCOM consider appropriate for securing that every end-user of a public electronic communications service is able, by means of that service—

(a)to make calls or otherwise transmit electronic communications to every normal telephone number; and

(b)to receive every call or other electronic communication that is made or transmitted to him using such a service from apparatus identified by a normal telephone number.

(2)A normal telephone number is one which—

(a)has been made available, in accordance with the National Telephone Numbering Plan, as a number to be used for the purpose of identifying the destination for, or the recipient of, electronic communications; and

(b)is for the time being—

(i)a number adopted by a communications provider to be used for such a purpose; or

(ii)a number in use for such a purpose by a person other than a communications provider to whom it has been allocated in accordance with conditions under section 59.

(3)In this section “electronic communication” has the same meaning as in section 56.

Commencement Information

I51S. 57 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I52S. 57 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

58Conditions about allocation and adoption of numbersU.K.

(1)General conditions may include conditions which—

(a)prohibit the adoption of telephone numbers by a communications provider except in cases where the numbers have been allocated by OFCOM to a person;

[F118(aa)impose tariff principles and maximum prices for the purpose of protecting consumers in relation to the provision of an electronic communications service by means of telephone numbers adopted or available for use;]

(b)regulate the use by a communications provider, for the purpose of providing an electronic communications network or electronic communications service, of telephone numbers not allocated to that provider;

(c)impose restrictions on the adoption of telephone numbers by a communications provider, and on other practices by communications providers in relation to telephone numbers allocated to them;

(d)impose requirements on a communications provider in connection with the adoption by him of telephone numbers;

(e)require an allocation of particular telephone numbers to be transferred from one communications provider to another in the circumstances provided for in the conditions;

(f)impose such requirements and restrictions on a communications provider from whom an allocation is required to be transferred as may be provided for, in relation to the transfer, in the conditions;

(g)require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of the allocation to him of telephone numbers;

(h)require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of transfers of allocations from one person to another; and

(i)require communications providers to secure compliance with such rules relating to the use of telephone numbers by their customers as OFCOM may set out in general conditions or determine in accordance with provision made by the general conditions.

(2)General conditions may also—

(a)provide for the procedure to be followed on the making of applications to OFCOM for the allocation of telephone numbers;

(b)provide for the information that must accompany such applications and for the handling of such applications;

(c)provide a procedure for telephone numbers to be reserved pending the making and disposal of an application for their allocation;

(d)provide for the procedure to be followed on the making of applications for telephone numbers to be reserved, and for the handling of such applications;

(e)regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the adoption by a communications provider of telephone numbers allocated to that provider;

(f)regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the transfer of an allocation from one person to another.

[F119(2A)General conditions may also require a communications provider to whom telephone numbers have been allocated—

(a)to provide OFCOM with any information that was not required to accompany the application for allocation of the numbers when it was made but which is now required to accompany such applications;

(b)to inform OFCOM of any changes to information that accompanied the application for allocation of the numbers or that has been provided in accordance with a condition set under paragraph (a);

(c)to inform OFCOM of any proposal by the provider to cease to provide an electronic communications network or electronic communications service;

(d)to inform OFCOM of any circumstances or events of a description specified in the condition.]

(3)The conditions that may be set under subsection (1)(d) include conditions imposing requirements with respect to the provision of information for purposes connected with—

(a)the compilation of directories; and

(b)the provision of directory enquiry facilities.

(4)The procedure to be followed on the making of an application for the allocation of numbers that are available for allocation in accordance with the National Telephone Numbering Plan must require OFCOM’s determination of the application to be made—

(a)in the case of an application made in response to an invitation in accordance with subsection (5), before the end of six weeks after the day on which the application is received; and

(b)in any other case, before the end of three weeks after that day.

(5)Where OFCOM are proposing to allocate any telephone numbers, they may—

(a)invite persons to indicate the payments each would be willing to make to OFCOM if allocated the numbers; and

(b)make the allocation according to the amounts indicated.

(6)General conditions providing for payments to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a)must set out the principles according to which the amounts of the payments are to be determined;

(b)may provide for the payments to consist of a lump sum in respect of a particular allocation or transfer or of sums payable periodically while an allocation remains in force, or of both;

(c)may provide for the amounts to be determined by reference to—

(i)any indication according to which the allocation has been made as mentioned in subsection (5); or

(ii)any other factors (including the costs incurred by OFCOM in connection with the carrying out of their functions by virtue of section 56 and this section) as OFCOM think fit.

(7)General conditions may—

(a)make modifications from time to time of, or of the method of determining, the amounts of periodic payments falling to be made by virtue of conditions containing provision authorised by this section; and

(b)make different provision in relation to different descriptions of communications provider and different descriptions of telephone number.

(8)Nothing in subsection (7) authorises the modification, after it has been fixed, of the amount of a periodic payment fixed in accordance with arrangements made in relation to numbers allocated as mentioned in subsection (5)(b).

(9)Payments that are required to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a)must be paid to them as soon as they become due in accordance with the conditions imposing the obligation to pay; and

(b)if not so paid, are to be recoverable by them accordingly.

Textual Amendments

F119S. 58(2A) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 84, 118(2)

Commencement Information

I53S. 58 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I54S. 58 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

59Telephone numbering conditions binding non-providersU.K.

(1)OFCOM may set conditions under this section that apply to persons other than communications providers and relate to—

(a)the allocation of telephone numbers to such persons;

(b)the transfer of allocations to and from such persons; and

(c)the use of telephone numbers by such persons.

(2)The conditions that may be set under this section include conditions imposing obligations corresponding to any of the obligations that may be imposed on communications providers by general conditions making provision for, or in connection with—

(a)the allocation of telephone numbers;

(b)the transfer of allocations; or

(c)the use of telephone numbers.

(3)Subsection (10) of section 45 applies to OFCOM’s power to set a condition under this section as it applies to their power to set a condition under that section.

(4)Sections 47 to 49 apply in relation to—

(a)the setting of conditions under this section and the modification and revocation of such conditions; and

(b)the giving, modification or withdrawal of any direction, approval or consent for the purposes of a condition under this section,

as they apply in the case of general conditions and in the case of directions, approvals and consents given for the purposes of general conditions.

(5)It shall be the duty of a person who—

(a)is not a communications provider, but

(b)applies for the allocation of a telephone number, or is allocated such a number,

to comply with any conditions set under this section.

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

(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.

(7)Subsection (6) does not apply in the case of a person against whom the obligations contained in the condition in question are enforceable (by virtue of his having become a communications provider) as obligations imposed by general conditions.

Commencement Information

I55S. 59 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I56S. 59 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

60Modification of documents referred to in numbering conditionsU.K.

(1)This section applies where numbering conditions for the time being have effect by reference to provisions, as they have effect from time to time, of—

(a)the National Telephone Numbering Plan; or

(b)another document published by OFCOM.

(2)OFCOM must not revise or otherwise modify the relevant provisions unless they are satisfied that the revision or modification is—

(a)objectively justifiable in relation to the matters to which it relates;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what the modification is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

(3)Before revising or otherwise modifying the relevant provisions, OFCOM must publish a notification—

(a)stating that they are proposing to do so;

(b)specifying the Plan or other document that they are proposing to revise or modify;

(c)setting out the effect of their proposed revisions or modifications;

(d)giving their reasons for making the proposal; and

(e)specifying the period within which representations may be made to OFCOM about their proposal.

(4)That period must be one ending not less than [F12030 days] after the day of the publication of the notification.

(5)OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (3) only if—

(a)they have considered every representation about the proposal that is made to them within the period specified in the notification; and

(b)they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(6)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.

(7)In this section—

  • “numbering conditions” means—

    (a)

    general conditions the making of which is authorised by section 57 or 58;

    (b)

    conditions set under section 59;

  • “the relevant provisions”, in relation to the Plan or document, means the provisions of the Plan or document by reference to which (as they have effect from time to time) the numbering conditions in question have effect.

Textual Amendments

Commencement Information

I57S. 60 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I58S. 60 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

61Withdrawal of telephone number allocationsU.K.

(1)Where OFCOM have allocated telephone numbers for the purposes of any numbering conditions, they may withdraw that allocation if, and only if, the case is one in which the withdrawal of an allocation is authorised by this section.

(2)The withdrawal of an allocation is authorised (subject to section 62) if—

(a)consent to the withdrawal is given by the person to whom the numbers are for the time being allocated;

(b)the withdrawal is made for the purposes of a transfer of the allocation required by numbering conditions;

(c)the withdrawal is made for the purposes of a numbering reorganisation applicable to a particular series of telephone numbers;

(d)the withdrawal is made in circumstances specified in the numbering conditions and for the purpose of securing that what appears to OFCOM to be the best and most efficient use is made of the numbers and other data that are appropriate for use as telephone numbers;

(e)the allocated numbers are numbers that have not been adopted during such period after their allocation as may be specified in the numbering conditions; or

(f)the allocated numbers are comprised in a series of numbers which have not to a significant extent been adopted or used during such period as may be so specified.

(3)The withdrawal of an allocation is also authorised where—

(a)there have been [F121serious or repeated] contraventions, by the person to whom the allocation is for the time being allocated, of the numbering conditions; and

(b)it appears to OFCOM that the taking of other steps in respect of the contraventions is likely to prove ineffective for securing future compliance.

(4)The withdrawal of an allocation is also authorised where—

(a)the person to whom the allocation is for the time being allocated is not a communications provider; and

(b)it appears to OFCOM that contraventions by that person of numbering conditions makes the withdrawal of the allocation appropriate.

(5)OFCOM’s power to set conditions specifying circumstances for the purposes of subsection (2)(d), and their power to withdraw an allocation in the specified circumstances, are each exercisable only in a manner that does not discriminate unduly—

(a)against particular communications providers;

(b)against particular users of the allocated numbers; or

(c)against a particular description of such providers or users;

and the purposes for which those powers may be exercised do not include the carrying out of a numbering reorganisation of the sort mentioned in subsection (2)(c).

(6)Where OFCOM are proposing to withdraw an allocation in exercise of the power conferred by virtue of subsection (2)(e) or (f), they must—

(a)give a notification of their proposal;

(b)consider any representations made to them about the proposal within the period of [F12230 days] following the day on which the notification is given; and

(c)ensure that the withdrawal (if OFCOM decide to proceed with it after considering those representations) does not take effect until the end of the three months beginning with the end of the period mentioned in paragraph (b).

(7)A notification for the purposes of subsection (6) must be given in such manner as OFCOM consider appropriate for bringing it to the attention of—

(a)the person to whom the numbers to which the proposed withdrawal relates are for the time being allocated;

(b)every person appearing to OFCOM to be a person to whom communications are or may be transmitted using one of those numbers for identifying the destination or route;

(c)every person who uses one or more of those numbers for obtaining access to services or for communication; and

(d)every other person who, in OFCOM’s opinion, is likely to be affected by the proposal.

(8)For the purposes of this section there are repeated contraventions by a person of numbering conditions to the extent that—

[F123(a)in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(2) in respect of the contravention; and

(b)in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of numbering conditions;]

and for the purposes of this subsection it shall be immaterial whether the [F124confirmation decisions] related to the same contravention or to different contraventions of the same or different conditions.

(9)In this section “numbering conditions” means—

(a)general conditions the making of which is authorised by section 58; or

(b)conditions set under section 59.

Textual Amendments

Commencement Information

I59S. 61 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I60S. 61 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

62Numbering reorganisationsU.K.

(1)This section applies to the withdrawal of an allocation for the purposes of a numbering reorganisation that is applicable to a particular series of telephone numbers.

(2)The allocation is to be withdrawn only if the reorganisation, so far as it relates to numbers of any description, is not such as to discriminate unduly—

(a)against particular communications providers;

(b)against particular users of the allocated numbers; or

(c)against a particular description of such providers or users.

(3)The allocation must not be withdrawn if the reorganisation fails to provide for withdrawn allocations to be replaced by allocations of telephone numbers so nearly resembling the numbers to which the withdrawal relates as the purpose of the reorganisation allows.

(4)Where a replacement allocation is made for the purposes of the re-organisation—

(a)no payment is to be made to OFCOM in respect of the making of the replacement allocation; but

(b)subsection (5) is to apply.

(5)Where this subsection applies—

(a)a provision for the making of periodic payments in respect of the withdrawn allocation is to be treated, to the extent that OFCOM determine that it should, as a provision requiring the making of periodic payments in respect of the replacement allocation; and

(b)OFCOM may, if they think fit, make such repayments or adjustments of a provision for payment as appear to them to be appropriate in consequence of differences between—

(i)the numbers to which the withdrawn allocation relates; and

(ii)the numbers to which the replacement allocation relates.

Commencement Information

I61S. 62 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I62S. 62 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

63General duty as to telephone numbering functionsU.K.

(1)It shall be the duty of OFCOM, in the carrying out of their functions under sections 56 to 62—

(a)to secure that what appears to them to be the best use is made of the numbers that are appropriate for use as telephone numbers; and

(b)to encourage efficiency and innovation for that purpose.

(2)It shall also be the duty of OFCOM, in carrying out those functions, to secure that there is no undue discrimination by communications providers against other communications providers in relation to the adoption of telephone numbers for purposes connected with the use by one communications provider, or his customers, of an electronic communications network or electronic communications service provided by another.

(3)In this section “number” has the same meaning as in section 56.

Commencement Information

I63S. 63 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I64S. 63 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

General conditions: must-carry obligationsU.K.

64Must-carry obligationsU.K.

(1)General conditions may include conditions making any provision that OFCOM consider appropriate for securing that particular services are broadcast or otherwise transmitted by means of the electronic communications networks described in the conditions.

(2)A general condition containing provision authorised by this section is not (subject to subsection (4)) to require a service to be broadcast or otherwise transmitted by means of an electronic communications network unless—

(a)the service is included in the list of must-carry services; and

(b)the effect of the requirement is confined to networks by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes.

(3)That list is as follows—

(a)any service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;

(b)the Channel 3 services so far as provided in digital form;

(c)Channel 4 so far as provided in digital form;

(d)Channel 5 so far as provided in digital form;

(e)S4C Digital;

F125(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)General conditions making provision authorised by this section in relation to a listed service must, to such extent as OFCOM consider appropriate (and subject to subsection (5))—

(a)apply the requirement to broadcast or otherwise transmit that service to every service which is an ancillary service by reference to the listed service [F126(including, but not limited to, a service enabling access for disabled end-users)] ; and

(b)provide for the listed service to be treated for the purposes of the conditions as constituting such other services comprised in or provided with that service as may be determined by OFCOM.

(5)General conditions making provision authorised by this section must also comply with all such restrictions (if any) as may be imposed by order made by the Secretary of State as to the maximum and minimum amounts, or proportions, of available capacity that are to be required by such conditions to be used in the case of a network for the broadcasting or other transmission of particular services, or descriptions of service.

(6)In making an order under subsection (5) the Secretary of State must have regard to—

(a)the objective of securing that services included in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to be applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable; and

(b)the need to secure that the amount of capacity available in the case of every network for making other services available is reasonable and, accordingly, that the burden of complying with conditions set in accordance with this section is proportionate to the public benefit to be secured by that objective.

(7)It shall be the duty of the Secretary of State from time to time to review—

(a)the list of must-carry services; and

(b)any requirements for the time being in force under this section with respect to the terms on which services must be broadcast or otherwise transmitted.

(8)Where the Secretary of State carries out such a review, he must consult the following about the matters under review—

(a)OFCOM; and

(b)such persons who, in his opinion, are likely to be affected by a modification of the list of must-carry services, or who represent any of those persons, as he thinks fit.

(9)If, on such a review, he considers it appropriate to do so, the Secretary of State may by order modify the list of must-carry services.

(10)In determining whether it is appropriate for the purposes of subsection (9) to add a service to the list of must-carry services or to remove it, the Secretary of State must have regard, in particular, to—

(a)the public benefit to be secured by the addition of the service to the list, or by its retention in the list;

(b)the extent to which the service (if it were not included in the list) would nevertheless be made available to an acceptable technical standard by means of the networks to which conditions set in accordance with this section apply;

(c)the capacity left available, after the requirements of those conditions have been complied with, for the broadcasting or other transmission of material by means of each of those networks; and

(d)the need to secure that the burden of complying with conditions so set is proportionate to the objective of securing that the services in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable.

(11)The Secretary of State may also, if (whether on such a review or in any other circumstances) he considers it appropriate to do so, by order make provision imposing requirements as to what, as between—

(a)the person providing a must-carry service, and

(b)the person providing a network by means of which it is to be provided,

are to be the terms on which the service is to be broadcast or otherwise transmitted, in pursuance of general conditions set in accordance with this section, by means of that network.

(12)An order under subsection (11) may provide for the terms to be determined by OFCOM in accordance with the provisions of the order.

(13)Before making an order under subsection (5), and before making an order under subsection (11) in a case in which there has been no review under subsection (7), the Secretary of State must consult—

(a)OFCOM, and

(b)such persons who, in his opinion, are likely to be affected by the order, or who represent any of those persons, as he thinks fit.

(14)Section 362 applies for construing this section as it applies for the purposes of Part 3.

Textual Amendments

Commencement Information

I65S. 64 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I66S. 64 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Universal service conditionsU.K.

65Obligations to be secured by universal service conditionsU.K.

(1)The Secretary of State must by order F127... set out the extent to which the things falling within subsection (2) must F128... be provided, made available or supplied throughout the United Kingdom.

(2)Those things are—

(a)electronic communications networks and electronic communications services;[F129and]

(b)facilities capable of being made available as part of or in connection with an electronic communications service;

F130(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F131(2A)The provision made under subsection (1) is referred to as “the universal service order”.

(2B)The universal service order may in particular say that broadband connections and services [F132at a fixed location] must be provided to any extent, but may not do so unless—

(a)it specifies the minimum download speed that must be provided by those connections and services, and

(b)the speed so specified is at least 10 megabits per second.

[F133(2BA)The universal service order may in particular say that mobile services must be provided to any extent, but may not do so unless this appears to the Secretary of State necessary to ensure the full social and economic participation in society of qualifying end-users.

(2BB)In subsection (2BA)—

(a)“mobile services” means—

(i)broadband services provided otherwise than at a fixed location; and

(ii)telephone services provided otherwise than at a fixed location;

(b)“qualifying end-user” means an end-user who is—

(i)an individual acting for purposes other than those of a business;

(ii)a micro, small or medium-sized enterprise, as defined by Article 2(1) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises; or

(iii)a not-for-profit body.

(2BC)The universal service order may continue to contain provision setting out the extent to which any of the following things must be provided, made available or supplied throughout the United Kingdom—

(a)public pay telephone or other public voice telephony access points;

(b)particular methods of billing for electronic communications services or of accepting payment for them;

(c)directories capable of being used in connection with the use of an electronic communications network or electronic communications service;

(d)directory enquiry facilities capable of being used for purposes connected with the use of such a network or service;

(e)publicly available telephone services capable of allowing end-users to send and receive facsimile.]

(2C)The universal service order may contain—

(a)guidance about matters relating to the speed [F134to be provided by broadband connections or services at a fixed location] or other characteristics of broadband connections or services that it says must be provided (as well as or, except in the case of the minimum download speed, instead of setting out any of those characteristics); and

(b)guidance about any other matters relating to those connections or services.]

(3)The universal service order may contain guidance about matters relating to the pricing of things that the order says must be provided, made available or supplied[F135, other than matters relating only to social tariffs as defined by section 72F(2)].

(4)Before making or varying the universal service order, the Secretary of State must consult OFCOM and such other persons as he considers appropriate.

[F136(5)Before making or varying the universal service order, the Secretary of State must take due account of the desirability of not favouring—

(a)one form of electronic communications network, electronic communications service or associated facility, or

(b)one means of providing or making available such a network, service or facility,

over another.]

[F137(6)In this section “public pay telephone” means a telephone available to the general public, for the use of which the means of payment may include one or more of the following—

(a)coins;

(b)credit or debit cards; and

(c)pre-payment cards, including cards for use with dialling codes.]

Textual Amendments

F127Words in s. 65(1) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 1(3), 118(2)

F131S. 65(2A)-(2C) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(4), 118(2)

Modifications etc. (not altering text)

Commencement Information

I67S. 65 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I68S. 65 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

66Designation of universal service providersU.K.

(1)OFCOM may by regulations make provision for the designation of the persons to whom universal service conditions are to be applicable.

(2)Subject to subsection (3), those regulations are not to authorise the designation of a person other than a communications provider.

(3)The regulations may provide for a person other than a communications provider to be designated for the purposes only of conditions relating to—

(a)the supply of directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and

(b)the making available of directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.

(4)OFCOM may from time to time—

(a)review the designations for the time being in force in accordance with regulations under this section; and

(b)on such a review, consider what (if any) universal service conditions should continue to apply to each of the designated persons.

(5)The procedure to be followed in the case of every such review must be the procedure provided for in regulations made by OFCOM.

(6)Regulations made by OFCOM under this section must provide for a person’s designation as a person to whom universal service conditions are to be applicable to cease to have effect where, in any such case as may be described in the regulations, the universal service conditions applied to him are all revoked.

(7)Regulations made by OFCOM under this section providing a procedure for the designation of persons, or for the conduct of a review under subsection (4), must not provide for any procedure other than one appearing to OFCOM—

(a)to be efficient, objective and transparent; and

(b)not to involve, or to tend to give rise to, any undue discrimination against any person or description of persons.

F138(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F139(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F140(9A)In making any regulations under this section, OFCOM must have regard to any guidance that is contained in the universal service order.]

(10)Section 403 applies to the power of OFCOM to make regulations under this section.

Textual Amendments

F140S. 66(9A) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(5), 118(2)

Commencement Information

I69S. 66 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I70S. 66 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

67Subject-matter of universal service conditionsU.K.

(1)OFCOM may set any such universal service conditions as they consider appropriate for securing compliance with the obligations set out in the universal service order.

[F141(1A)OFCOM may also set universal service conditions which apply to a designated universal service provider who proposes to make a disposal to another person of a substantial part or all of the designated universal service provider’s local access network assets.

(1B)But subsection (1A) does not apply where the disposal is made by a company to a connected company (within the meaning given by section 1122(2) of the Corporation Tax Act 2010).]

(2)Universal service conditions applied to a person must include a condition requiring him to publish information about his performance in complying with the universal service conditions that apply to him.

(3)A condition set in accordance with subsection (2) must contain provision which—

(a)requires information published in accordance with it to be updated from time to time and published again; [F142and]

(b)requires information so published to satisfy the requirements that OFCOM consider appropriate for securing that it is adequate;F143...

F143(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F144(3A)A condition set in accordance with that subsection may require the information published in accordance with it to be framed by reference to such international standards specified in the condition as OFCOM consider appropriate.]

(4)A condition set in accordance with that subsection may impose requirements as to—

(a)the times at which information published in accordance with it is to be published; and

(b)the manner in which that information is to be published.

(5)Universal service conditions may impose an obligation on a person to whom they apply to do one or both of the following, if required to do so by OFCOM—

(a)to make facilities available for enabling information published in pursuance of a condition applied to that person under subsection (2) to be independently audited;

(b)to meet the costs of any independent auditing of that information that is required by OFCOM.

(6)The reference in subsection (5) to the independent auditing of information is a reference to its being audited by a qualified auditor—

(a)for accuracy; and

(b)for its usefulness in the making of comparisons with information published by other designated universal service providers.

(7)Universal service conditions may impose performance targets on designated universal service providers with respect to any of the matters in relation to which obligations may be imposed by such conditions.

(8)In setting a universal service condition, OFCOM must have regard to any guidance F145... that is contained in the universal service order.

(9)[F146In this section “qualified auditor” means a person who—

(a)is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and

(b)if the appointment to carry out such auditing as is mentioned in subsection (5) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).]

Textual Amendments

F145Words in s. 67(3)omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 1(6), 118(2)

Commencement Information

I71S. 67 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I72S. 67 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

68Tariffs etc. for universal servicesU.K.

(1)It shall be the duty of OFCOM—

(a)to keep under review universal service tariffs; and

(b)to monitor changes to those tariffs.

(2)Universal service conditions may require one or more of the following—

(a)the use of a common tariff, or of common tariffs, in relation to anything mentioned in section 65(2);

(b)the use, in such cases as may be specified or described in the conditions, of such special tariffs in relation to anything so mentioned as may be so specified or described;

(c)the fixing of tariffs used in accordance with the conditions by the use of such methods, and by reference to such methods of computing costs, as may be so specified or described.

[F147(2A)The special tariffs that may be required by virtue of subsection (2)(b) do not include social tariffs as defined by section 72F(2).]

(3)Universal service conditions must secure that the terms on which a person is provided with anything required by the universal service order do not require him—

(a)to pay for an unnecessary additional service; or

(b)to pay, in respect of anything required by the order, any amount that is attributable to the provision to him of such a service.

(4)The references in subsection (3), in relation to a person, to an unnecessary additional service are references to anything the provision of which—

(a)he has to accept by reason of his being provided, at his request, with something required by the order (“the requested service”); and

(b)is not necessary for the purpose of providing him with the requested service.

(5)It shall be the duty of OFCOM, in setting a universal service condition about universal service tariffs, to have regard to anything ascertained by them in the performance of their duty under subsection (1).

(6)References in this section to a universal service tariff are references to any of the tariffs used by designated universal service providers [F148or, where there is no designated universal service provider, by other persons,] in relation to the things for the time being required by the universal service order.

(7)References in this section to providing a person with anything include references to making it available or supplying it to him.

(8)In this section “tariff” includes a pricing structure.

Textual Amendments

Commencement Information

I73S. 68 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I74S. 68 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

69Directories and directory enquiry facilitiesU.K.

(1)This section applies where universal service conditions require a designated universal service provider—

(a)to supply a directory capable of being used in connection with the use of an electronic communications network or electronic communications service; or

(b)to make available directory enquiry facilities capable of being used for purposes connected with use of such a network or service.

(2)The universal service conditions applied to the provider must include the conditions that OFCOM consider appropriate for securing that the provider does not unduly discriminate against a source of relevant information—

(a)in the compiling of the directory or the answering of directory enquiries; or

(b)in the treatment in the directory, or for the purposes of the facilities, of any relevant information from that source.

(3)In this section—

(a)references to relevant information are references to information provided for inclusion in the directory or for use in the answering of directory enquiries; and

(b)references to a source of relevant information are references to a communications provider or designated universal service provider who provides relevant information.

Commencement Information

I75S. 69 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I76S. 69 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

70[F149Review of compliance costs: universal service conditions]U.K.

(1)OFCOM may from time to time review the extent (if any) of the financial burden for a particular designated universal service provider of complying in relation to any matter with any one or more of the universal service conditions applied to him.

(2)Where—

(a)regulations under section 66 require the financial burden of so complying to be taken into account in determining whom to designate, and

(b)the regulations provide for a particular method of calculating that burden to be used for the purposes of that determination,

that must be the method of calculation applied on a review under this section.

(3)Where subsection (2) does not apply, the financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the designated universal service provider from—

(a)his designation; and

(b)the application to him of universal service conditions.

(4)After carrying out a review under this section OFCOM must either—

(a)cause the calculations made by them on the review to be audited by a person who appears to them to be independent of designated universal service providers; or

(b)themselves carry out an audit of those calculations.

(5)OFCOM must ensure, in the case of every audit carried out under subsection (4), that a report on the audit—

(a)is prepared; and

(b)if not prepared by OFCOM, is provided to them.

(6)It shall be the duty of OFCOM, in the case of every review under this section, to publish—

(a)their conclusions on the review; and

(b)a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.

(7)The publication of anything under subsection (6) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

Textual Amendments

Commencement Information

I77S. 70 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I78S. 70 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

71Sharing of burden of universal service obligationsU.K.

(1)This section applies where OFCOM—

(a)have concluded, on a review under section 70, that complying in relation to any matter with universal service conditions imposes a financial burden on a particular designated universal service provider; and

(b)have published that conclusion in accordance with that section.

(2)OFCOM must determine, in the case of the designated universal service provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.

(3)If—

(a)OFCOM determine that it would be unfair for the designated universal service provider to bear, or to continue to bear, the whole or a part of the burden, and

(b)an application for a determination under this subsection is made to OFCOM by that provider,

OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.

(4)The making of any of the following must be in accordance with regulations made by OFCOM—

(a)a determination by OFCOM of the extent of the financial burden that exists for the designated universal service provider of complying in relation to any matter with universal service conditions;

(b)an application for the purposes of subsection (3)(b);

(c)a determination by OFCOM of whether it is or would be unfair for the designated universal service provider to bear, or to continue to bear, the burden of complying in relation to any matter with universal service conditions;

(d)a determination of the extent (if any) to which that is or would be unfair.

(5)The assessment, collection and distribution of contributions under subsection (3) is not to be carried out except in accordance with a mechanism provided for in a scheme contained in regulations made by OFCOM.

(6)It shall be the duty of OFCOM to exercise their power to make regulations under this section in the manner which they consider will secure that the assessment, collection and distribution of contributions under subsection (3) is carried out—

(a)in an objective and transparent manner;

(b)in a manner that does not involve, or tend to give rise to, any undue discrimination against particular communications providers or particular designated universal service providers, or against a particular description of them; and

(c)in a manner that avoids, or (if that is impracticable) at least minimises, any distortion of competition or of customer demand.

(7)Regulations made by OFCOM under this section may provide for a scheme containing the provision mentioned in subsection (5), and for any fund set up for the purposes of such a scheme, to be administered either—

(a)by OFCOM; or

(b)by such other person as may be specified in the regulations.

(8)A person other than OFCOM is not to be specified in regulations under this section as the administrator of such a scheme or fund unless he is a person who OFCOM are satisfied is independent of both—

(a)the persons who are designated universal service providers; and

(b)communications providers to whom general conditions are applicable.

(9)Section 403 applies to the powers of OFCOM to make regulations under this section.

Commencement Information

I79S. 71 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I80S. 71 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

72[F150Report on sharing mechanism: universal service obligations]U.K.

(1)This section applies where regulations under section 71 provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.

(2)OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—

(a)every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in the universal service order;

(b)the market benefits for each designated universal service provider that have accrued to him during that period from his designation and from the application to him of universal service conditions; and

(c)the contribution made under section 71(3) by every person who has made a contribution during that period.

(3)The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71.

(4)Every subsequent report must be prepared in relation to the period of twelve months beginning with the end of the period to which the previous report applied.

(5)Every report under this section—

(a)must be prepared as soon as practicable after the end of the period to which it is to apply; and

(b)must be published as soon as practicable after its preparation is complete.

(6)OFCOM are not required under this section—

(a)to publish any matter that is confidential in accordance with subsection (7) or (8); or

(b)to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.

(7)A matter is confidential under this subsection if—

(a)it relates specifically to the affairs of a particular body; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(8)A matter is confidential under this subsection if—

(a)it relates to the private affairs of an individual; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(9)The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.

Textual Amendments

Commencement Information

I81S. 72 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I82S. 72 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F15172AReview of universal service orderU.K.

(1)The Secretary of State may direct OFCOM to review and report to the Secretary of State on any provision made, or that may be made, by the universal service order F152....

(2)The Secretary of State must consult OFCOM before giving a direction under this section.

(3)The Secretary of State must publish a direction under this section.

(4)OFCOM must publish the report made by them to the Secretary of State of a review under this section.

Textual Amendments

F151Ss. 72A, 72B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(7), 118(2)

Modifications etc. (not altering text)

72BBroadband download speeds: duty to give direction under section 72AU.K.

(1)The Secretary of State must give OFCOM a direction under section 72A if—

(a)the universal service order specifies a minimum download speed for broadband connections and services [F153at a fixed location] and the speed so specified is less than 30 megabits per second, and

(b)it appears to the Secretary of State, on the basis of information published by OFCOM, that broadband connections or services that provide a minimum download speed of at least 30 megabits per second are subscribed to for use in at least 75% of premises in the United Kingdom.

(2)The direction—

(a)must require OFCOM to review and report to the Secretary of State on whether it would be appropriate for the universal service order to specify a higher minimum download speed, and

(b)may also require OFCOM to review and report to the Secretary of State on any other matter falling within section 72A(1).]

Textual Amendments

F151Ss. 72A, 72B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(7), 118(2)

[F154Further duty to review tariffsU.K.

Textual Amendments

72CDuty to review certain tariffs that are not universal service tariffsU.K.

(1)It is the duty of OFCOM—

(a)to keep under review qualifying service tariffs, other than—

(i)universal service tariffs; or

(ii)tariffs available only to end-users who are carrying on a business; and

(b)to monitor changes to those tariffs.

(2)The reference in subsection (1) to qualifying service tariffs is a reference to the tariffs used by the providers of qualifying services.

(3)In this section—

  • “qualifying services” means—

    (a)

    broadband services at a fixed location;

    (b)

    telephone services at a fixed location; and

    (c)

    mobile services, as defined by section 65(2BB)(a);

  • “tariff” includes a pricing structure.

Social tariff conditionsU.K.

72DSocial tariff conditions: procedureU.K.

(1)The Secretary of State may direct OFCOM—

(a)to review the affordability of qualifying services for individuals on low incomes or with special social needs, with a view to considering whether to recommend to the Secretary of State the setting of a social tariff condition; and

(b)to report to the Secretary of State on the results of the review.

(2)OFCOM may in their report recommend—

(a)the setting of a social tariff condition to be applied—

(i)generally to every person providing a public electronic communications service;

(ii)generally to every person providing a public electronic communications service of a particular description specified in the report; or

(iii)to a particular person (or particular persons) specified in the report; or

(b)the modification or revocation of a social tariff condition.

(3)OFCOM may recommend the application of a social tariff condition to a particular person (or particular persons) specified in their report only in exceptional circumstances, in particular where the application of a social tariff condition to all providers of public electronic communications services of a particular description would result in an excessive administrative or financial burden on those providers, on OFCOM or on any government department.

(4)The Secretary of State may give guidance to OFCOM as to the matters to which OFCOM are to have regard—

(a)in carrying out a review under subsection (1)(a); and

(b)in making a recommendation under subsection (2).

(5)OFCOM must not recommend the setting or modification of a social tariff condition unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in section 47(2).

(6)Where section 72E does not apply to the recommendation because of subsection (2) of that section—

(a)the recommendation must relate to a social tariff condition that is to be temporary, or to a temporary modification or revocation;

(b)the recommendation must state the period for which it is proposed that the condition, or the modification or revocation, should have effect; and

(c)section 72E does not apply in relation to any recommendation by OFCOM in relation to the extension or making permanent of the temporary condition, modification or revocation.

(7)The Secretary of State may direct OFCOM to implement any recommendation made under subsection (2).

(8)The Secretary of State must publish—

(a)a direction given under subsection (1) or (7); and

(b)guidance given under subsection (4).

(9)OFCOM must publish any report made under subsection (1)(b).

(10)In this section “qualifying services” has the same meaning as in section 72C.

72EConsultation by OFCOM on proposed recommendationU.K.

(1)This section applies where—

(a)OFCOM propose to recommend the setting, modification or revocation of a social tariff condition; and

(b)the implementation of the proposed recommendation would, in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2)But this section does not apply where in OFCOM’s opinion—

(a)there are exceptional circumstances; and

(b)there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

(3)OFCOM must publish a notification—

(a)stating that they are proposing to recommend the setting, modification or revocation of the social tariff condition specified in the notification;

(b)setting out the effect of that condition, modification or revocation;

(c)giving their reasons for proposing the recommendation; and

(d)specifying the period within which representations may be made to OFCOM about their proposal.

(4)That period must end no less than 30 days after the day of the publication of the notification.

(5)But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

(6)OFCOM must consider every representation about the proposal made to them during the period specified in the notification.

(7)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.

72FSocial tariff conditions: generalU.K.

(1)The only provision that may be contained in a social tariff condition set under section 45 is provision requiring the use in relation to a qualifying service, in such cases as may be specified or described in the condition, of such social tariffs as may be so specified or described.

(2)For this purpose a “social tariff” is a special tariff that differs from the tariff provided under normal commercial conditions and is available to an individual who meets criteria relating to low income or special social needs.

(3)A social tariff condition may not be set, modified or revoked under section 45 except in accordance with a direction under section 72D(7).

(4)Subsection (3) does not apply to modifications that in the opinion of OFCOM—

(a)relate only to matters of administration; and

(b)are minor in character.

(5)If by virtue of subsection (4) OFCOM modify a social tariff condition under section 45 in the absence of a direction under section 72D(7), they must, when publishing a notification of the modification under section 48(1), send a copy of the notification to the Secretary of State.

(6)In this section “qualifying service” and “tariff” each has the same meaning as in section 72C.

72GReview of compliance costs: social tariff conditionsU.K.

(1)OFCOM may from time to time review the extent (if any) of the financial burden for a particular communications provider of complying in relation to any matter with a social tariff condition applied to the provider.

(2)The financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the communications provider from the application to the provider of the social tariff condition.

(3)After carrying out a review under this section OFCOM must either—

(a)cause the calculations made by them on the review to be audited by a person who appears to them to be independent of the communications providers who are subject to the social tariff condition; or

(b)themselves carry out an audit of those calculations.

(4)OFCOM must ensure, in the case of every audit carried out under subsection (3), that a report on the audit—

(a)is prepared; and

(b)if not prepared by OFCOM, is provided to them.

(5)It shall be the duty of OFCOM, in the case of every review under this section, to publish—

(a)their conclusions on the review; and

(b)a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.

(6)The publication of anything under subsection (5) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

72HSharing of burden of social tariff obligationsU.K.

(1)This section applies where OFCOM—

(a)have concluded, on a review under section 72G, that complying in relation to any matter with social tariff conditions imposes a financial burden on a particular communications provider (“the social tariff provider”); and

(b)have published that conclusion in accordance with that section.

(2)OFCOM must determine, in the case of the social tariff provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.

(3)If—

(a)OFCOM determine that it would be unfair for the social tariff provider to bear, or to continue to bear, the whole or a part of the burden, and

(b)an application for a determination under this subsection is made to OFCOM by that provider,

OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.

(4)Subsections (4) to (9) of section 71 apply for the purposes of this section as if—

(a)references to the designated universal service provider were references to the social tariff provider;

(b)references to universal service conditions were references to social tariff conditions;

(c)the reference to an application for the purposes of subsection (3)(b) of that section were a reference to an application for the purposes of subsection (3)(b) of this section;

(d)references to contributions under subsection (3) of that section were references to contributions under subsection (3) of this section;

(e)references to regulations made under that section were references to regulations made under subsections (4) to (7) of that section as applied by this subsection.

72IReport on sharing mechanism: social tariff obligationsU.K.

(1)This section applies where regulations made under section 71(4) to (7) as applied by section 72H(4) provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.

(2)OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—

(a)every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in a social tariff condition;

(b)the market benefits for each communications provider to whom a social tariff condition applies that have accrued to that provider during that period from the application to the provider of the social tariff condition; and

(c)the contribution made under section 72H(3) by every person who has made a contribution during that period.

(3)The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71(4) to (7) as applied by section 72H(4).

(4)Every subsequent report must be prepared in relation to the period of 12 months beginning with the end of the period to which the previous report applied.

(5)Every report under this section—

(a)must be prepared as soon as practicable after the end of the period to which it is to apply; and

(b)must be published as soon as practicable after its preparation is complete.

(6)OFCOM are not required under this section—

(a)to publish any matter that is confidential in accordance with section 72(7) or (8); or

(b)to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.

(7)The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.]

Access-related conditionsU.K.

73Permitted subject-matter of access-related conditionsU.K.

(1)The only conditions that may be set under section 45 as access-related conditions are those authorised by this section.

(2)Access-related conditions may include conditions relating to the provision of such network access and service interoperability as appears to OFCOM appropriate for the purpose of securing—

(a)efficiencyF155...;

(b)sustainable competition F156...; F157...

[F158(bza)the bringing into operation, where OFCOM consider it appropriate, of very high capacity networks;]

[F159(ba)efficient investment and innovation; and]

(c)the greatest possible benefit for the end-users of public electronic communications services.

(3)Access-related conditions may include conditions appearing to OFCOM to be appropriate for securing that persons to whom the electronic communications code applies participateF160... in arrangements for—

(a)sharing the use of electronic communications apparatus; and

(b)apportioning and making contributions towards costs incurred in relation to shared electronic communications apparatus.

[F161(3A)The power to set access-related conditions falling within subsection (3) is to be exercised for the purpose of—

(a)encouraging efficient investment in infrastructure; and

(b)promoting innovation.]

F162(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F163(4A)Access-related conditions may include conditions permitted by section 74A.]

(5)Access-related conditions may include conditions containing any provision required by section 75(2).

Textual Amendments

Commencement Information

I83S. 73 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I84S. 73 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

74Specific types of access-related conditionsU.K.

(1)The conditions that may be set by virtue of section 73(2) include conditions which, for the purpose of securing end-to-end connectivity for the end-users of public electronic communications services provided by means of a series of electronic communications networks—

(a)impose obligations on a person controlling network access to any of those networks; and

(b)require the interconnection of the networks.

[F164(1A)The conditions that may be set by virtue of section 73(2) also include conditions which impose such obligations on a person controlling network access to customers as OFCOM consider necessary for the purpose of securing service interoperability.]

(2)The conditions that may be set by virtue of section 73(2) also include such conditions imposing obligations on a person providing facilities for the use of application programme interfaces or electronic programme guides as OFCOM consider to be necessary for securing—

(a)that persons are able to have access to such programme services provided in digital form as OFCOM may determine; and

(b)that the facility for using those interfaces or guides is provided on terms which—

(i)are fair and reasonable; and

(ii)do not involve, or tend to give rise to, any undue discrimination against any person or description of persons.

[F165(2A)The conditions that may be set by virtue of section 73(2) also include conditions imposing on a person who provides an electronic communications network that includes a line or associated facility to which this subsection applies, or who owns such a line or associated facility, obligations for the purposes of giving to other persons such entitlements as OFCOM may from time to time direct as respects the availability and use of the line or associated facility in cases where OFCOM are satisfied that it would be economically inefficient or physically impracticable for those other persons to replicate the line or associated facility.

(2B)Subsection (2A) applies—

(a)to a line or associated facility that is—

(i)in a building, or

(ii)between the network termination point as determined by OFCOM and the first concentration or distribution point as so determined; and

(b)in a case where OFCOM consider, having regard where applicable to any analysis of a services market under section 79, that obligations imposed by virtue of paragraph (a) will not in their opinion sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, to a line or associated facility that is outside a building beyond the first concentration or distribution point to a point determined by OFCOM to be the closest point to end-users that is capable of hosting a sufficient number of end-user connections to be commercially viable for those seeking access.

(2C)OFCOM may not apply a condition authorised by virtue of subsection (2B)(b) to a person providing an electronic communications network if—

(a)the network concerned is not publicly funded and the person providing the network makes available a viable and similar alternative means of reaching end-users by providing any undertaking with access to a very high capacity network on fair, non-discriminatory and reasonable terms and conditions; or

(b)the obligations would compromise the economic or financial viability of the bringing of a new network into operation.

(2D)The conditions authorised by subsection (2A) may include provision—

(a)for securing fairness and reasonableness in the way in which requests for entitlements are made and responded to;

(b)for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions;

(c)requiring the person to whom the condition applies (“the relevant provider”) not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with the entitlements mentioned in subsection (2A);

(d)requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;

(e)requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which the relevant provider is willing to enter into a contract giving the entitlements mentioned in subsection (2A);

(f)requiring the terms and conditions on which the relevant provider is willing to enter into such a contract to include such terms and conditions as may be specified or described in the condition;

(g)requiring the relevant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which that provider is willing to enter into such a contract;

(h)imposing rules about the apportionment and recovery of costs.]

(3)In this section—

  • “application programme interface” means a facility for allowing software to make use, in connection with any of the matters mentioned in subsection (4), of facilities contained in other software;

  • “electronic programme guide” means a facility by means of which a person has access to any service which consists of—

    (a)

    the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services; and

    (b)

    a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

  • “end-to-end connectivity” means the facility—

    (a)

    for different end-users of the same public electronic communications service to be able to communicate with each other; and

    (b)

    for the end-users of different such services to be able, each using the service of which he is the end-user, to communicate with each other.

  • [F166“line” means any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service.]

(4)The matters mentioned in subsection (3), in the definition of “application programme interface”, are—

(a)allowing a person to have access to programme services;

(b)allowing a person, other than a communications provider or a person who makes associated facilities available, to make use of an electronic communications network by means of which a programme service is broadcast or otherwise transmitted;

(c)allowing a person to become the end-user of a description of public electronic communications service.

(5)This section is not to be construed as restricting the provision that may be made under section 73(2).

Textual Amendments

Commencement Information

I85S. 74 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I86S. 74 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F16774AAccess-related conditions in certain cases involving use of radio spectrumU.K.

(1)OFCOM may apply a condition falling within subsection (2) to a person who provides an electronic communications network (“the host network”) if it appears to OFCOM that—

(a)in a particular local area within the United Kingdom (“the relevant area”), access by end-users to electronic communications services which depend on the use of wireless telegraphy is unavailable or severely restricted;

(b)the unavailability or restriction results from the physical characteristics of the relevant area or from other characteristics of the relevant area that tend to make the bringing into operation of infrastructure uneconomic;

(c)the provider of the host network has not made network access available on fair and reasonable commercial terms and conditions to other persons providing electronic communications services; and

(d)when granting or varying the wireless telegraphy licence relating to the host network, OFCOM had made clear the possibility that a requirement to provide network access or to enter into wholesale roaming access agreements might subsequently be imposed.

(2)A condition falling within this subsection is one requiring the provider of the host network—

(a)to provide network access in relation to network elements which are not active; or

(b)to enter into wholesale roaming access agreements relating to the relevant area or any part of the relevant area, on such terms and conditions as may be specified or described in the condition, in response to a request meeting specified requirements.

(3)If OFCOM are satisfied as to the matters in subsection (1) but it appears to them that in the circumstances a condition falling within subsection (2) does not suffice to address the situation, OFCOM may also apply a condition requiring the provider of the host network to provide network access in relation to network elements which are active.

(4)The conditions authorised by subsection (2) or (3) may include any provision mentioned in subsection (2D) of section 74, reading references in that subsection to subsection (2A) of that section as references to subsection (2) or (3) of this section (as the case requires).

(5)In exercising their powers under this section, OFCOM must have regard to—

(a)the need to maximise the coverage and availability of electronic communications services throughout the [F168United Kingdom], along major transport paths and in particular territorial areas;

(b)the desirability of significantly increasing choice, and improving the quality of service, for end-users;

(c)the desirability of promoting the efficient use of radio spectrum;

(d)the technical feasibility of network access and associated conditions;

(e)the extent of infrastructure-based and service-based competition in the market concerned;

(f)the desirability of promoting technological innovation;

(g)the need to maintain incentives for investment in infrastructure.

(6)In this section “a wholesale roaming access agreement” means an agreement between the provider of the host network and the provider of a public electronic communications service that depends on the use of wireless telegraphy (“the roaming provider”) for the purpose of enabling public electronic communications services to be provided in the relevant area to the customers of the roaming provider.

Textual Amendments

74BReview of access-related conditionsU.K.

(1)This section applies to a condition set by virtue of section 73(2) or (4A) and applied to a particular person, so long as the condition remains in force, but does not apply to a condition required by section 75(2).

(2)OFCOM must within the specified period review the results of imposing the obligations in question and consider whether the condition should be modified or revoked.

(3)OFCOM must, as soon as reasonably practicable after complying with subsection (2), publish—

(a)a report on the review, and

(b)if the review concludes that the condition should be modified or revoked, a notification under section 48(1) or, where section 48A applies, section 48A(3).

(4)In this section “the specified period”, in relation to a condition, means the period of 5 years beginning with the latest of the following days—

(a)the commencement of this section;

(b)the date of the most recent notification under section 48(1) setting or modifying the condition;

(c)the date of the most recent report under subsection (3)(a) in relation to the condition.]

Textual Amendments

75Conditional access systems and access to digital servicesU.K.

F169(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)It shall be the duty of OFCOM to ensure—

(a)that access-related conditions are applied to every person who provides a conditional access system in relation to a protected programme service; and

(b)that those conditions make all such provision as is required by the provision contained F170... in Part I of [F171Annex 2 to the EECC Directive] (conditions relating to access to digital programme services) [F172as it had effect immediately before IP completion day].

[F173(2A)For the purposes of subsection (2)(b), Part 1 of Annex 2 to the EECC Directive is to be read as if—

(a)the reference to viewers and listeners in the Union were a reference to viewers and listeners in the United Kingdom;

(b)the reference to member States were a reference to OFCOM;

(c)the words “in accordance with Article 62” were omitted;

(d)in point (a), the references to Union competition law were references to any provision relating to competition that is contained in or made under an enactment.]

[F174(2B)OFCOM may also apply access-related conditions to any person who provides a conditional access system in relation to services which are not protected programme services but appear to OFCOM to be complementary to protected programme services; and those conditions may contain any provision of the kind mentioned in subsection (2)(b).]

(3)In this section—

  • “conditional access system” means any system, facility, arrangements or technical measure under or by means of which access to programme services requires—

    (a)

    a subscription to the service or to a service that includes that service; or

    (b)

    an authorisation to view it, or to listen to it, on a particular occasion;

  • “protected programme service” means a programme service the programmes included in which cannot be viewed or listened to in an intelligible form except by the use of a conditional access system.

Textual Amendments

Commencement Information

I87S. 75 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I88S. 75 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

76Modification and revocation of conditions imposed under s. 75U.K.

(1)This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).

(2)OFCOM must not give effect to a proposal to modify or revoke any of the conditions unless—

(a)they have carried out an analysis for the purpose of determining in accordance with this Chapter whether that person is or remains a person on whom SMP services conditions are capable of being imposed;

(b)they have determined in consequence of that analysis that he is not; and

(c)they are satisfied that the modification or revocation will not have an adverse effect on any or all of the matters mentioned in subsection (3).

(3)Those matters are—

(a)the accessibility to any persons of services that are for the time being included in the list of must-carry services in section 64;

(b)the prospects for effective competition in the market for programme services provided by being broadcast or otherwise transmitted in digital form; and

(c)the prospects for effective competition in the markets for conditional access systems and other associated facilities.

(4)In this section “conditional access system” has the same meaning as in section 75.

Commencement Information

I89S. 76 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I90S. 76 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F17576A.Information about electronic communications apparatus available for shared useU.K.

(1)OFCOM may make available to such persons as they consider appropriate information about electronic communications apparatus that in OFCOM’s opinion is suitable for shared use.

(2)OFCOM may impose such restrictions as they consider appropriate on the use and further disclosure of information made available under this section.]

Textual Amendments

Privileged supplier conditionsU.K.

77Imposition of privileged supplier conditionsU.K.

(1)It shall be the duty of OFCOM to secure that privileged supplier conditions containing all such provision falling within subsection (3) as they consider appropriate are applied to every public communications provider to whom this section applies.

(2)This section applies to every public communications provider who—

(a)enjoys special or exclusive rights in relation to the provision of any non-communications services; and

(b)is not such a provider in respect only of associated facilities.

(3)The provision that may be contained in a condition set under section 45 as a privileged supplier condition is any provision that OFCOM consider appropriate for any one or more of the following purposes—

(a)requiring the provider to whom it applies to keep separate accounts in relation to his public electronic communications network or public electronic communications service and other matters;

(b)requiring that provider to submit the accounts of the different parts of his undertaking, and any financial report relating to a part of that undertaking, to a qualified auditor for auditing;

(c)requiring the accounts of the different parts of his undertaking to be published;

(d)securing, by means other than the keeping of separate accounts, the structural separation of the different parts of his undertaking.

(4)OFCOM are not required under this section to apply a condition to a person where they are satisfied that that person has an annual turnover in relation to all his communications activities that is less than [F176£45 million].

(5)Where in a case falling within subsection (4) OFCOM are not required to apply a privileged supplier condition to a person, they may apply such a condition to him if they think fit.

(6)The reference in subsection (4) to a person’s communications activities is a reference to any activities of his that consist in, or are connected with, either or both of the following—

(a)the provision of any one or more electronic communications networks;

(b)the provision of any one or more electronic communications services.

(7)The making, for the purposes of subsection (4), of—

(a)a determination of the period in respect of which a person’s annual turnover in relation to any activities is computed, and

(b)a determination of the amount in [F177sterling] of that turnover for any period,

must be in accordance with such rules as OFCOM consider to be reasonable.

(8)OFCOM must publish any rules made by them for the purposes of subsection (7) in such manner as they consider appropriate for bringing them to the attention of the persons who, in their opinion, are likely to be affected by them.

(9)In this section—

  • “non-communications services”, in relation to a person, means services other than those consisting in, or connected with, the provision by him of—

    (a)

    an electronic communications network; or

    (b)

    an electronic communications service;

  • [F178“qualified auditor” means a person who—

    (a)

    is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and

    (b)

    if the appointment to carry out such auditing as is mentioned in subsection (3)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement);]

  • “special or exclusive rights” has the same meaning as in [F179Article 106 of the Treaty on the Functioning of the European Union] .

Textual Amendments

Commencement Information

I91S. 77 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I92S. 77 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

SMP conditions: procedureU.K.

78Circumstances required for the setting of SMP conditionsU.K.

(1)For the purposes of this Chapter a person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.

[F180(2)References in this section to dominance of a market are to be construed, so far as it is appropriate to do so for the purposes of this Chapter, in the same way as the reference in section 18(1) of the Competition Act 1998 to a dominant position in a market.]

(3)A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.

(4)A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.

F181(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I93S. 78 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I94S. 78 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

79Market power determinationsU.K.

(1)Before making a market power determination, OFCOM must—

(a)identify (by reference, in particular, to area and locality) the markets which in their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and

(b)carry out an analysis of the identified markets.

[F182(1A)In identifying or analysing a services market for the purposes of this Chapter, OFCOM must conduct a forward-looking assessment of the market, taking into account expected or foreseeable developments that may affect competition in the market.]

F183(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F184(2ZA)In identifying or analysing a services market for the purposes of this Chapter, OFCOM may have regard to EECC materials relating to market identification and analysis.]

[F185(2A)In determining whether to identify a market for the purpose of considering whether to make a market power determination, OFCOM must consider whether the criteria in subsection (2B) are met; and OFCOM may not identify that market for that purpose unless they consider that the criteria are met.

(2B)Those criteria are—

(a)that high and non-transitory structural, legal or regulatory barriers to entry are present;

(b)that there is a market structure which, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry, does not tend towards effective competition within such period as OFCOM determine to be appropriate in relation to the review;

(c)that competition law alone is insufficient adequately to address the identified market failure.

[F186(2BA)In considering whether to make or revise a market power determination in relation to a services market, OFCOM may have regard to EECC materials relating to market analysis or the determination of what constitutes significant market power.]

F187(2C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F183(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The way in which—

(a)a market is to be identified for the purposes of this section, or

(b)a market power determination is to be made,

is by the publication of a notification containing the identification or determination.

(5)Notifications for the purposes of subsection (4)—

(a)may be given separately;

(b)may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or

(c)may be contained in a single notification under section 48(1) with respect to the setting or modification of an SMP condition and either—

(i)the making of the market power determination by reference to which OFCOM set or modify that condition; or

(ii)the making of that market power determination and the identification of the market in relation to which they make that determination.

(6)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

[F188(6A)In this section “EECC materials” means recommendations or guidelines published by the European Commission, and guidelines published by BEREC, under the Framework Directive or the EECC Directive (including those published after IP completion day).]

F183(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I95S. 79 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I96S. 79 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

80Proposals for identifying markets and for market power determinationsU.K.

[F189(1)Where section 80A applies, OFCOM must comply with the applicable requirements of that section F190... before—

(a)identifying a market for the purposes of making a market power determination, or

(b)making a market power determination.

(1A)Where section 80A does not apply because of subsection (2) of that section—

(a)any identification of a market or market power determination must be temporary; and

(b)the notification published under section 79(4) containing the identification or determination must state the period for which the identification or determination is to have effect.

(1B)Where OFCOM propose to extend or make permanent any such temporary identification or determination—

(a)[F191section 80A does] not apply in relation to the proposal; F192...

F192(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F193(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I97S. 80 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I98S. 80 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F19480A. [F195Consultation] for market identifications and market power determinationsU.K.

(1)This section applies where—

(a)OFCOM propose—

(i)to identify a market for the purposes of making a market power determination; or

(ii)to make a market power determination; and

(b)(in the case of a services market) the proposed identification or determination is in OFCOM’s opinion likely to result in the setting, modification or revocation of SMP services conditions that will have a significant impact on the market.

(2)But this section does not apply where F196... in OFCOM’s opinion—

(a)there are exceptional circumstances; and

(b)there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

(3)OFCOM must publish a notification of what they are proposing to do.

(4)Notifications for the purposes of subsection (3)—

(a)may be given separately;

(b)may be contained in a single notification relating to both the identification of a market and the making of a market power determination in relation to that market; or

(c)may be contained in a single notification under section 48A(3) with respect to the setting or modification of an SMP condition and either—

(i)the making of the market power determination by reference to which OFCOM are proposing to set or modify that condition; or

(ii)the making of that market power determination and the identification of the market in relation to which they are proposing to make that determination.

(5)A notification under this section relating to a proposal to identify a market or to make a market power determination must—

(a)state that OFCOM are proposing to identify that market or to make that market power determination;

(b)set out the effect of the proposal;

(c)give their reasons for making the proposal; and

(d)specify the period within which representations may be made to OFCOM about their proposal.

(6)That period must be a period of not less than [F19730 days] after the day of the publication of the notification.

(7)But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM considers reasonable in those circumstances.

(8)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

(9)OFCOM must—

(a)consider every representation about the proposal made to them during the period specified in the notification; and

(b)have regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(10)F198... OFCOM may then give effect to [F199the proposal], with any modifications that appear to OFCOM to be appropriate.]

Textual Amendments

F20080B. EU consultation for market identifications and market power determinationsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F20181Delivery of copies of notifications under sections 79 and 80AU.K.

(1)OFCOM must send to the Secretary of State a copy of every notification published under section 79(4) or 80A(3).

F202(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F202(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F202(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

Commencement Information

I99S. 81 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I100S. 81 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F20382European Commission’s powers in respect of proposalsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I101S. 82 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I102S. 82 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F20483Special rules for transnational marketsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

84Review of services market identifications and determinationsU.K.

(1)This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.

(2)OFCOM [F205must, when required to do so by section 84A and at such other times as they may consider appropriate,] carry out further analyses of the identified market for one or both of the following purposes—

(a)reviewing market power determinations made on the basis of an earlier analysis;

(b)deciding whether to make proposals for the modification of SMP conditions set by reference to a market power determination made on such a basis.

F206(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they must revoke every SMP services condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(5)Before carrying out a further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out an earlier analysis.

(6)Where, on such a review, OFCOM conclude that the appropriate markets have changed—

(a)they must identify the markets they now consider to be the appropriate ones; and

(b)those markets shall be the identified markets for the purposes of the further analysis.

(7)Sections 79 to [F20781] apply—

(a)in relation to the identification of a services market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b)in relation to the review of such a determination, as they apply in relation to the making of such a determination.

Textual Amendments

Commencement Information

I103S. 84 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I104S. 84 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F20884A.Timing of services market identifications and determinationsU.K.

(1)This section makes provision about the exercise by OFCOM of their powers—

(a)to identify and analyse services markets;

(b)to make and review market power determinations in respect of such markets; and

(c)to set, modify and revoke SMP services conditions by reference to such determinations.

F209(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where, following the identification and analysis of a services market, OFCOM have made a market power determination in relation to it, they must ensure that within the specified period they have—

(a)carried out a further analysis of the market and reviewed the identification and determination made on the basis of the earlier analysis; F210...

F210(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (3) applies only where the market power determination was made after 25 May 2011.

F211(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F211(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F212(7)In subsection (3), “the specified period” means the period of 5 years from the publication under section 79(4) of the notification of the market power determination made on the basis of the earlier analysis, but this is subject to subsection (8).

(8)If, in relation to an analysis and review that would otherwise be required within the period mentioned in subsection (7), OFCOM are of the opinion that exceptionally a longer period is justified, OFCOM may, by publishing a statement of the reasons for their opinion, extend the specified period by up to one additional year.]]

Textual Amendments

85Review of apparatus market identifications and determinationsU.K.

(1)This section applies where OFCOM have identified and analysed an apparatus market for the purposes of making a market power determination.

(2)OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—

(a)reviewing market power determinations made on the basis of an earlier analysis;

(b)deciding whether to make proposals for the modification of SMP conditions set by reference to any such market power determination.

(3)Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they shall revoke every SMP apparatus condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(4)Before carrying out any further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out any earlier analysis.

(5)Where on such a review OFCOM conclude that the appropriate markets have changed—

(a)they shall identify the markets they now consider to be the appropriate ones; and

(b)those markets shall be the identified markets for the purposes of the further analysis.

(6)Where on such a review OFCOM conclude that there is no person at all with significant market power in relation to the identified market—

(a)they must so inform the Secretary of State; and

(b)the Secretary of State may by order remove or restrict OFCOM’s power under this Chapter to set SMP apparatus conditions by reference to that market.

(7)Sections 79, [F21380, 80A and 81(1)] apply—

(a)in relation to the identification of a apparatus market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b)in relation to the review of such a determination, as they apply in relation to the making of such a determination.

Textual Amendments

Commencement Information

I105S. 85 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I106S. 85 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

86Cases where review requiredU.K.

(1)OFCOM must not set an SMP services condition by a notification which does not also make the market power determination by reference to which the condition is set unless—

(a)the condition is set by reference to a market power determination which has been reviewed under section 84 and, in consequence of that review, is confirmed in the notification setting the condition; or

(b)the condition is set by reference to a market power determination made in relation to a market in which OFCOM are satisfied there has been no material change since the determination was made.

(2)OFCOM must not modify or revoke SMP services conditions applying to a person except in a case falling within subsection (3) or (4).

(3)The first case is where, for the purpose of determining whether to make the modification or revocation, OFCOM have—

(a)carried out a further analysis under section 84 of the market in question; and

(b)reviewed the market power determination for the time being in force in that person’s case.

(4)The second case is where OFCOM are satisfied that there has not—

(a)in the case of an unmodified condition, since the condition was set, or

(b)in any other case, since the condition was last modified,

been a material change in the market identified or otherwise used for the purposes of the market power determination by reference to which the condition was set or last modified.

(5)OFCOM must not modify SMP apparatus conditions applying to a person except where, for the purpose of determining whether to make the modification or revocation, they have—

(a)carried out a further analysis under section 85 of the market in question; and

(b)reviewed the market power determination for the time being in force in that person’s case.

(6)A change is a material change for the purposes of subsection (1) or (4) if it is one that is material to—

(a)the setting of the condition in question; or

(b)the modification or revocation in question.

Commencement Information

I107S. 86 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I108S. 86 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

SMP services conditions: subject-matterU.K.

87Conditions about network access etc.U.K.

(1)Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—

(a)set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and

(b)apply those conditions to that person.

(2)This section applies to—

(a)a person who provides a public electronic communications network; and

(b)a person who makes available facilities that are associated facilities by reference to such a network.

(3)This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects—

(a)the provision of network access to the relevant network;

(b)the use of the relevant network; and

(c)the availability of the relevant facilities.

[F214(3A)The assets as respects which entitlements may be given under subsection (3) include, in the case of assets which are not active, any which, although forming part of the relevant network or the relevant facilities, do not form part of the services market to which the determination relates.]

(4)In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—

(a)the technical and economic viability [F215(including the viability of other network access products, whether provided by the dominant provider or another person)] , having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;

(b)the feasibility of the provision of the proposed network access;

[F216(ba)any technological developments that, in OFCOM’s opinion, are likely to affect the design and management of the relevant network or (as the case may be) the relevant facilities;

(bb)the need to ensure that the provision of the proposed network access does not have the effect of favouring one form of technology over another in relation to the design and management of electronic communications networks;]

(c)the investment made by the person initially providing or making available the network or other facility in respect of which an entitlement to network access is proposed [F217(taking account of any public investment made)];

(d)the need to secure effective competition [F218(including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition)] in the long term [F219and to support innovative business models that support sustainable competition]; [F220and]

(e)any rights to intellectual property that are relevant to the proposal; F221...

F221(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The conditions authorised by subsection (3) may include provision—

(a)for securing fairness and reasonableness in the way in which requests for network access are made and responded to; and

(b)for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions.

[F222(5A)The SMP conditions authorised by this section also include a condition which—

(a)is of a technical or operational nature; and

(b)appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with a condition under subsection (3).

(5B)A condition falling within subsection (5A) may provide that compliance with the condition is not required unless a person on whom an entitlement is or may be conferred in pursuance of a requirement imposed by a condition under subsection (3) fulfils such technical or operational requirements as may be specified by OFCOM.

(5C)It shall be the duty of OFCOM, when setting a condition falling within subsection (5A), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.]

(6)The SMP conditions authorised by this section also include one or more of the following—

(a)a condition requiring the dominant provider not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with network access to the relevant network or with the availability of the relevant facilities;

(b)a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;

(c)a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which he is willing to enter into an access contract;

(d)a condition requiring the terms and conditions on which the dominant provider is willing to enter into an access contract to include such terms and conditions as may be specified or described in the condition;

(e)a condition requiring the dominant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which he is willing to enter into an access contract.

(7)The SMP conditions authorised by this section also include conditions requiring the dominant provider to maintain a separation for accounting purposes between such different matters relating—

(a)to network access to the relevant network, or

(b)to the availability of the relevant facilities,

as OFCOM may from time to time direct.

(8)The SMP conditions authorised by subsection (7) include conditions imposing requirements about the accounting methods to be used in maintaining the separation.

(9)The SMP conditions authorised by this section also include (subject to section 88) conditions imposing on the dominant provider—

(a)such price controls as OFCOM may direct in relation to matters connected with the provision of network access to the relevant network, or with the availability of the relevant facilities;

(b)such rules as they may make in relation to those matters about the recovery of costs and cost orientation;

(c)such rules as they may make for those purposes about the use of cost accounting systems; and

(d)obligations to adjust prices in accordance with such directions given by OFCOM as they may consider appropriate.

(10)The SMP conditions authorised by subsection (9) include conditions requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations imposed by virtue of that subsection.

(11)Where OFCOM set a condition authorised by this section which imposes rules on the dominant provider about the use of cost accounting systems, it shall be their duty also to set, and to apply to him, an SMP condition which imposes on him an obligation—

(a)to make arrangements for a description to be made available to the public of the cost accounting system used in pursuance of that condition; and

(b)to include in that description details of—

(i)the main categories under which costs are brought into account for the purposes of that system; and

(ii)the rules applied for the purposes of that system with respect to the allocation of costs.

(12)In this section—

  • “access contract” means—

    (a)

    a contract for the provision by a person to whom this section applies to another person of network access to the relevant network; or

    (b)

    a contract under which the relevant facilities are made available by a person to whom this section applies to another person;

  • “the relevant facilities”, in relation to a person to whom this section applies, means the associated facilities made available by that person in relation to a public electronic communications network; and

  • “the relevant network”, in relation to such a person, means the public electronic communications network provided by him.

Textual Amendments

Commencement Information

I109S. 87 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I110S. 87 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

88Conditions about network access pricing etc.U.K.

(1)OFCOM are not to set an SMP condition falling within section 87(9) except where—

(a)it appears to them from the market analysis carried out for the purpose of setting that condition that there is a relevant risk of adverse effects arising from price distortion; and

(b)it also appears to them that the setting of the condition is appropriate for the purposes of—

(i)promoting efficiency;

(ii)promoting sustainable competition; F223...

(iii)conferring the greatest possible benefits on the end-users of public electronic communications services [F224having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and]

[F225(iv)where relevant to the market analysis, promoting the availability and use of new and enhanced networks.]

[F226(1A)Even if the tests in subsection (1)(a) and (b) are satisfied, OFCOM may consider not imposing an SMP condition if they consider—

(a)that a demonstrable retail price constraint is present; and

(b)that obligations imposed by SMP conditions not falling within section 87(9) ensure effective and non-discriminatory access.]

[F227(2)In setting an SMP condition falling within section 87(9), OFCOM must take account of—

(a)the extent of the investment in the matters to which the condition relates of the person to whom it is to apply; and

(b)where the condition involves price controls on the provision of network access to existing network elements, the benefits of predictable and stable wholesale prices in ensuring—

(i)efficient market entry; and

(ii)sufficient incentives for all undertakings to bring into operation new and enhanced networks.]

(3)For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—

(a)so fix and maintain some or all of his prices at an excessively high level, or

(b)so impose a price squeeze,

as to have adverse consequences for end-users of public electronic communications services.

(4)In considering the matters mentioned in subsection (1)(b) OFCOM may—

(a)have regard to the prices at which services are available in comparable competitive markets;

(b)determine what they consider to represent efficiency by using such cost accounting methods as they think fit.

(5)In this section “the dominant provider” has the same meaning as in section 87.

Textual Amendments

Commencement Information

I111S. 88 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I112S. 88 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

89Conditions about network access in exceptional casesU.K.

(1)This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

(b)that person is the provider of an electronic communications network or a person who makes associated facilities available; and

(c)OFCOM consider that there are exceptional circumstances making it appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.

(2)OFCOM may set the additional SMP conditions and apply them to the dominant provider F228...

Textual Amendments

Commencement Information

I113S. 89 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I114S. 89 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F22989A.Functional separationU.K.

(1)This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

(b)that person is the provider of a public electronic communications network or a person who makes available facilities that are associated facilities by reference to such a network;

(c)it appears to OFCOM that the setting of conditions applying to the dominant provider under section 87 (and, where OFCOM think it appropriate, section 88) has failed to address competition problems identified by OFCOM in carrying out a market analysis for the purpose of setting or modifying those conditions; and

(d)OFCOM have identified important and persisting competition problems or market failures in relation to the provision of network access.

(2)OFCOM may set an SMP services condition (referred to in this section and section 89B as a “functional separation condition”) requiring the dominant provider to transfer activities relating to the provision of network access to an independently operating business entity which is a part of the dominant provider.

(3)Where a functional separation condition is imposed on the dominant provider, the products or services specified in the condition must be given to the dominant provider and to other persons—

(a)on the same timescales, terms and conditions, including those relating to price and service levels, and

(b)by means of the same systems and processes.

(4)A functional separation condition must, where relevant, specify—

(a)the precise nature and level of separation, specifying in particular the legal status of the entity to which activities are transferred;

(b)an identification of the assets of that entity and the products or services to be supplied by it;

(c)the governance arrangements (including incentive structures) to ensure the independence of the staff employed in that entity;

(d)rules for ensuring compliance with the obligations imposed by the condition;

(e)rules for ensuring transparency of operational procedures, in particular towards persons, other than the dominant provider, who in OFCOM’s opinion are likely to be affected by the condition; and

(f)a monitoring programme to ensure compliance, including a requirement for the publication of an annual report.

Textual Amendments

[F23089B.Functional separation conditions: matters to be considered by OFCOMU.K.

(1)This section applies where OFCOM propose to apply a functional separation condition to a person.

(2)OFCOM must consider the expected impact of the condition on—

(a)OFCOM;

(b)the person on whom the condition is to be imposed;

(c)the staff of the entity to which activities are to be transferred;

(d)the electronic communications sector as a whole;

(e)incentives to invest in the electronic communications sector, particularly with regard to the need to ensure social and territorial cohesion;

(f)competition in the services market affected by the condition; and

(g)other persons who in OFCOM's opinion are likely to be affected by the condition, including, in particular, consumers.

(3)OFCOM must also consider—

(a)evidence relevant to the conclusions mentioned in section 89A(1)(c) and (d);

(b)whether there is little or no prospect of effective and sustainable infrastructure based competition within a reasonable timeframe;

(c)whether a functional separation condition would be the most effective means of addressing important and persisting competition problems or market failures identified by OFCOM; and

(d)the impact that the obligations contained in the condition are likely to have on SMP services conditions set in relation to the services markets which, in OFCOM's opinion, will be affected by the proposed condition.]

Textual Amendments

89C.Obligation to notify OFCOM of voluntary separationU.K.

(1)This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

(b)the dominant provider is the provider of a public electronic communications network or a person who makes associated facilities available; and

(c)the dominant provider decides to transfer a substantial part or all of the dominant provider’s local access network assets to an independently operating business entity (which may be a part of the dominant provider or another person) for the purpose specified in subsection (2).

(2)That purpose is to use the assets to provide products or services to the dominant provider and to other persons—

(a)on the same timescales, terms and conditions, including those relating to price and service levels; and

(b)by means of the same systems and processes.

(3)The dominant provider must notify OFCOM of—

(a)the decision to transfer the assets;

(b)any changes to its intentions; and

(c)the taking effect of the transfer.

(4)Where OFCOM receive a notification under this section, they must, as soon as reasonably practicable, consider the impact that the transfer is likely to have on SMP services conditions set in relation to the services markets which, in OFCOM’s opinion, will be affected by the proposed transfer.]

Textual Amendments

F23190Conditions about carrier selection and pre-selectionU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I115S. 90 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I116S. 90 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

91Conditions about regulation of services etc. for end-usersU.K.

(1)Where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market (“the relevant market”),

(b)the relevant market is one for the end-users of public electronic communications services that are available in that market, and

(c)it appears to OFCOM that the test in subsection (2) is satisfied in the case of that provider,

they shall set, and apply to that provider, such SMP conditions authorised by this section as they consider appropriate.

(2)That test is that OFCOM are unable, by the setting of conditions of the sorts specified in subsection (3), to perform, or fully to perform, their duties under section 4 in relation to the market situation in the relevant market.

(3)The sorts of conditions referred to in subsection (2) are—

(a)access-related conditions; and

(b)SMP conditions authorised or required by sections 87 to [F23289] .

(4)The reference in subsection (2) to the market situation in the relevant market is a reference to the situation revealed by such market analyses of that market as may have been carried out for the purposes of this Chapter.

(5)The SMP conditions authorised by this section are conditions imposing on the dominant provider such regulatory controls as OFCOM may from time to time direct in relation to the provision by that provider of any public electronic communications service to the end-users of that service.

(6)Where OFCOM set a condition which is authorised by this section and imposes regulatory control on tariffs or other matters to which costs are relevant, they shall also set, and apply to the dominant provider, an SMP condition which requires him, to the extent that they consider it appropriate—

(a)to use such cost accounting systems as may be determined by them;

(b)to have the use of those systems audited annually by a qualified auditor; and

(c)to publish an annual statement about compliance by the dominant provider with the obligations imposed by virtue of paragraph (a).

F233(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F234(8)In this section “qualified auditor” means a person who—

(a)is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and

(b)if the appointment to carry out such auditing as is mentioned in subsection (6)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).]

Textual Amendments

Commencement Information

I117S. 91 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I118S. 91 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F235SMP services conditions: wholesale-only undertakingsU.K.

Textual Amendments

91ASMP services conditions: wholesale-only undertakingsU.K.

(1)Subsection (2) applies where—

(a)OFCOM make or have made a market power determination that a person (“the dominant provider”) has significant market power in an identified services market; and

(b)the dominant provider is not engaged in any of the following—

(i)the provision of a public electronic communications network to end-users of public electronic communications services;

(ii)the provision of a public electronic communications service to end-users;

(iii)the making available of associated facilities to end-users of public electronic communications services.

(2)OFCOM must consider whether the following tests are satisfied in the case of the dominant provider.

(3)The first test is that none of the persons specified in subsection (4) has activities in any retail market for electronic communications services provided to end-users in the [F236United Kingdom].

(4)Those persons are—

(a)the dominant provider;

(b)any subsidiary undertaking or parent undertaking of the dominant provider;

(c)any subsidiary undertaking of a parent undertaking of the dominant provider.

(5)The second test is that the dominant provider is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which amounts in effect to an exclusive agreement.

(6)If OFCOM are satisfied that both those tests are satisfied, OFCOM are not to apply to the dominant provider any SMP condition except one or more of the following—

(a)a condition authorised by section 87(3);

(b)a condition authorised by section 87(6)(a);

(c)a condition which is authorised by section 87(9) and relates to fair and reasonable pricing in connection with the provision of network access to the dominant provider’s network.

(7)Subsection (6) does not restrict OFCOM’s powers in a case where, by reason of the terms and conditions on which the dominant provider is willing to enter into an access contract, OFCOM conclude that competition problems have arisen or are likely to arise to the detriment of end-users.

(8)The dominant provider must notify OFCOM as soon as reasonably practicable of any change in circumstances relevant to the application of the tests in subsections (3) and (5).

(9)If, as a result of a notification under subsection (8) or otherwise, OFCOM determine that either of the tests in subsections (3) and (5) is no longer satisfied in relation to the dominant provider, OFCOM must consider whether to set or modify SMP conditions applying to the dominant provider.

(10)In this section “parent undertaking” and “subsidiary undertaking” each has the meaning given by section 1162 of the Companies Act 2006.]

Textual Amendments

F23792Conditions about leased linesU.K.

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Textual Amendments

SMP apparatus conditions: subject-matterU.K.

93Conditions about apparatus supplyU.K.

(1)Where OFCOM have made a determination that a person (“the dominant supplier”) has significant market power in an identified apparatus market, they may—

(a)set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the supply of electronic communications apparatus; and

(b)apply those conditions to that person.

(2)This section authorises the setting of SMP conditions of each of the following descriptions—

(a)conditions requiring the dominant supplier to maintain such a separation for accounting purposes between matters relating to the supply of electronic communications apparatus and other matters as may be described in the conditions;

(b)conditions imposing requirements about the accounting methods to be used in maintaining the separation; and

(c)conditions imposing such rules as OFCOM may make, for the purpose of securing the maintenance of the separation, about the use of cost accounting systems.

(3)This section also authorises the setting of SMP conditions imposing price controls in relation to the hiring of telephones which are hardwired to an electronic communications network.

(4)Conditions set under this section must not make provision in relation to the supply of electronic communications apparatus unless the apparatus is of a description of apparatus as respects the supply of which the dominant supplier has been found to have significant market power.

(5)For the purposes of this section a telephone is hardwired to an electronic communications network where, in order for it to be used with that network—

(a)it has to be physically attached to apparatus comprised in the network; and

(b)the attachment has to be effected by a process that requires the use of a tool.

Commencement Information

I119S. 93 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I120S. 93 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F238Commitments by network providerU.K.

Textual Amendments

93ANotification to OFCOM of proposed commitmentsU.K.

(1)This section applies where OFCOM have made, or are considering the making of, a determination that a person who provides a public electronic communications network (“the dominant provider”) has significant market power in an identified services market.

(2)The dominant provider may notify OFCOM of a proposal to address the competition problems that are identified in the market power determination, or the possible competition problems that are identified in the proposal for a market power determination, by making commitments to provide network access to, or co-investment in, that network.

(3)The proposal must—

(a)be sufficiently detailed to enable OFCOM to undertake a detailed consideration under subsection (6);

(b)specify the period during which the dominant provider is willing to be bound by the commitments; and

(c)comply with such other requirements as OFCOM may publish for the purposes of this subsection.

(4)If the proposal complies with subsection (3), OFCOM must publish a notification of the proposal.

(5)The notification must—

(a)state that OFCOM are considering whether to accept the proposed commitments;

(b)set out the effect of the proposal and an initial analysis by OFCOM of the proposal; and

(c)specify the period within which representations may be made to OFCOM about the proposal and analysis.

(6)OFCOM must—

(a)consider every representation about the proposal and analysis made to them during the period specified in the notification under subsection (5);

(b)notify the dominant provider of their opinion—

(i)that the proposal is adequate to address the competition problems, or possible competition problems, mentioned in subsection (2); or

(ii)that if specified changes were made the proposal would be adequate to address those problems; or

(iii)that for specified reasons the proposal is inadequate to address those problems; and

(c)publish the notification given under paragraph (b).

(7)The dominant provider may then revise the proposal in the light of OFCOM’s opinion.

(8)If the dominant provider notifies OFCOM that the dominant provider is willing to implement the proposal, or the proposal as revised under subsection (7), OFCOM may decide to make the commitments binding, for such period as they may specify in the decision.

(9)A decision under subsection (8) (referred to in this Chapter as a “commitments decision”) takes effect on being notified by OFCOM to the dominant provider and published by OFCOM.

(10)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

93BNotification of proposed commitments relating to very high capacity networkU.K.

(1)Section 93A has effect subject to the provisions of this section in a case where—

(a)the dominant provider referred to in section 93A(1) proposes commitments which include a commitment to open up investment in a network to co-investment (“a co-investment commitment”);

(b)the network is a very high capacity network which consists of optical fibre elements—

(i)up to the premises of the end-user or, where this is technically impracticable, up to the immediate proximity of those premises; or

(ii)up to the base station; and

(c)the bringing into operation of the network was not publicly announced before 21 December 2018;

(d)the dominant provider has notified OFCOM under subsection (2) of section 93A of a proposal complying with subsection (3) of that section.

(2)OFCOM are not required to publish under section 93A(4) a notification complying with section 93A(5) in relation to the proposed co-investment commitment if in their opinion the proposal does not address all the matters specified in subsection (3) of this section.

(3)In considering the proposed co-investment commitment under section 93A(6), OFCOM must, in particular, consider whether in their opinion the offer to co-invest satisfies the following requirements—

(a)it is open at any moment during the lifetime of the network to any provider of electronic communications networks or services;

(b)it would allow other co-investors who are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the dominant provider is active on terms which include—

(i)fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to co-investment;

(ii)flexibility in terms of the value and timing of the participation of each co-investor;

(iii)the possibility of increasing such participation in the future;

(iv)reciprocal rights awarded by the co-investors after the bringing into operation of the co-invested infrastructure;

(c)it is made public by the dominant provider in a timely manner and, if the dominant provider is not a wholesale-only undertaking, within such period of not less than 6 months before the bringing into operation of the new network as OFCOM consider appropriate;

(d)persons seeking access to the network but not participating in the co-investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the bringing into operation of the network;

(e)it is accompanied by a mechanism of adaptation over time, confirmed by OFCOM in light of developments on the related retail markets, that—

(i)maintains the incentives to participate in the co-investment; and

(ii)ensures that persons seeking access at any time have access to the very high capacity elements of the network on transparent and non-discriminatory terms which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the bringing into operation of the network and take into account the competitive situation in retail markets;

(f)it complies with—

(i)the criteria set out in points (a) to (d) of Annex 4 to the EECC Directive; and

(ii)any additional criteria that OFCOM consider necessary to ensure accessibility of potential investors to the co-investment and publish for the purposes of this section; and

(g)it is made in good faith.

(4)OFCOM must, by a commitments decision, make the co-investment commitment binding if—

(a)in considering the proposal under section 93A(6), they determine that the co-investment commitment—

(i)satisfies (or, if changes specified under section 93A(6) were made, would satisfy) the requirements in subsection (3); and

(ii)is adequate (or, if changes so specified were made, would be adequate) to address the competition problems, or possible competition problems, mentioned in section 93A(2); and

(b)the dominant provider notifies OFCOM under section 93A(8) in relation to the proposal (or, as the case requires, the proposal as revised under section 93A(7)).

(5)In the case of a co-investment commitment, the period specified by OFCOM in a commitments decision must be at least 7 years.

[F239(6)In determining whether the requirements of subsection (3) are met, OFCOM may have regard to any guidelines that are from time to time published by BEREC under Article 76(4) of the EECC Directive (whether before or after IP completion day).]

Textual Amendments

93CGiving effect to commitments decisionU.K.

(1)It is the duty of the dominant provider to comply with the commitments specified in a commitments decision during the period specified in the decision.

(2)As soon as practicable after making a commitments decision in a case where SMP services conditions have been applied or would have been applied to the dominant provider, OFCOM must review the appropriateness, having regard to the commitments decision, of the conditions that have been or would have been applied.

(3)In carrying out the review, the matters to which OFCOM are to have regard include—

(a)evidence regarding the fair and reasonable character of the commitments;

(b)whether the commitments involve obligations to all market participants;

(c)whether the commitments promote the timely availability of access under fair, reasonable and non-discriminatory conditions, including access to very high capacity networks, before the launch of related retail services;

(d)the overall adequacy of the commitments to enable sustainable competition on downstream markets and to facilitate co-operative deployment and take-up of very high capacity networks in the interests of end-users.

(4)If, in the case of a commitment made binding as a result of section 93B(4), at least one person has entered into an agreement for co-investment with the dominant provider under the commitments decision, OFCOM must take steps to revoke or modify any SMP services conditions that they consider to be affected by the decision.

(5)Subsection (4) does not apply where, in OFCOM’s opinion, the characteristics of the services market to which the determination referred to in section 93A(1) relates are such that, despite the commitments to which effect is given by the commitments decision, the SMP services condition continues to be necessary in order to address significant competition problems.

F240(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)In this section “dominant provider” means the person who made the proposal to which the commitments decision relates.

Textual Amendments

93DModification of commitmentsU.K.

(1)This section applies where a commitments decision has effect in relation to a person who provides a public electronic communications network (“the dominant provider”).

(2)The dominant provider may notify OFCOM of a proposed modification of the commitments that are made binding by the commitments decision.

(3)In a case where OFCOM consider that the modification would not have a material effect, they may make a decision under section 93A(8) relating to the commitments as proposed to be modified.

(4)In any other case, OFCOM must notify the dominant provider of their opinion that the proposed modification would have a material effect; and subsections (2) to (10) of section 93A then apply in relation to the commitments as proposed to be modified.]

Enforcement of conditionsU.K.

94Notification of contravention of [F241SMP apparatus] conditionsU.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, [F242an SMP apparatus condition] 5, 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 condition and 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).

(3)Those things are—

(a)making representations about the matters notified;

(b)complying with notified conditions of which he remains in contravention; and

(c)remedying the consequences of notified contraventions.

(4)Subject to subsections (5) to (7) and section 98(3), 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—

(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.

(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

(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.

(9)Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

(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

(c)the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

[F243(10)Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

(10A)OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.

(10B)In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.]

(11)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 condition; 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 95(2) or 96(2) that the contravention to which the previous notification related did occur.

Textual Amendments

F243S. 94(10)-(10B) substituted for s. 94(10) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 17; S.I. 2014/416, art. 2(1)(e) (with Sch.)

Modifications etc. (not altering text)

C3Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information

I121S. 94 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I122S. 94 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

95Enforcement notification for contravention of conditionsU.K.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 94;

(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.

(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 a condition specified in the notification under section 94; and

(b)that he has not, during the period allowed under that section, taken all such steps as they consider appropriate—

(i)for complying with that condition; and

(ii)for remedying the consequences of the notified contravention of that condition.

(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 condition as may be specified in the notification;

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

(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—

(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.

Modifications etc. (not altering text)

C3Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information

I123S. 95 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I124S. 95 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

96Penalties for contravention of conditionsU.K.

(1)This section applies (in addition to section 95) where—

(a)a person (“the notified provider”) has been given a notification under section 94;

(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.

(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 a condition specified in the notification under section 94; and

(b)has not, during the period allowed under that section, taken the steps OFCOM consider appropriate—

(i)for complying with the notified condition; and

(ii)for remedying the consequences of the notified contravention of that condition.

(3)Where a notification under section 94 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.

(5)OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 95 in respect of the notified contravention.

(6)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 within which the penalty is to be paid.

(7)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.

Modifications etc. (not altering text)

C3Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information

I125S. 96 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I126S. 96 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F24496A.Notification of contravention of condition other than SMP apparatus conditionU.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a condition (other than an SMP apparatus condition) set under section 45, 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 condition and contravention in respect of which that determination has been made;

(c)specifies the period during which the person notified has an opportunity to make representations;

(d)specifies the steps that OFCOM think should be taken by the person in order to—

(i)comply with the condition;

(ii)remedy the consequences of the contravention;

(e)specifies any penalty which OFCOM are minded to impose in accordance with section 96B;

(f)where the contravention is serious, specifies any direction which OFCOM are minded to give under section 100; and

(g)where the contravention relates to a condition set under sections 87 to 91, specifies any direction which OFCOM are minded to give under section 100A.

(3)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.

(4)Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

(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

(c)the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

[F245(5)Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

(6)OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.

(7)In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.]

[F246(8)This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition (other than an SMP apparatus condition) set under section 45.]

Textual Amendments

Modifications etc. (not altering text)

96B.Penalties for contravention of conditionsU.K.

(1)This section applies where a person is given a notification under section 96A which specifies a proposed penalty.

(2)Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3)Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4)But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a)the giving of a confirmation decision under section 96C(4)(c) which requires immediate action; or

(b)the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5)The amount of a penalty under subsection (4) is to be such amount not exceeding £20,000 per day as OFCOM determine to be—

(a)appropriate; and

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

Textual Amendments

Modifications etc. (not altering text)

96C.Enforcement of notification under section 96AU.K.

(1)This section applies where—

(a)a person has been given a notification under section 96A;

(b)OFCOM have allowed the person an opportunity to make representations about the matters notified; and

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

(2)OFCOM may—

(a)give the person a decision (a “confirmation decision”) confirming the imposition of requirements on the person, or the giving of a direction to the person, or both, in accordance with the notification under section 96A; or

(b)inform the person that they are satisfied with the person’s representations and that no further action will be taken.

(3)OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a condition [F247or commitment] specified in the notification under section 96A.

(4)A confirmation decision—

(a)must be given to the person without delay;

(b)must include reasons for the decision;

(c)may require immediate action by the person to comply with requirements of a kind mentioned in section 96A(2)(d), or may specify a period within which the person must comply with those requirements; and

(d)may require the person to pay—

(i)the penalty specified in the notification under section 96A, or

(ii)such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the [F248condition or commitment or to] remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.

(5)It is the duty of the person to comply with any requirement imposed by a confirmation decision.

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

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c)for any other appropriate remedy or relief.

(7)A penalty imposed by a confirmation decision—

(a)must be paid to OFCOM; and

(b)if not paid within the period specified by them, is to be recoverable by them accordingly.]

Textual Amendments

Modifications etc. (not altering text)

97Amount of penalty under s. 96 [F249or 96A] U.K.

(1)The amount of a penalty imposed under section 96 [F250or notified under section 96A (other than a penalty falling within section 96B(4))] is to be such amount not exceeding ten per cent. of the turnover of the [F251person] ’s relevant business for the relevant period as OFCOM determine to be—

(a)appropriate; and

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

(2)In making [F252a determination in relation to a penalty imposed under section 96] OFCOM must have regard to—

(a)any representations made to them by the [F253person] ;

(b)any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94; and

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

(3)For the purposes of this section—

(a)the turnover of a person’s relevant business for a period shall be calculated in accordance with such rules as may be set out by order made by the Secretary of State; and

(b)provision may also be made by such an order for determining what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made.

(4)No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5)In this section—

  • “relevant business” means (subject to the provisions of an order under subsection (3) and to subsections (6) and (7)) so much of any business carried on by the [F254person] as consists in any one or more of the following—

    (a)

    the provision of an electronic communications network;

    (b)

    the provision of an electronic communications service;

    (c)

    the making available of associated facilities;

    (d)

    the supply of directories for use in connection with the use of such a network or service;

    (e)

    the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service;

    (f)

    any business not falling within any of the preceding paragraphs which is carried on in association with any business in respect of which any access-related condition is applied to the person carrying it on;

  • “relevant period”, in relation to a contravention by a person of a condition set under section 45 [F255or of a commitment that is made binding by a commitments decision], means—

    (a)

    except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 94 [F256or 96A];

    (b)

    in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; and

    (c)

    in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.

(6)In the case of a contravention of an SMP apparatus condition the relevant business is so much of any business carried on by the person in respect of whose contravention the penalty is imposed as consists in the supply of electronic communications apparatus.

(7)So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—

(a)a contravention of an access-related condition imposed in respect of that business; or

(b)a contravention of an enforcement notification given under section 95 [F257or a confirmation decision under section 96C] relating to such a condition.

F258(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

C3Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information

I127S. 97 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I128S. 97 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

98Power to deal with urgent casesU.K.

(1)This section applies where OFCOM determine—

(a)that they are entitled to give a notification under section [F25996A] with respect to a contravention by a person (“the contravening provider”) of a condition set under section 45 [F260or of a commitment that is made binding by a commitments decision], F261...;

(b)that there are reasonable grounds for suspecting that the case is an urgent case; and

(c)that the urgency of the case makes it appropriate for OFCOM to take action under this section.

(2)A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

(a)a serious threat to the safety of the public, to public health or to national security;

(b)serious economic or operational problems for persons (other than the contravening provider) who are communications providers or persons who make associated facilities available; or

(c)serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

F262(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)OFCOM shall F263... have power to give to the contravening provider—

(a)a direction that his entitlement to provide electronic communications networks or electronic communications 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.

(5)A direction under subsection (4)—

(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.

(6)A direction under subsection (4)—

(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 conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting his customers.

(7)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

(b)in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(8)OFCOM have power to revoke a direction given under subsection (4)—

(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.

Textual Amendments

Commencement Information

I129S. 98 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I130S. 98 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

99Confirmation of directions under s. 98U.K.

(1)As soon as reasonably practicable after giving a direction under section 98(4), OFCOM must give the person to whom it is given—

(a)an opportunity of making representations to them about the grounds on which it was given and its effect; and

(b)an opportunity of proposing steps to remedy the situation.

(2)As soon as practicable after the period allowed by OFCOM for making those representations has ended [F264(and in any event within 3 months beginning with the day on which the direction under section 98(4) was given)] , they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

[F265(2A)The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

(a)require additional time to consider representations received; or

(b)decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (2).]

(3)If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(4)If not, they must exercise their power to revoke it.

(5)As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.

(6)Conditions included in a direction by virtue of section 98(7) have effect only if the direction is confirmed.

Textual Amendments

Commencement Information

I131S. 99 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I132S. 99 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

100Suspending service provision for contraventions of conditionsU.K.

[F266(1)OFCOM may give a direction under this section to a person where—

(a)either Condition A or Condition B is satisfied in relation to the person; and

(b)the giving of a direction is appropriate and proportionate to the contravention in respect of which it is imposed.

(1A)Condition A is that—

(a)the person is in serious contravention of a condition set under section 45, other than SMP apparatus conditions; and

(b)the proposed direction has been notified to the person under section 96A and confirmed by a confirmation decision under section 96C.

(1B)Condition B is that—

(a)the person has repeatedly contravened a condition set under section 45, other than SMP apparatus conditions; and

(b)an attempt, by the imposition of penalties or the giving of notifications under section 96A and confirmation decisions under section 96C, or both, to secure compliance with the contravened conditions has failed.

(1C)Where Condition A is satisfied, a direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.

(1D)Where Condition B is satisfied, a direction under this section is to be given in accordance with the procedure set out in section 102.]

(2)A direction under this section is—

(a)a direction that the entitlement of the [F267person] to provide electronic communications networks or electronic communications 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—

(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—

(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 conditions on the [F268person] 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 [F269person] ’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 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

(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 conditions set under section 45 to the extent that—

[F270(a)in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(2) in respect of the contravention;]

[F271(b)in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition under section 45;]

(c)the previous [F272confirmation decision] and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

[F273(8)This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition set under section 45, other than an SMP apparatus condition.]

Textual Amendments

Commencement Information

I133S. 100 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I134S. 100 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F274100A.Suspending service provision for breach of SMP services conditionU.K.

(1)OFCOM may give a direction under this section to a person who provides a public electronic communications network, or a person who makes available facilities that are associated facilities by reference to such a network, if OFCOM are satisfied that—

(a)the person is or has been in contravention of conditions set under sections 87 to 91 [F275or of commitments that are made binding by a commitments decision]; and

(b)the provision of an electronic communications service by the person on that public electronic communications network could result in significant harm to competition.

(2)A direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.

(3)A direction under this section is—

(a)a direction that the entitlement of the person to provide an electronic communications service over the public electronic communications network to which the contravened condition [F276or commitment] relates is suspended (either generally or in relation to particular services); or

(b)a direction that the person may not begin to provide an electronic communications service over the public electronic communications network to which the contravened provision relates.

(4)A direction under this section—

(a)must specify the electronic communications services to which it relates, and

(b)takes effect for an indefinite period beginning with the time at which a confirmation decision relating to the direction is given to the person under section 96C.

(5)A direction under this section—

(a)may provide for a suspension or prohibition to take effect only at a time determined by or in accordance with the terms of the direction; and

(b)in connection with a suspension or prohibition contained in the direction or with the postponement of its effect, may impose such conditions on the person to whom it is given as appear to OFCOM to be appropriate for the purpose of protecting that person’s customers.

(6)Those conditions may include a condition requiring the making of payments—

(a)by way of compensation for loss or damage suffered by the person’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.

(7)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

(c)to such extent and in relation to such services, or parts of a service, as they may determine.]

Textual Amendments

101Suspending apparatus supply for contraventions of conditionsU.K.

(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 apparatus conditions;

(b)that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 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 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

(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 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 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 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 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.

(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 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

(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 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).

Commencement Information

I135S. 101 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I136S. 101 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

102Procedure for directions under ss. 100 and 101U.K.

(1)Except in an urgent case, [F277or a case where Condition A in section 100 is satisfied,] OFCOM are not to give a direction under section 100 or 101 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 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.

[F278(2)That period must be—

(a)in relation to a direction under section 100, such reasonable period as OFCOM may determine, and

(b)in relation to a direction under section 101, a period ending not less than [F27930 days] after the day of the giving of the notification.]

(3)As soon as practicable after giving a direction under section 100 or 101 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 its conditions; and

(b)proposing steps for remedying the situation.

[F280(3A)In relation to a direction under section 100 in an urgent case, as soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

(3B)The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

(a)require additional time to consider representations received; or

(b)decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).]

(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 direction under section 100 or 101, for the making and consideration of representations; and

(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 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

(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—

  • [F281“contravening provider” means a person who is a communications provider or makes associated facilities available;]

  • “contravening supplier” has the same meaning as in section 101.

Textual Amendments

Commencement Information

I137S. 102 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I138S. 102 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

103Enforcement of directions under ss. 98, 100 [F282, 100A] and 101U.K.

(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 [F28398(4), 100 or 100A] ; 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 101; 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;

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

[F284(4)Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 98, 100 or 100A as they apply in relation to a contravention of conditions set under section 45, other than SMP apparatus conditions.

(5)Sections 94 to 96 and 97 to 99 apply in relation to a contravention of conditions imposed by a direction under section 101 as they apply in relation to a contravention of SMP apparatus conditions.]

Textual Amendments

Commencement Information

I139S. 103 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I140S. 103 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

104Civil liability for breach of conditions or [F285confirmation decision] U.K.

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

(a)the conditions set under section 45 which apply to him,

[F286(aa)the person’s commitments that are made binding by a commitments decision,]

(b)requirements imposed on him by an enforcement notification under section 95, F287...

[F288(ba)requirements imposed on the person by a notification under section 96A and a confirmation decision under section 96C; and]

(c)the conditions imposed by a direction under section 98 [F289, 100 or 100A],

shall be a duty owed to every person who may be affected by a contravention of the condition[F290, commitment] 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—

(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 be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition[F291, commitment] or requirement in question.

(4)The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a) [F292or (aa)].

(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.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I141S. 104 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I142S. 104 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

OFCOM’s duty to intervene on network access issuesU.K.

F293105Consideration and determination of network access questionsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I143S. 105 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I144S. 105 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F294Security of public electronic communications networks and servicesU.K.

Textual Amendments

[F295105A.Duty to take security measuresU.K.

(1)The provider of a public electronic communications network or a public electronic communications service must take such measures as are appropriate and proportionate for the purposes of—

(a)identifying the risks of security compromises occurring;

(b)reducing the risks of security compromises occurring; and

(c)preparing for the occurrence of security compromises.

(2)In this Chapter “security compromise”, in relation to a public electronic communications network or a public electronic communications service, means—

(a)anything that compromises the availability, performance or functionality of the network or service;

(b)any unauthorised access to, interference with or exploitation of the network or service or anything that enables such access, interference or exploitation;

(c)anything that compromises the confidentiality of signals conveyed by means of the network or service;

(d)anything that causes signals conveyed by means of the network or service to be—

(i)lost;

(ii)unintentionally altered; or

(iii)altered otherwise than by or with the permission of the provider of the network or service;

(e)anything that occurs in connection with the network or service and compromises the confidentiality of any data stored by electronic means;

(f)anything that occurs in connection with the network or service and causes any data stored by electronic means to be—

(i)lost;

(ii)unintentionally altered; or

(iii)altered otherwise than by or with the permission of the person holding the data; or

(g)anything that occurs in connection with the network or service and causes a connected security compromise.

(3)But in this Chapter “security compromise” does not include anything that occurs as a result of conduct that—

(a)is required or authorised by or under an enactment mentioned in subsection (4);

(b)is undertaken for the purpose of providing a person with assistance in giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in subsection (4);

(c)is undertaken for the purpose of providing a person with assistance in exercising any power conferred by or under prison rules; or

(d)is undertaken for the purpose of providing assistance to a constable or a member of a service police force (acting in either case in that capacity).

(4)The enactments are—

(a)the Investigatory Powers Act 2016;

(b)Part 1 of the Crime and Courts Act 2013;

(c)the Prisons (Interference with Wireless Telegraphy) Act 2012;

(d)the Regulation of Investigatory Powers Act 2000;

(e)the Regulation of Investigatory Powers (Scotland) Act 2000;

(f)the Intelligence Services Act 1994;

(g)any other enactment (whenever passed or made) so far as it—

(i)makes provision which is in the interests of national security;

(ii)has effect for the purpose of preventing or detecting crime or of preventing disorder; or

(iii)makes provision which is in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security.

(5)In this section—

  • “connected security compromise” means—

    (a)

    in relation to a public electronic communications network, a security compromise that occurs in relation to another public electronic communications network or a public electronic communications service;

    (b)

    in relation to a public electronic communications service, a security compromise that occurs in relation to a public electronic communications network or another public electronic communications service;

  • “crime” and “detecting crime” have the same meanings as in the Investigatory Powers Act 2016;

  • “prison rules” means any rules made under—

    (a)

    section 47 of the Prison Act 1952;

    (b)

    section 39 of the Prisons (Scotland) Act 1989; or

    (c)

    section 13 of the Prison Act (Northern Ireland) 1953;

  • “service police force” means—

    (a)

    the Royal Navy Police;

    (b)

    the Royal Military Police; or

    (c)

    the Royal Air Force Police;

  • “signal” has the same meaning as in section 32.]

Textual Amendments

F295Ss. 105A, 105B substituted for ss. 105A-105D and ss. 105C, 105D re-inserted (17.11.2021 for specified purposes, 1.10.2022 in so far as not already in force) by Telecommunications (Security) Act 2021 (c. 31), ss. 1(2), 2, 28(1)(a)

[F295105B.Duty to take specified security measuresU.K.

(1)The Secretary of State may by regulations provide that the provider of a public electronic communications network or a public electronic communications service must take specified measures or measures of a specified description.

(2)A measure or description of measure may be specified only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for a purpose mentioned in section 105A(1).

(3)In this section “specified” means specified in the regulations.

(4)Nothing in this section or regulations under it affects the duty imposed by section 105A.]

Textual Amendments

F295Ss. 105A, 105B substituted for ss. 105A-105D and ss. 105C, 105D re-inserted (17.11.2021 for specified purposes, 1.10.2022 in so far as not already in force) by Telecommunications (Security) Act 2021 (c. 31), ss. 1(2), 2, 28(1)(a)

[F296105C.Duty to take measures in response to security compromisesU.K.

(1)This section applies where a security compromise occurs in relation to a public electronic communications network or a public electronic communications service.

(2)The provider of the network or service must take such measures as are appropriate and proportionate for the purpose of preventing adverse effects (on the network or service or otherwise) arising from the security compromise.

(3)If the security compromise has an adverse effect on the network or service, the provider of the network or service must take such measures as are appropriate and proportionate for the purpose of remedying or mitigating that adverse effect.]

Textual Amendments

F296Ss. 105A, 105B substituted for ss. 105A-105D and ss. 105C, 105D re-inserted (17.11.2021 for specified purposes, 1.10.2022 in so far as not already in force) by Telecommunications (Security) Act 2021 (c. 31), ss. 1(2), 2, 28(1)(a)

[F297105D.Duty to take specified measures in response to security compromiseU.K.

(1)The Secretary of State may by regulations provide that, where a security compromise of a specified description occurs in relation to a public electronic communications network or a public electronic communications service, the provider of the network or service must take specified measures or measures of a specified description.

(2)A measure or description of measure may be specified under subsection (1) only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for the purpose of preventing adverse effects (on the network or service or otherwise) arising from a security compromise of the specified description.

(3)The Secretary of State may by regulations provide that, where a security compromise occurs in relation to a public electronic communications network or a public electronic communications service and has an adverse effect of a specified description on the network or service, the provider of the network or service must take specified measures or measures of a specified description.

(4)A measure or description of measure may be specified under subsection (3) only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for the purpose of remedying or mitigating an adverse effect of the specified description.

(5)In this section “specified” means specified in the regulations.

(6)Nothing in this section or regulations under it affects the duty imposed by section 105C.]

Textual Amendments

F297Ss. 105A, 105B substituted for ss. 105A-105D and ss. 105C, 105D re-inserted (17.11.2021 for specified purposes, 1.10.2022 in so far as not already in force) by Telecommunications (Security) Act 2021 (c. 31), ss. 1(2), 2, 28(1)(a); S.I. 2022/931, reg. 2(a)

[F298105ECodes of practice about security measures etcU.K.

The Secretary of State may—

(a)issue codes of practice giving guidance as to the measures to be taken under sections 105A to 105D by the provider of a public electronic communications network or a public electronic communications service;

(b)revise a code of practice issued under this section and issue the code as revised;

(c)withdraw a code of practice issued under this section.

Textual Amendments

F298Ss. 105E-105I inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 3, 28(1)(b)

105FIssuing codes of practice about security measuresU.K.

(1)Before issuing a code of practice under section 105E the Secretary of State—

(a)must publish a draft of—

(i)the code; or

(ii)where relevant, the revisions of the existing code;

(b)must consult the following about the draft—

(i)OFCOM;

(ii)providers of public electronic communications networks to whom the draft would apply;

(iii)providers of public electronic communications services to whom the draft would apply; and

(iv)such other persons as the Secretary of State considers appropriate; and

(c)may make such alterations to the draft as the Secretary of State considers appropriate following the consultation.

(2)Before issuing a code of practice under section 105E the Secretary of State must also lay a draft of the code before Parliament.

(3)If, within the 40-day period, either House of Parliament resolves not to approve the draft of the code, the code may not be issued.

(4)If no such resolution is made within that period, the code may be issued.

(5)If the code is issued, the Secretary of State must publish it.

(6)A code of practice comes into force at the time of its publication under subsection (5), unless it specifies a different commencement time.

(7)A code of practice may—

(a)specify different commencement times for different purposes;

(b)include transitional provisions and savings.

(8)In this section, the “40-day period”, in relation to a draft of a code, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the 2 days on which it is laid).

(9)For the purposes of calculating the 40-day period, no account is to be taken of any period during which—

(a)Parliament is dissolved or prorogued, or

(b)both Houses are adjourned for more than 4 days.

Textual Amendments

F298Ss. 105E-105I inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 3, 28(1)(b)

105GWithdrawing codes of practice about security measuresU.K.

(1)Before withdrawing a code of practice under section 105E the Secretary of State must—

(a)publish notice of the proposal to withdraw the code; and

(b)consult the following about the proposal—

(i)OFCOM;

(ii)providers of public electronic communications networks to whom the code applies;

(iii)providers of public electronic communications services to whom the code applies; and

(iv)such other persons as the Secretary of State considers appropriate.

(2)Where the Secretary of State withdraws a code of practice under section 105E the Secretary of State must—

(a)publish notice of the withdrawal of the code; and

(b)lay a copy of the notice before Parliament.

(3)A withdrawal of a code of practice has effect at the time of the publication of the notice of withdrawal under subsection (2), unless the notice specifies a different withdrawal time.

(4)A notice of withdrawal may—

(a)specify different withdrawal times for different purposes;

(b)include savings.

Textual Amendments

F298Ss. 105E-105I inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 3, 28(1)(b)

105HEffects of codes of practice about security measuresU.K.

(1)A failure by the provider of a public electronic communications network or a public electronic communications service to act in accordance with a provision of a code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal.

(2)In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of a code of practice in determining any question arising in the proceedings if—

(a)the question relates to a time when the provision was in force; and

(b)the provision appears to the court or tribunal to be relevant to the question.

(3)OFCOM must take into account a provision of a code of practice in determining any question arising in connection with the carrying out by them of a relevant function if—

(a)the question relates to a time when the provision was in force; and

(b)the provision appears to OFCOM to be relevant to the question.

(4)In this section—

  • “code of practice” means a code of practice issued under section 105E;

  • “relevant function” means a function conferred on OFCOM by any of the following provisions—

    (a)

    section 105M (general duty of OFCOM to ensure compliance with security duties);

    (b)

    section 105N (power of OFCOM to assess compliance with security duties);

    (c)

    section 105O (power of OFCOM to give assessment notices);

    (d)

    section 105S (enforcement of security duties);

    (e)

    section 105U (enforcement of security duties: proposal for interim steps);

    (f)

    section 105V (enforcement of security duties: direction to take interim steps).

Textual Amendments

F298Ss. 105E-105I inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 3, 28(1)(b)

105IDuty to explain failure to act in accordance with code of practiceU.K.

(1)This section applies where OFCOM have reasonable grounds for suspecting that the provider of a public electronic communications network or a public electronic communications service is failing, or has failed, to act in accordance with a provision of a code of practice issued under section 105E.

(2)OFCOM may give a notification to the provider that—

(a)specifies the provision of the code of practice;

(b)specifies the respects in which the provider is suspected to be failing, or to have failed, to act in accordance with it; and

(c)directs the provider to give to OFCOM a statement under subsection (3) or (4).

(3)A statement under this subsection is a statement that—

(a)confirms that the provider is failing, or has failed, in the respects specified in the notification to act in accordance with the provision of the code of practice; and

(b)explains the reasons for the failure.

(4)A statement under this subsection is a statement that—

(a)states that the provider is not failing, or has not failed, in the respects specified in the notification to act in accordance with the provision of the code of practice; and

(b)explains the reasons for that statement.

(5)The provider must comply with a direction given under subsection (2)(c) within such reasonable period as may be specified in the notification.]]

Textual Amendments

F298Ss. 105E-105I inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 3, 28(1)(b)

[F299105JDuty to inform users of risk of security compromiseU.K.

(1)This section applies where there is a significant risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service.

(2)The provider of the network or service must take such steps as are reasonable and proportionate for the purpose of bringing the relevant information, expressed in clear and plain language, to the attention of persons who use the network or service and may be adversely affected by the security compromise.

(3)The relevant information is—

(a)the existence of the risk of the security compromise occurring;

(b)the nature of the security compromise;

(c)the technical measures that it may be reasonably practicable for persons who use the network or service to take for the purposes of—

(i)preventing the security compromise adversely affecting them;

(ii)remedying or mitigating the adverse effect that the security compromise has on them; and

(d)the name and contact details of a person from whom further information may be obtained about the security compromise.

Textual Amendments

105KDuty to inform OFCOM of security compromiseU.K.

(1)The provider of a public electronic communications network or a public electronic communications service must inform OFCOM as soon as reasonably practicable of—

(a)any security compromise that has a significant effect on the operation of the network or service;

(b)any security compromise within section 105A(2)(b) that puts any person in a position to be able to bring about a further security compromise that would have a significant effect on the operation of the network or service.

(2)In determining for the purposes of this section whether the effect that a security compromise has, or would have, on the operation of a network or service is significant, the following matters in particular are to be taken into account—

(a)the length of the period during which the operation of the network or service is or would be affected;

(b)the number of persons who use the network or service that are or would be affected by the effect on the operation of the network or service;

(c)the size and location of the geographical area within which persons who use the network or service are or would be affected by the effect on the operation of the network or service;

(d)the extent to which activities of persons who use the network or service are or would be affected by the effect on the operation of the network or service.

Textual Amendments

105LPowers of OFCOM to inform others of security compromiseU.K.

(1)This section applies where OFCOM consider that—

(a)there is a risk of a security compromise occurring in relation to a public electronic communications network or public electronic communications service; or

(b)a security compromise has occurred in relation to a public electronic communications network or public electronic communications service.

(2)OFCOM must inform the Secretary of State of the risk of or (as the case may be) the occurrence of the security compromise if they consider that the security compromise could result in or has resulted in—

(a)a serious threat to the safety of the public, to public health or to national security;

(b)serious economic or operational problems for persons who are communications providers or persons who make associated facilities available; or

(c)serious economic or operational problems for persons who use electronic communications networks, electronic communications services or associated facilities.

(3)OFCOM may inform the Secretary of State of the risk of or (as the case may be) the occurrence of the security compromise in a case where the duty in subsection (2) does not arise.

(4)OFCOM may inform any of the following about the risk of or (as the case may be) the occurrence of the security compromise—

(a)any person who uses or has used the network or service;

(b)any communications provider;

(c)any person who makes associated facilities available;

(d)any overseas regulator;

(e)the European Union Agency for Cybersecurity.

(5)OFCOM may inform any person who uses or has used the network or service of the technical measures that may be taken by the person for the purposes of—

(a)preventing the security compromise adversely affecting them; or

(b)remedying or mitigating the adverse effect that the security compromise has on them.

(6)OFCOM may direct the provider of the network or service to take steps specified in the direction for the purposes of—

(a)informing persons who use or have used the network or service of the risk of or (as the case may be) the occurrence of the security compromise;

(b)informing persons who use or have used the network or service of the technical measures that may be taken by them for a purpose mentioned in subsection (5)(a) or (b).

(7)OFCOM may if they consider it to be in the public interest—

(a)inform the public of the risk of or (as the case may be) the occurrence of the security compromise;

(b)inform the public of the technical measures that may be taken by members of the public for a purpose mentioned in subsection (5)(a) or (b);

(c)direct the provider of the network or service to do anything that OFCOM could do under paragraph (a) or (b).

(8)It is the duty of the provider of the network or service to comply with a direction given under this section within such reasonable period as may be specified in the direction.

(9)In this section “overseas regulator” means a person who, under the law of a country or territory outside the United Kingdom, has functions in relation to public electronic communications networks or public electronic communications services that correspond to functions that OFCOM have in relation to such networks or services.]

Textual Amendments

[F300105MGeneral duty of OFCOM to ensure compliance with security dutiesU.K.

OFCOM must seek to ensure that providers of public electronic communications networks and public electronic communications services comply with the duties imposed on them by or under sections 105A to 105D, 105J and 105K.]

Textual Amendments

[F301105NPower of OFCOM to assess compliance with security dutiesU.K.

(1)OFCOM may carry out, or arrange for another person to carry out, an assessment of whether the provider of a public electronic communications network or a public electronic communications service is complying or has complied with a duty imposed on the provider by or under any of sections 105A to 105D, 105J and 105K.

(2)Where an assessment under this section is carried out, the provider of the network or service concerned must—

(a)co-operate with the assessment; and

(b)pay the costs reasonably incurred by OFCOM in connection with the assessment.

Textual Amendments

105OPower of OFCOM to give assessment noticesU.K.

(1)This section applies for the purposes of an assessment under section 105N in respect of the provider of a public electronic communications network or a public electronic communications service.

(2)OFCOM may by notice (“an assessment notice”) impose on the provider a duty to do any of the following things—

(a)carry out specified tests or tests of a specified description in relation to the network or service;

(b)make arrangements of a specified description for another person to carry out specified tests or tests of a specified description in relation to the network or service;

(c)make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service (not exceeding the number who are willing to be interviewed);

(d)permit an authorised person to enter specified premises;

(e)permit an authorised person to observe any operation taking place on the premises that relates to the network or service;

(f)direct an authorised person to equipment or other material on the premises that is of a specified description;

(g)direct an authorised person to documents on the premises that are of a specified description;

(h)assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises;

(i)comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view;

(j)permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view;

(k)provide an authorised person with an explanation of such documents, information, equipment or material.

(3)The references in subsection (2)(a) and (b) to tests in relation to the network or service include references to—

(a)tests in relation to premises used in connection with the provision of the network or service;

(b)tests in relation to persons involved in the provision of the network or service.

(4)An assessment notice may impose on the provider a duty to carry out, or to make arrangements for another person to carry out, a test in relation to the network or service that risks causing a security compromise, loss to a person or damage to property only if the test consists of the use of techniques that might be expected to be used by a person seeking to cause a security compromise.

(5)An assessment notice may not impose on the provider a duty to permit an authorised person to enter domestic premises.

(6)An assessment notice may not impose on the provider a duty to do anything that would result in the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings.

(7)An assessment notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with.

(8)A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period within which an appeal under section 192 can be brought in respect of the assessment notice (ignoring any power to extend the period within which an appeal could be brought).

(9)If an appeal under section 192 is brought in respect of an assessment notice or any provision of an assessment notice, the provider need not comply with any duty imposed by the notice or the provision pending the determination or withdrawal of the appeal.

(10)An assessment notice must provide information about—

(a)the consequences of failing to comply with a duty imposed by the notice; and

(b)the right of appeal in respect of the notice under section 192.

(11)An assessment notice may by further notice—

(a)be revoked by OFCOM;

(b)be varied by OFCOM so as to make it less onerous.

(12)In this section—

  • “authorised person” means an employee of, or person authorised by, OFCOM;

  • “domestic premises” means premises, or a part of premises, used as a dwelling;

  • “specified” means specified in the assessment notice.

Textual Amendments

105PAssessment notices: urgency statementsU.K.

(1)This section applies where—

(a)an assessment notice is given under section 105O to the provider of a public electronic communications network or a public electronic communications service;

(b)the notice states that, in OFCOM’s opinion, it is necessary for the provider to comply with a duty imposed by the notice urgently;

(c)the notice gives OFCOM’s reasons for reaching that opinion; and

(d)the notice provides information about the right of the provider to make an application under section 105Q.

(2)Subsections (8) and (9) of section 105O do not apply in relation to the duty mentioned in subsection (1)(b).

(3)A time or period specified under subsection (7) of section 105O in relation to the duty mentioned in subsection (1)(b) must not be a time that falls or a period that begins before the end of the period of 14 days beginning with the day the notice is given.

(4)In a case where—

(a)the duty mentioned in subsection (1)(b) is a duty to do something mentioned in section 105O(2)(d) to (k), and

(b)within the period of 14 days beginning with the day the notice is given an appeal under section 192 is brought in respect of the notice or the provision of the notice that imposes the duty,

the provider of the network or service need not comply with the duty pending the determination or withdrawal of the appeal.

Textual Amendments

105QAssessment notices: applications in respect of urgency statementsU.K.

(1)This section applies where an assessment notice given under section 105O to a provider of a public electronic communications network or a public electronic communications service contains a statement under section 105P(1)(b).

(2)The provider may apply to the court for either or both of the following—

(a)the disapplication of the statement in relation to some or all of the duties imposed by the notice;

(b)a change to the time at which, or period within which, a duty imposed by the notice must be complied with.

(3)On an application under this section, the court may do any of the following—

(a)direct that the notice is to have effect as if it did not contain the statement;

(b)direct that the inclusion of the statement is not to have effect in relation to a duty imposed by the notice;

(c)vary the notice by changing the time at which, or the period within which, a duty imposed by the notice must be complied with;

(d)vary the notice by making other changes required to give effect to a direction under paragraph (a) or (b) or in consequence of a variation under paragraph (c).

(4)The decision of the court on an application under this section is final.

(5)In this section “the court” means the High Court or, in Scotland, the Court of Session.

Textual Amendments

105RAssessment notices: information about entering premisesU.K.

Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (OFCOM’s annual report) must include a statement of the number of occasions during the financial year to which the report relates on which premises have been entered in pursuance of a duty imposed under section 105O(2)(d).]

Textual Amendments

[F302105SEnforcement of security dutiesU.K.

(1)Sections 96A to 100, 102 and 103 apply in relation to a contravention of a security duty as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition.

(2)This section is subject to section 105T (enforcement of security duties: amount of penalties).

(3)In this section “security duty” means a duty imposed by or under any of sections 105A to 105D, 105I to 105K, 105L(6), (7)(c) and (8), 105N(2)(a) and 105O.

Textual Amendments

105TEnforcement of security duties: amount of penaltiesU.K.

(1)In its application in relation to a contravention of a security duty, other than a security duty imposed by section 105I, section 96B(5) has effect as if the maximum penalty specified were £100,000 per day.

(2)In its application in relation to a contravention of a security duty imposed by section 105I, section 96B(5) has effect as if the maximum penalty specified were £50,000 per day.

(3)In its application in relation to a contravention of a security duty imposed by section 105I, section 97(1) has effect as if the maximum penalty specified were £10 million.

(4)The Secretary of State may by regulations amend this section so as to substitute a different amount for the amount for the time being specified in subsection (1), (2) or (3).

(5)No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.

(6)In this section “security duty” has the same meaning as in section 105S.

Textual Amendments

105UEnforcement of security duties: proposal for interim stepsU.K.

(1)This section applies where—

(a)OFCOM determine that there are reasonable grounds for believing that the provider of a public electronic communications network or a public electronic communications service is contravening or has contravened a duty imposed by or under any of sections 105A to 105D;

(b)OFCOM either have not commenced, or have commenced but not completed, enforcement action in connection with the contravention;

(c)OFCOM determine that there are reasonable grounds for believing that either or both of the following conditions are met—

(i)a security compromise has occurred as a result of the contravention;

(ii)there is an imminent risk of a security compromise or (as the case may be) a further security compromise occurring as a result of the contravention; and

(d)OFCOM determine that, having regard to the seriousness or likely seriousness of the security compromise or security compromises mentioned in paragraph (c), it is reasonable to require the provider to take interim steps pending the completion by OFCOM of enforcement action in connection with the contravention.

(2)OFCOM may give a notification to the provider that—

(a)sets out the determinations mentioned in subsection (1);

(b)specifies the interim steps that OFCOM think the provider should be required to take pending the completion by OFCOM of enforcement action in connection with the contravention; and

(c)specifies the period during which the provider has an opportunity to make representations about the matters notified.

(3)In this section and section 105V—

(a)references to the commencement by OFCOM of enforcement action in connection with a contravention are to the giving of a notification under section 96A (as applied by section 105S) in respect of the contravention; and

(b)references to the completion by OFCOM of enforcement action in connection with a contravention are to the taking of action under section 96C(2)(a) or (b) (as applied by section 105S) in connection with the contravention.

(4)In this section “interim steps” means—

(a)in a case where OFCOM determine that there are reasonable grounds for believing that the condition in subsection (1)(c)(i) is met, steps to—

(i)prevent adverse effects (on the network or service or otherwise) arising from the security compromise;

(ii)remedy or mitigate any adverse effects on the network or service arising from the security compromise;

(b)in a case where OFCOM determine that there are reasonable grounds for believing that the condition in subsection (1)(c)(ii) is met, steps to—

(i)eliminate or reduce the risk of the security compromise or (as the case may be) the further security compromise occurring;

(ii)prevent adverse effects (on the network or service or otherwise) arising from the security compromise or (as the case may be) the further security compromise in the event it occurs.

Textual Amendments

105VEnforcement of security duties: direction to take interim stepsU.K.

(1)This section applies where—

(a)the provider of a public electronic communications network or a public electronic communications service has been given a notification under section 105U;

(b)OFCOM have allowed the provider an opportunity to make representations about the matters notified; and

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

(2)OFCOM may—

(a)direct the provider to take the interim steps or any of the interim steps specified in the notification; or

(b)inform the provider that a direction under paragraph (a) will not be given.

(3)OFCOM may give a direction under subsection (2)(a) only if (after considering any representations) they are satisfied—

(a)that there are reasonable grounds for believing that the contravention on the basis of which the notification was given occurred;

(b)that there are reasonable grounds for believing that either or both of the following conditions are met—

(i)a security compromise has occurred as a result of the contravention;

(ii)there is an imminent risk of a security compromise or (as the case may be) a further security compromise occurring as a result of the contravention; and

(c)that, having regard to the seriousness or likely seriousness of the security compromise or security compromises mentioned in paragraph (b), it is reasonable to give the direction.

(4)A direction under subsection (2)(a) must include a statement of OFCOM’s reasons for giving the direction.

(5)A direction under subsection (2)(a) must, in relation to each interim step, specify the period within which the step must be taken.

(6)A direction under subsection (2)(a) is ineffective in so far as it would require interim steps to be taken after the completion by OFCOM of enforcement action in connection with the contravention concerned.

(7)Where a direction under subsection (2)(a) has been given and has not been revoked, OFCOM must as soon as reasonably practicable—

(a)commence enforcement action in connection with the contravention concerned (unless enforcement action was commenced by OFCOM before the direction was given); and

(b)complete enforcement action in connection with the contravention concerned.

(8)A direction under subsection (2)(a) may at any time—

(a)be revoked by OFCOM; or

(b)be varied by OFCOM so as to make it less onerous.

(9)A provider of a public electronic communications network or a public electronic communications service who is given a direction under subsection (2)(a) must comply with it.

(10)That duty is enforceable in civil proceedings by OFCOM—

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c)for any other appropriate remedy or relief.]

Textual Amendments

[F303105WCivil liability for breach of security dutiesU.K.

(1)A duty imposed by or under any of sections 105A to 105D and 105J on a provider of a public electronic communications network or a public electronic communications service is a duty owed to every person who may be affected by a contravention of the duty.

(2)Subsections (3) and (4) apply where a duty is owed by virtue of subsection (1) to a person.

(3)A breach of the duty that causes that person to sustain loss or damage is actionable at the suit or instance of that person.

(4)An act which—

(a)by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

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

is actionable at the suit or instance of that person.

(5)In proceedings brought against a provider of a public electronic communications network or a public electronic communications service by virtue of subsection (3), it is a defence for the provider to show that they took all reasonable steps and exercised all due diligence to avoid contravening the duty in question.

(6)The consent of OFCOM is required for the bringing of proceedings by virtue of this section.

(7)If OFCOM give their consent subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on except in compliance with those conditions.]

Textual Amendments

[F304105XRelationship between security duties and certain other duties etcU.K.

(1)A security duty imposed on a provider of a public electronic communications network or a public electronic communications service does not apply in so far as compliance with the duty would—

(a)result in a failure by the provider to comply with a duty or prohibition imposed by or under an enactment mentioned in section 105A(4);

(b)prevent the provider from giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in section 105A(4);

(c)prevent the provider from providing a person with assistance in giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in section 105A(4); or

(d)prevent the provider from providing a person with assistance in exercising any power conferred by or under prison rules.

(2)In this section—

  • “prison rules” has the same meaning as in section 105A;

  • “security duty” means a duty imposed by or under—

    (a)

    section 96C as applied by section 105S; or

    (b)

    any of sections 105A to 105D, 105I to 105K, 105L(6), (7)(c) and (8), 105N(2)(a), 105O and 105V.]

Textual Amendments

[F305105YStatement of policy on ensuring compliance with security dutiesU.K.

(1)OFCOM must prepare and publish a statement of their general policy with respect to the exercise of their functions under sections 105I and 105M to 105V.

(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, 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)In exercising their functions under sections 105I and 105M to 105V OFCOM must have regard to the statement for the time being in force under this section.]

Textual Amendments

[F306105ZOFCOM reports on securityU.K.

(1)As soon as practicable after the end of each reporting period OFCOM must prepare and send to the Secretary of State a report for the period (a “security report”).

(2)A security report must contain such information and advice as OFCOM consider may best serve the purpose mentioned in subsection (3).

(3)The purpose is to assist the Secretary of State in the formulation of policy in relation to the security of public electronic communications networks and public electronic communications services.

(4)A security report must in particular include—

(a)information about the extent to which providers of public electronic communications networks and public electronic communications services have complied during the reporting period with the duties imposed on them by or under sections 105A to 105D, 105I to 105K, 105N(2)(a) and 105O;

(b)information about the extent to which providers of public electronic communications networks and public electronic communications services have acted during the reporting period in accordance with codes of practice issued under section 105E;

(c)information about the security compromises that OFCOM have been informed of during the reporting period under section 105K;

(d)information about the action taken by OFCOM during the reporting period in response to security compromises they have been informed of under section 105K;

(e)information about the extent to which and manner in which OFCOM have exercised the functions conferred on them by sections 105I and 105L to 105V during the reporting period;

(f)information about any particular risks to the security of public electronic communications networks and public electronic communications services of which OFCOM have become aware during the reporting period;

(g)any other information of a kind specified in a direction given by the Secretary of State.

(5)A security report must not include personal data (within the meaning of Parts 5 to 7 of the Data Protection Act 2018 (see section 3(2) and (14) of that Act).

(6)The Secretary of State may—

(a)publish a security report or any part of it; or

(b)disclose a security report or any part of it to any person or body performing functions of a public nature for the purpose of enabling or assisting the performance of those functions.

(7)In publishing or disclosing a security report or any part of a security report, the Secretary of State must have regard to the need to exclude from publication or disclosure, so far as is practicable, the matters which are confidential in accordance with subsection (8).

(8)A matter is confidential under this subsection if—

(a)it relates to the affairs of a particular body; and

(b)publication or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that body.

(9)In this section “reporting period” means—

(a)the period of 2 years beginning with the day on which section 11 of the Telecommunications (Security) Act 2021 comes into force; and

(b)each successive period of 12 months.]

Textual Amendments

[F307Security of public electronic communications networks and services: designated vendor directionsU.K.

Textual Amendments

105Z1Designated vendor directionsU.K.

(1)The Secretary of State may give a direction under this section (“a designated vendor direction”) to a public communications provider.

(2)The Secretary of State may give a designated vendor direction only if the Secretary of State considers that—

(a)the direction is necessary in the interests of national security; and

(b)the requirements imposed by the direction are proportionate to what is sought to be achieved by the direction.

(3)A designated vendor direction may impose requirements on a public communications provider with respect to the use, in connection with a purpose mentioned in subsection (4), of goods, services or facilities supplied, provided or made available by a designated vendor specified in the direction.

(4)The purposes referred to in subsection (3) are—

(a)in the case of a provider of a public electronic communications network, the provision of that network;

(b)in the case of a provider of a public electronic communications service, the provision of that service;

(c)in the case of a person who makes available facilities that are associated facilities by reference to a public electronic communications network or public electronic communications service, the making available of those facilities; or

(d)in the case of a provider of a public electronic communications network or public electronic communications service, enabling persons to make use of that network or service.

(5)A designated vendor direction must specify—

(a)the public communications provider or providers to which the direction is given;

(b)the reasons for the direction;

(c)the time at which the direction comes into force.

(6)The requirement in subsection (5)(b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the direction would be contrary to the interests of national security.

(7)A public communications provider to which a designated vendor direction is given must comply with the direction.

(8)A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.

105Z2Further provision about requirementsU.K.

(1)This section makes further provision about the requirements that may be imposed by a designated vendor direction on a public communications provider.

(2)The requirements may include, among other things—

(a)requirements prohibiting or restricting the use of goods, services or facilities supplied, provided or made available by a designated vendor specified in the direction;

(b)requirements prohibiting the installation of such goods or the taking up of such services or facilities;

(c)requirements about removing, disabling or modifying such goods or facilities;

(d)requirements about modifying such services;

(e)requirements about the manner in which such goods, services or facilities may be used.

(3)A requirement in a designated vendor direction may, among other things—

(a)relate to the use of goods, services or facilities in connection with a specified function of—

(i)the public electronic communications network provided by the provider;

(ii)the public electronic communications service provided by the provider; or

(iii)an associated facility made available by the provider that is an associated facility by reference to such a network or service (as the case may be);

(b)relate to the use of goods, services or facilities in a specified part of—

(i)the public electronic communications network provided by the provider;

(ii)the public electronic communications service provided by the provider; or

(iii)an associated facility made available by the provider that is an associated facility by reference to such a network or service (as the case may be).

(4)A requirement in a designated vendor direction may make provision by reference to, among other matters—

(a)the source of goods, services or facilities that are supplied, provided or made available by a designated vendor specified in the direction;

(b)the time at which goods, services or facilities were developed or produced (which may be a time before the passing of the Telecommunications (Security) Act 2021);

(c)the time at which goods, services or facilities were procured by, or supplied, provided or made available to, the public communications provider (which may be a time before the passing of that Act).

(5)A designated vendor direction may impose requirements that apply in specified circumstances (for example where the public communications provider is using goods, services or facilities supplied, provided or made available by one or more other specified persons).

(6)A designated vendor direction may provide for exceptions to a requirement.

(7)A requirement to do a thing must specify the period within which the thing is to be done.

(8)A period specified under subsection (7) must be such period as appears to the Secretary of State to be reasonable.

(9)In this section—

(a)a reference to a facility includes a reference to a facility, element or service that is an associated facility;

(b)“specified” means specified in a designated vendor direction.

105Z3Consultation about designated vendor directionsU.K.

(1)Before giving a designated vendor direction, the Secretary of State must consult—

(a)the public communications provider or providers which would be subject to the proposed direction, and

(b)the person or persons who would be specified as a designated vendor or vendors in the proposed direction in accordance with section 105Z1(3),

so far as it is reasonably practicable to do so.

(2)The requirement in subsection (1) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

105Z4Notice of designated vendor directionsU.K.

(1)Where a designated vendor direction is given to a public communications provider, the Secretary of State must send a copy of the direction to the designated vendor or vendors specified in the direction, if or to the extent that it is reasonably practicable to do so.

(2)The requirement in subsection (1) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the direction to that designated vendor would be contrary to the interests of national security.

(3)The Secretary of State may exclude from the copy of the direction anything the disclosure of which the Secretary of State considers—

(a)would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or

(b)would be contrary to the interests of national security.

105Z5Variation and revocation of designated vendor directionsU.K.

(1)The Secretary of State must review a designated vendor direction from time to time.

(2)The Secretary of State may—

(a)vary a designated vendor direction;

(b)revoke a designated vendor direction (whether wholly or in part).

(3)The Secretary of State may vary a designated vendor direction only if—

(a)the Secretary of State considers that the direction as varied is necessary in the interests of national security; and

(b)the Secretary of State considers that the requirements imposed by the direction as varied are proportionate to what is sought to be achieved by the direction.

(4)Before varying a designated vendor direction, the Secretary of State must consult—

(a)the public communications provider or providers which would be subject to the direction as proposed to be varied, and

(b)the person or persons who would be affected as a designated vendor or vendors by the direction as proposed to be varied,

so far as it is reasonably practicable to do so.

(5)The requirement in subsection (4) does not apply if or to extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

105Z6Notice of variation and revocation of designated vendor directionsU.K.

(1)The Secretary of State must give notice of a variation of a designated vendor direction under section 105Z5 to the public communications provider or providers subject to the direction as varied.

(2)The notice of variation must specify—

(a)how the direction is varied;

(b)the reasons for the variation;

(c)the time at which the variation, or each of them, comes into force.

(3)The requirement in subsection (2)(b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(4)The Secretary of State must send a copy of the notice of variation to the designated vendor or vendors specified in the direction as varied, if or to the extent that it is reasonably practicable to do so.

(5)The requirement in subsection (4) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the notice of variation to that designated vendor would be contrary to the interests of national security.

(6)The Secretary of State may exclude from the copy of the notice of variation anything the disclosure of which the Secretary of State considers—

(a)would, or would be likely to, prejudice to an unreasonable degree the commercial interests of the public communications provider or providers subject to the direction as varied; or

(b)would be contrary to the interests of national security.

(7)The Secretary of State must give notice of a revocation of a designated vendor direction under section 105Z5 to the public communications provider or providers subject to the direction as it had effect before the revocation.

(8)The notice of revocation must specify—

(a)the time at which the revocation comes into force;

(b)if the direction is partly revoked, what part of the direction is revoked.

(9)The Secretary of State must send a copy of the notice of revocation to the designated vendor or vendors specified in the direction as it had effect before the revocation, if or to the extent that it is reasonably practicable to do so.

(10)The requirement in subsection (9) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the notice of revocation to that designated vendor would be contrary to the interests of national security.

(11)Where the direction is partly revoked, the Secretary of State may exclude from the copy of the notice of revocation anything the disclosure of which the Secretary of State considers—

(a)would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or

(b)would be contrary to the interests of national security.

105Z7Designated vendor directions: plans for complianceU.K.

(1)This section applies where a designated vendor direction has been given to a public communications provider (and has not been revoked).

(2)The Secretary of State may from time to time require the public communications provider—

(a)to prepare a plan setting out—

(i)the steps that the provider intends to take in order to comply with such requirements imposed by the direction as the Secretary of State may specify; and

(ii)the timing of those steps; and

(b)to provide the plan to the Secretary of State.

(3)The Secretary of State may also require that the plan be provided to OFCOM.

(4)The Secretary of State may specify the period within which a plan required under this section is to be provided to the Secretary of State or OFCOM.

(5)A period specified under subsection (4) must be such period as appears to the Secretary of State to be reasonable.]

[F308105Z8Designation noticesU.K.

(1)The Secretary of State may issue a notice (“a designation notice”) designating a person for the purposes of a designated vendor direction.

(2)A designation notice may designate more than one person.

(3)The Secretary of State may issue a designation notice only if the Secretary of State considers that the notice is necessary in the interests of national security.

(4)In considering whether to designate a person, the matters to which the Secretary of State may have regard include—

(a)the nature of the goods, services or facilities that are or might be supplied, provided or made available by the person;

(b)the quality, reliability and security of those goods, services or facilities or any component of them (including the quality, reliability and security of their development or production or of the manner in which they are supplied, provided or made available);

(c)the reliability of the supply of those goods, services or facilities;

(d)the quality and reliability of the provision of maintenance or support for those goods, services or facilities;

(e)the extent to which and the manner in which goods, services or facilities supplied, provided or made available by the person are or might be used in the United Kingdom;

(f)the extent to which and the manner in which goods, services or facilities supplied, provided or made available by the person are or might be used in other countries or territories;

(g)the identity of the persons concerned in—

(i)the development or production of goods, services or facilities supplied, provided or made available by the person or any component of them;

(ii)supplying or providing such goods or services or making such facilities available; or

(iii)providing maintenance or support for such goods, services or facilities;

(h)the identity of the persons who own or control, or are associated with—

(i)the person being considered for designation; or

(ii)any person described in paragraph (g);

(i)the country or territory in which the registered office or anything similar, or any place of business, of—

(i)the person being considered for designation, or

(ii)any of the persons described in paragraph (g) or (h),

is situated;

(j)the conduct of any of the persons described in paragraph (i) as it affects or might affect the national security of any country or territory;

(k)any other connection between a country or territory and any of those persons;

(l)the degree to which any of those persons might be susceptible to being influenced or required to act contrary to the interests of national security.

(5)A designation notice must specify the reasons for the designation.

(6)The requirement in subsection (5) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(7)A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.

Textual Amendments

105Z9Further provision about designation noticesU.K.

(1)Before issuing a designation notice, the Secretary of State must consult the person or persons proposed to be designated in the notice, so far as it is reasonably practicable to do so.

(2)The requirement in subsection (1) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

(3)Where a designation notice is issued, the Secretary of State must send a copy to the person or persons designated in the notice, if or to the extent that it is reasonably practicable to do so.

Textual Amendments

105Z10Variation and revocation of designation noticesU.K.

(1)The Secretary of State must review a designation notice from time to time.

(2)The Secretary of State may—

(a)vary a designation notice;

(b)revoke a designation notice (whether wholly or in part).

(3)The Secretary of State may vary a designation notice only if the Secretary of State considers that the designation notice as varied is necessary in the interests of national security.

(4)Before varying a designation notice, the Secretary of State must consult the person, or each of the persons, proposed to be designated in the notice as varied, so far as it is reasonably practicable to do so.

(5)The requirement in subsection (4) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

(6)The Secretary of State must give notice of a variation to—

(a)any person designated by the designation notice as it had effect before the variation, and

(b)any person designated by the designation notice as varied,

if or to the extent that it is reasonably practicable to do so.

(7)The notice of variation must specify—

(a)how the designation notice is varied;

(b)the reasons for the variation;

(c)the time at which the variation, or each of them, comes into force.

(8)The requirement in subsection (7)(b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(9)The Secretary of State must give notice of a revocation to any person designated by the designation notice as it had effect before the revocation, if or to the extent that it is reasonably practicable to do so.

(10)The notice of revocation must specify—

(a)the time at which the revocation comes into force;

(b)if the designation notice is partly revoked, what part of the notice is revoked.]

Textual Amendments

[F309105Z11Laying before ParliamentU.K.

(1)The Secretary of State must lay before Parliament a copy of—

(a)a designated vendor direction;

(b)a designation notice;

(c)a notice of a variation or revocation of a designated vendor direction; and

(d)a notice of a variation or revocation of a designation notice.

(2)The requirement in subsection (1) does not apply if the Secretary of State considers that laying a copy of the direction or notice (as the case may be) before Parliament would be contrary to the interests of national security.

(3)The Secretary of State may exclude from what is laid before Parliament anything the publication of which the Secretary of State considers—

(a)would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or

(b)would be contrary to the interests of national security.]

Textual Amendments

[F310105Z12Monitoring of designated vendor directionsU.K.

(1)The Secretary of State may give OFCOM a direction (“a monitoring direction”) requiring them—

(a)to obtain information relating to a specified public communications provider’s compliance with a designated vendor direction;

(b)to prepare and send a report to the Secretary of State based on that information; and

(c)to provide to the Secretary of State on request the information on which a report falling within paragraph (b) is based.

(2)The information that OFCOM may be required to obtain under subsection (1)(a) is—

(a)information that would assist the Secretary of State in determining whether the provider has complied, is complying or is preparing to comply with—

(i)the designated vendor direction; or

(ii)a specified requirement imposed by the designated vendor direction;

(b)information about a specified matter which is relevant to compliance with a requirement imposed by the designated vendor direction;

(c)if the provider has been required to provide a plan under section 105Z7, information about whether the provider is acting in accordance with the plan.

(3)A monitoring direction may make provision about—

(a)the form of a report;

(b)the content of a report.

(4)A monitoring direction may, in particular, require a report to include—

(a)OFCOM’s analysis of information gathered by them;

(b)an explanation of their analysis.

(5)A monitoring direction may require OFCOM to give the Secretary of State separate reports on different matters.

(6)A monitoring direction may make provision about the time or times at which OFCOM must report to the Secretary of State, including provision requiring OFCOM to give reports at specified intervals.

(7)OFCOM must exercise their powers to obtain information in such manner as they consider appropriate for the purposes of preparing a report required by a monitoring direction.

(8)The Secretary of State may give OFCOM more than one monitoring direction in relation to a designated vendor direction.

(9)The Secretary of State may vary or revoke a monitoring direction.

(10)The Secretary of State must consult OFCOM before giving or varying a monitoring direction.

(11)In this section “specified” means specified in a monitoring direction.

Textual Amendments

105Z13Reports made under monitoring directionsU.K.

(1)The Secretary of State may—

(a)publish a report made by OFCOM in accordance with a monitoring direction or part of it; or

(b)disclose such a report or part of it.

(2)In publishing or disclosing a report made by OFCOM in accordance with a monitoring direction, the Secretary of State must have regard to the need to exclude from publication or disclosure, so far as is practicable, the matters which are confidential in accordance with subsections (3) and (4).

(3)A matter is confidential under this subsection if—

(a)it relates to the affairs of a particular body; and

(b)publication or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that body.

(4)A matter is confidential under this subsection if—

(a)it relates to the private affairs of an individual; and

(b)publication or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that individual.]

Textual Amendments

[F311105Z14Power of OFCOM to give inspection noticesU.K.

(1)This section applies where the Secretary of State has given OFCOM a monitoring direction relating to a public communications provider (and the monitoring direction has not been revoked).

(2)OFCOM may by notice (“an inspection notice”) given to the provider impose on the provider a duty to take any of the actions mentioned in subsection (4).

(3)OFCOM may exercise the power in subsection (2) for the purpose of obtaining—

(a)information (in any form) that would assist the Secretary of State in determining whether the provider has complied or is complying with—

(i)the designated vendor direction; or

(ii)a specified requirement imposed by the designated vendor direction;

(b)information (in any form) about a specified matter which is relevant to whether the provider has complied or is complying with a requirement imposed by the designated vendor direction.

(4)The actions are—

(a)to carry out surveys of a specified description of—

(i)the public electronic communications network provided by the provider;

(ii)the public electronic communications service provided by the provider; or

(iii)the associated facilities made available by the provider that are associated facilities by reference to such a network or service (as the case may be);

(b)to make arrangements of a specified description for another person to carry out surveys of a specified description of the network, service or associated facilities;

(c)to make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service or the making available of the associated facilities (not exceeding the number who are willing to be interviewed);

(d)to permit an authorised person to enter specified premises;

(e)to permit an authorised person to observe any operation taking place on the premises that relates to the network, service or associated facilities;

(f)to direct an authorised person to equipment or other material on the premises that is of a specified description;

(g)to direct an authorised person to documents on the premises that are of a specified description;

(h)to assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises;

(i)to comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view;

(j)to permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view;

(k)to provide an authorised person with an explanation of such documents, information, equipment or material.

(5)An inspection notice may not impose on the provider a duty to permit an authorised person to enter domestic premises.

(6)An inspection notice may not impose on the provider a duty to do anything that would result in—

(a)the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings; or

(b)a disclosure of documents or information that is prohibited by or under an enactment mentioned in section 105A(4).

(7)An inspection notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with.

(8)A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period of 28 days beginning with the day on which the inspection notice is given.

(9)In this section—

  • “authorised person” means an employee of, or person authorised by, OFCOM;

  • “domestic premises” means premises, or a part of premises, used as a dwelling;

  • “specified” means specified in an inspection notice.

Textual Amendments

105Z15Inspection notices: further provisionU.K.

(1)An inspection notice must provide information about the consequences of failing to comply with a duty imposed by the notice.

(2)An inspection notice may by further notice—

(a)be revoked by OFCOM;

(b)be varied by OFCOM so as to make it less onerous.

(3)Where an inspection notice is given to a public communications provider, the provider may not act in such a way as to defeat the purpose of the inspection notice.

(4)Where an inspection notice is given to a public communications provider, the provider must pay the costs reasonably incurred by OFCOM in connection with obtaining information by means of the inspection notice.

Textual Amendments

105Z16Inspection notices: information about entering premisesU.K.

Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (OFCOM’s annual report) must include a statement of the number of occasions during the financial year to which the report relates on which premises have been entered in pursuance of a duty imposed under section 105Z14(4)(d).

Textual Amendments

105Z17Inspection notices: enforcement of complianceU.K.

(1)Sections 96A to 100, 102 and 103 apply in relation to—

(a)a contravention of a duty imposed by an inspection notice, or

(b)a contravention of the duty imposed by section 105Z15(3),

as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition.

(2)Subsection (1) is subject to subsections (3) and (4).

(3)In its application in relation to a contravention referred to in subsection (1), section 96B(5) has effect as if the maximum penalty specified were £50,000 per day.

(4)In its application in relation to a contravention referred to in subsection (1), section 97(1) has effect as if the maximum penalty specified were £10 million.

(5)The Secretary of State may by regulations amend this section so as to substitute a different amount for the amount for the time being specified in subsection (3) or (4).

(6)No regulations are to be made containing provision authorised by subsection (5) unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

[F312105Z18Notification of contraventionU.K.

(1)Where the Secretary of State determines that there are reasonable grounds for believing that a public communications provider is contravening, or has contravened—

(a)a requirement imposed by a designated vendor direction, or

(b)a requirement under section 105Z7,

the Secretary of State may give the provider a notification under this section.

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

(a)sets out the Secretary of State’s determination;

(b)specifies the requirement and contravention in respect of which the determination is made;

(c)specifies the period during which the provider has an opportunity to make representations;

(d)specifies the steps that the Secretary of State thinks should be taken by the provider in order to—

(i)comply with the requirement;

(ii)remedy the consequences of the contravention;

(e)specifies the penalty which the Secretary of State is minded to impose.

(3)A notification under this section may be given in respect of more than one contravention.

(4)If a notification under this section relates to more than one contravention, a separate penalty may be specified under subsection (2)(e) in respect of each contravention.

(5)If a notification under this section is given in respect of a continuing contravention, it may be given in respect of any period during which the contravention has continued.

(6)If a notification under this section relates to a continuing contravention, no more than one penalty may be specified under subsection (2)(e) in respect of the period of contravention specified in the notification.

(7)Notwithstanding subsection (6), in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a)the giving of a confirmation decision under section 105Z20 which requires immediate action in respect of that contravention (see section 105Z20(6)(a)); or

(b)the expiry of any period specified in the confirmation decision for complying with the requirement being contravened.

(8)Where a notification under this section has been given to a public communications provider in respect of a contravention of a requirement, the Secretary of State 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;

(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.

Textual Amendments

105Z19Amount of penaltyU.K.

(1)The amount of a penalty that may be specified in a notification under section 105Z18 is such amount as the Secretary of State determines to be—

(a)appropriate; and

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

(2)The amount may not exceed 10 per cent of the turnover of the public communications provider’s relevant business for the relevant period, subject to subsection (3).

(3)In the case of a penalty specified under section 105Z18(7), the amount may not exceed £100,000 per day.

(4)Where the notification relates to a contravention of a requirement under section 105Z7—

(a)subsection (2) has effect as if the maximum amount specified were £10 million; and

(b)subsection (3) has effect as if the maximum amount specified were £50,000 per day.

(5)The Secretary of State may by regulations amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3) or (4)(a) or (b).

(6)No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.

(7)For the purposes of this section—

(a)the turnover of a person’s relevant business for a period is to be calculated in accordance with such rules as may be set out in an order under section 97(3)(a); and

(b)what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made is to be determined in accordance with such provision as may be made by an order under section 97(3)(a).

(8)In this section—

  • “relevant business”, in relation to a person, means (subject to the provisions of an order under section 97(3)(a)) so much of any business carried on by the person as consists in any one or more of the following—

    (a)

    the provision of a public electronic communications network;

    (b)

    the provision of a public electronic communications service;

    (c)

    the making available of facilities that are associated facilities by reference to such a network or service;

  • “relevant period”, in relation to a contravention by a person of a requirement imposed by a designated vendor direction, means—

    (a)

    except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 105Z18;

    (b)

    in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which the person has been carrying it on; and

    (c)

    in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when the person ceased to carry it on.

Textual Amendments

105Z20Enforcement of notificationU.K.

(1)This section applies where—

(a)a public communications provider has been given a notification under section 105Z18;

(b)the Secretary of State has allowed the provider an opportunity to make representations about the matters notified; and

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

(2)The Secretary of State may—

(a)give the provider a decision (“a confirmation decision”) confirming the imposition of requirements on the provider in accordance with the notification under section 105Z18; or

(b)inform the provider that no further action will be taken.

(3)The Secretary of State may not give the provider a confirmation decision unless, after considering any representations, the Secretary of State is satisfied that the provider has, in one or more of the ways specified in the notification under section 105Z18, contravened—

(a)a requirement imposed by a designated vendor direction, or

(b)a requirement imposed under section 105Z7,

specified in the notification under section 105Z18.

(4)A confirmation decision must be given to the provider without delay.

(5)A confirmation decision must include reasons for the decision.

(6)A confirmation decision may—

(a)require immediate action by the provider—

(i)to comply with the requirement specified in the notification under section 105Z18, and

(ii)to remedy the consequences of the contravention, or

(b)specify a period within which the provider must comply with that requirement and remedy those consequences,

and may specify the steps to be taken by the provider in order to comply with that requirement or remedy those consequences.

(7)A confirmation decision may require the provider to pay—

(a)the penalty specified in the notification under section 105Z18, or

(b)such lesser penalty as the Secretary of State considers appropriate in the light of—

(i)any representations made by the provider, and

(ii)any steps taken by the provider to comply with the requirement specified in the notification under section 105Z18 or to remedy the consequences of the contravention,

and may specify the period within which the penalty is to be paid.

(8)It is the duty of the provider to comply with any requirement imposed by a confirmation decision.

(9)The Secretary of State may enforce the provider’s duty in civil proceedings—

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c)for any other appropriate remedy or relief.

Textual Amendments

105Z21Enforcement of penaltyU.K.

(1)This section applies where a sum is payable to the Secretary of State as a penalty under section 105Z20.

(2)In England and Wales, the penalty is recoverable as if it were payable under an order of the county court.

(3)In Scotland, the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(4)In Northern Ireland, the penalty is recoverable as if it were payable under an order of a county court in Northern Ireland.

(5)Where action is taken under this section for the recovery of a sum payable as a penalty under section 105Z20, the penalty is—

(a)in relation to England and Wales, to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc) as if it were a judgment entered in the county court;

(b)in relation to Northern Ireland, to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order.]

Textual Amendments

[F313105Z22Urgent enforcement directionU.K.

(1)The Secretary of State may give a direction under this section (“an urgent enforcement direction”) to a person if the Secretary of State determines that—

(a)there are reasonable grounds for believing that the person is contravening, or has contravened—

(i)a requirement imposed by a designated vendor direction; or

(ii)a requirement not to disclose imposed under section 105Z25;

(b)there are reasonable grounds for suspecting that the case is an urgent case; and

(c)the urgency of the case makes it appropriate for the Secretary of State to take action under this section.

(2)A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

(a)a serious threat to national security; or

(b)significant harm to the security of a public electronic communications network, a public electronic communications service or a facility that is an associated facility by reference to such a network or service.

(3)An urgent enforcement direction must—

(a)specify the requirement and contravention in respect of which it is given;

(b)require the person to take such steps falling within subsection (4) as are specified in the direction;

(c)specify a period within which those steps must be taken; and

(d)specify the Secretary of State’s reasons for giving the direction.

(4)The steps falling within this subsection are the steps that the Secretary of State has determined are appropriate—

(a)for complying with the requirement; or

(b)for remedying the consequences of the contravention.

(5)The requirement in subsection (3)(d) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the direction would be contrary to the interests of national security.

Textual Amendments

105Z23Urgent enforcement direction: confirmationU.K.

(1)As soon as reasonably practicable after giving an urgent enforcement direction, the Secretary of State must—

(a)confirm the direction; or

(b)revoke the direction (see section 105Z24).

(2)The Secretary of State may confirm an urgent enforcement direction with or without modifications.

(3)The Secretary of State may confirm an urgent enforcement direction only if the Secretary of State has determined that—

(a)the person is contravening, or has contravened—

(i)a requirement imposed by a designated vendor direction; or

(ii)a requirement not to disclose imposed under section 105Z25;

(b)the contravention has resulted in, or creates an immediate risk of, a threat or harm described in section 105Z22(2)(a) or (b); and

(c)it is appropriate to confirm the urgent enforcement direction, with any modifications, to prevent, reduce or remove that threat or harm or immediate risk.

(4)Before confirming an urgent enforcement direction, the Secretary of State must—

(a)give notice to the person to whom the direction was given that the Secretary of State proposes to confirm the direction; and

(b)give the person—

(i)an opportunity of making representations about the grounds on which it was given and its effect; and

(ii)an opportunity of proposing steps to remedy the situation.

(5)The notice under subsection (4)(a) must—

(a)state that the Secretary of State proposes to confirm the direction;

(b)specify any proposed modifications of the direction;

(c)specify the Secretary of State’s reasons for confirming the direction and for any modifications; and

(d)specify a reasonable period for making representations.

(6)The requirement in subsection (5)(c) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(7)As soon as reasonably practicable after determining whether to confirm the direction, the Secretary of State must by notice inform the person to whom it was given of the determination.

Textual Amendments

105Z24Urgent enforcement direction: enforcementU.K.

(1)A person who is given an urgent enforcement direction must comply with it, whether or not it has been confirmed (unless it is revoked).

(2)The duty is enforceable in civil proceedings by the Secretary of State—

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c)for any other appropriate remedy or relief.]

Textual Amendments

[F314105Z25Requirement not to discloseU.K.

(1)The Secretary of State may require a public communications provider which has been given a designated vendor direction or a designated vendor who has been sent a copy under section 105Z4 not to disclose to any other person the contents of—

(a)the designated vendor direction, or

(b)a part of the designated vendor direction specified by the Secretary of State,

without the permission of the Secretary of State.

(2)The Secretary of State may require a designated vendor not to disclose to any other person the contents of—

(a)the designation notice, or

(b)a part of the designation notice specified by the Secretary of State,

without the permission of the Secretary of State.

(3)The Secretary of State may require a public communications provider which has been given a notification under section 105Z18 (notification of contravention of designated vendor direction etc) not to disclose to any other person the existence or contents of—

(a)the notification, or

(b)a part of the notification specified by the Secretary of State,

without the permission of the Secretary of State.

(4)The Secretary of State may require a public communications provider which has been given a confirmation decision under section 105Z20 (enforcement of notification under section 105Z18) not to disclose to any other person the existence or contents of—

(a)the confirmation decision, or

(b)a part of the confirmation decision specified by the Secretary of State,

without the permission of the Secretary of State.

(5)The Secretary of State may require a person who has been given an urgent enforcement direction not to disclose to any other person the existence or contents of—

(a)the urgent enforcement direction, or

(b)a part of the urgent enforcement direction specified by the Secretary of State,

without the permission of the Secretary of State.

(6)The Secretary of State may require a person who has been given a notice under section 105Z23(4)(a) or (7) (notices relating to confirmation of an urgent enforcement direction) not to disclose to any other person the existence or contents of—

(a)the notice, or

(b)a part of the notice specified by the Secretary of State,

without the permission of the Secretary of State.

(7)The Secretary of State may not impose a requirement on a person under subsection (1), (2), (3), (4), (5) or (6) unless the condition in subsection (8) is satisfied.

(8)The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for—

(a)the contents of the designated vendor direction or the part specified under subsection (1),

(b)the contents of the designation notice or the part specified under subsection (2),

(c)the existence or contents of the notification under section 105Z18 or the part specified under subsection (3),

(d)the existence or contents of the confirmation decision under section 105Z20 or the part specified under subsection (4),

(e)the existence or contents of the urgent enforcement direction or the part specified under subsection (5), or

(f)the existence or contents of the notice under section 105Z23(4)(a) or (7) or the part specified under subsection (6),

(as the case may be) to be disclosed, except as permitted by the Secretary of State.

(9)If the condition in subsection (10) is satisfied, the Secretary of State may require a person consulted under section 105Z3(1), 105Z5(4), 105Z9(1) or 105Z10(4) not to disclose to any other person—

(a)the existence of the consultation and any information disclosed to the person in the consultation, or

(b)the existence of a part of the consultation specified by the Secretary of State and any information disclosed to the person in that part of the consultation,

without the permission of the Secretary of State.

(10)The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for the matters described in subsection (9)(a) or (as the case may be) subsection (9)(b) to be disclosed, except as permitted by the Secretary of State.

(11)Where a person is subject to a requirement under this section not to disclose a matter, disclosure of that matter by an employee of the person or a person engaged in the person’s business is to be regarded as a disclosure by the person, unless the person can show that the person took all reasonable steps to prevent such a disclosure.

Textual Amendments

105Z26Enforcement of requirement not to discloseU.K.

(1)Sections 105Z18, 105Z19(1) to (3), 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement not to disclose imposed under section 105Z25 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsections (2) to (6).

(2)Section 105Z18 (as applied by this section) has effect as if, in subsection (2)(d), for sub-paragraphs (i) and (ii) there were substituted—

“(i)bring the contravention to an end;

(ii)limit the consequences of the contravention;”.

(3)Section 105Z19 (as applied by this section) has effect as if—

(a)in subsection (2), the maximum penalty specified were £10 million;

(b)in subsection (3), the maximum penalty specified were £50,000 per day.

(4)The Secretary of State may by regulations amend subsection (3) so as to substitute a different amount for the amount for the time being specified in subsection (3)(a) or (b).

(5)No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.

(6)Section 105Z20 (as applied by this section) has effect as if—

(a)in subsection (6)—

(i)in paragraph (a), for sub-paragraphs (i) and (ii) there were substituted—

“(i)to bring the contravention to an end, and

(ii)to limit the consequences of the contravention,”;

(ii)in paragraph (b), for “comply with that requirement and remedy” there were substituted “bring that contravention to an end and limit”;

(iii)in the words following paragraph (b), for “comply with that requirement or remedy” there were substituted “bring that contravention to an end or limit”;

(b)in subsection (7)(b)(ii), for the words from “comply” to “remedy” there were substituted “bring the contravention to an end or to limit”.]

Textual Amendments

[F315105Z27Power of Secretary of State to require information etcU.K.

(1)The Secretary of State may require a person falling within subsection (2) to provide the Secretary of State with such information as the Secretary of State may reasonably require for the purpose of exercising the Secretary of State’s functions under sections 105Z1 to 105Z26.

(2)The persons falling within this subsection are—

(a)a person who is or has been a public communications provider;

(b)a person not falling within paragraph (a) who appears to the Secretary of State to have information relevant to the exercise of the Secretary of State’s functions under sections 105Z1 to 105Z26.

(3)The Secretary of State may require a person falling within subsection (2)—

(a)to produce, generate or obtain information for the purpose of providing it under subsection (1);

(b)to collect or retain information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1);

(c)to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating information to be provided under subsection (1).

(4)The information that may be required under subsection (1) includes, in particular, information about—

(a)the use, or proposed use, of goods, services or facilities supplied, provided or made available by a particular person or a particular description of person;

(b)goods, services or facilities proposed to be supplied, provided or made available by a particular person or a particular description of person;

(c)goods, services or facilities proposed to be supplied, provided or made available by a person who has not, or has not recently, supplied, provided or made available for use in the United Kingdom—

(i)goods, services or facilities of that description; or

(ii)any goods, services or facilities;

(d)the manner in which a public electronic communications network or a public electronic communications service is, or is proposed to be, provided or facilities that are associated facilities by reference to such a network or service are, or are proposed to be, made available;

(e)future developments of such a network or service or such associated facilities.

(5)The Secretary of State may require a person to provide information under this section at such times or in such circumstances as may be specified by the Secretary of State.

(6)A person must comply with a requirement imposed under this section in such manner and within such reasonable period as may be specified by the Secretary of State.

(7)The powers in this section are subject to the limitations in section 105Z28.

(8)A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.

Textual Amendments

105Z28Restrictions on imposing information requirementsU.K.

(1)This section limits the purposes for which, and manner in which, requirements may be imposed under section 105Z27.

(2)The Secretary of State is not to require a person to provide information under section 105Z27 except by a notice served on the person that—

(a)describes the required information; and

(b)sets out the Secretary of State’s reasons for requiring it.

(3)The Secretary of State is not to impose a requirement on a person under section 105Z27(3) except by a notice served on the person that sets out the requirement and the Secretary of State’s reasons for imposing it.

(4)The requirements in subsections (2)(b) and (3) do not apply if or to the extent that the Secretary of State considers that setting out reasons in the notice would be contrary to the interests of national security.

(5)The Secretary of State is not to require the provision of information under section 105Z27 except 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 the Secretary of State’s functions.

(6)The Secretary of State is not to impose a requirement on a person under section 105Z27(3) except where the imposition of the requirement is proportionate to the use to which the information required to be produced, generated, obtained, collected or retained (including information required to be produced or generated by processing, collating or analysing) is to be put in the carrying out of the Secretary of State’s functions.

(7)A requirement to provide information under section 105Z27 does not require a person to disclose information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings.

Textual Amendments

105Z29Enforcement of information requirements etcU.K.

(1)Sections 105Z18, 105Z19(1) to (3), 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement under section 105Z27 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsection (2).

(2)Section 105Z19 (as applied by this section) has effect as if—

(a)in subsection (2), the maximum penalty specified were £10 million;

(b)in subsection (3), the maximum penalty specified were £50,000 per day.

(3)The Secretary of State may by regulations amend subsection (2) so as to substitute a different amount for the amount for the time being specified in subsection (2)(a) or (b).

(4)No regulations are to be made containing provision authorised by subsection (3) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

Electronic communications codeU.K.

106Application of the electronic communications codeU.K.

(1)In this Chapter “the electronic communications code” means [F316the code set out in Schedule 3A] .

F317(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 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 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

(b)the purposes of the provision by him of a system of [F318infrastructure] 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 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 network, as may be so specified or described; or

(c)for the purposes only of the provision of such [F319system of infrastructure], or part of a [F319system of infrastructure], 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 amount for the time being specified in paragraph [F32085(7)] of the code (minimum compensation).

F321(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F316Words in s. 106(1) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(4), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F317S. 106(2) omitted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by virtue of Digital Economy Act 2017 (c. 30), ss. 4(5), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F318Word in s. 106(4)(b) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(6), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F319Words in s. 106(5)(c) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(7), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F320Words in s. 106(6) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(8), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F321S. 106(7) omitted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by virtue of Digital Economy Act 2017 (c. 30), ss. 4(9), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I145S. 106 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I146S. 106 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

107Procedure for directions applying codeU.K.

(1)OFCOM are not to give a direction applying the electronic communications code in any person’s case except on an application made for the purpose by that person.

[F322(1A)Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 makes provision about the time within which an application under subsection (1) must be determined.]

(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 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—

(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.

[F323(3A)A modification may not be made under subsection (3) unless the modification is—

(a)objectively justifiable, and

(b)proportionate to what it is intended to achieve.

(3B)Before making a modification under subsection (3), OFCOM must publish a notification of the proposed modification which contains the following—

(a)a statement of the proposal,

(b)a statement of their reasons for the proposal, and

(c)a statement of the period within which representations may be made to them about the proposal.

(3C)The period specified under subsection (3B)(c) must end no less than [F32430 days] after the day of the publication of the notification.]

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

(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 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 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 106, OFCOM must—

(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—

(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—

(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 106(5);

but this subsection is subject to sections 113(7) and 115(5).

(9)The period specified as the period within which representations may be made must end no less than [F32530 days] 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 opinion, are likely to be affected by it.

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I147S. 107 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I148S. 107 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

108Register of persons in whose case code appliesU.K.

(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 106.

(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 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 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,

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

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I149S. 108 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I150S. 108 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

109Restrictions and conditions subject to which code appliesU.K.

(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 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 natural beauty and amenity of the countryside;

[F326(ba)the need to promote economic growth in the United Kingdom;]

(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 communications apparatus;

[F327(da)the need to ensure that restrictions and conditions are objectively justifiable and proportionate to what they are intended to achieve;]

(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 deals.

[F328[F329(2A)Subsection (2B) applies if the Secretary of State has complied with subsection (2)(b) in connection with any particular exercise of the power to make regulations under this section.]

(2B)The Secretary of State is to be treated as also having complied with any duty imposed in connection with that exercise of that power by any of the following—

  • section 11A(2) of the National Parks and Access to the Countryside Act 1949;

  • section 85(1) of the Countryside and Rights of Way Act 2000;

  • section 17A(1) of the Norfolk and Suffolk Broads Act 1988;

  • section 14 of the National Parks (Scotland) Act 2000 (asp 10);

  • Article 4(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (S.I. 1985/170 (N.I. 1)).]

(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—

(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 consult—

(a)OFCOM; and

(b)such other persons as he considers appropriate.

Textual Amendments

F326S. 109(2)(ba) inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(1), 35(2) (with s. 36(6))

F328S. 109(2A) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 7, 118(2)

F329S. 109(2A)(2B) inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(2), 35(2)

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

C7S. 109(4) modified (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(4), 35(2)

Commencement Information

I151S. 109 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I152S. 109 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

110Enforcement of restrictions and conditionsU.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that 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 109, they may give him 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 the contravention in respect of which that determination has been made; F330...

[F331(c)specifies the period during which the person notified has an opportunity to make representations;

(d)specifies the steps that OFCOM think should be taken by the person in order to—

(i)comply with the requirement;

(ii)remedy the consequences of the contravention;

(e)specifies any penalty which OFCOM are minded to impose in accordance with section 110A; and

(f)where the contravention is serious, specifies any direction which OFCOM are minded to give under section 113(4).]

F332(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F332(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F332(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F332(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F332(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

(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;

(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.

F333(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I153S. 110 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I154S. 110 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F334110A.Penalties for contravention of code restrictionsU.K.

(1)This section applies where a person is given a notification under section 110 which specifies a proposed penalty.

(2)Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3)Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4)But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a)the giving of a confirmation decision under section 111(4)(c) which requires immediate action; or

(b)the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5)The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—

(a)appropriate; and

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

(6)The amount of any other penalty specified in a notification under section 110 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)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).

(8)No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

111 [F335Confirmation decision] for contravention of code restrictionsU.K.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 110;

(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.

[F336(2)OFCOM may—

(a)give the notified provider a decision (a “confirmation decision”) confirming the imposition of requirements on the notified provider, or the giving of a direction to the notified provider, or both, in accordance with the notification under section 110; or

(b)notify the notified provider that they are satisfied with the representations and that no further action will be taken.

(3)OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of a requirement specified in the notification under section 110.]

[F337(4)A confirmation decision—

(a)must be given to the person without delay;

(b)must include reasons for the decision;

(c)may require immediate action by the person to comply with requirements of a kind mentioned in section 110(2)(d), or may specify a period within which the person must comply with those requirements; and

(d)may require the person to pay—

(i)the penalty specified in the notification under section 110(2)(e), or

(ii)such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.]

(5)It shall be the duty of a person to whom [F338a confirmation decision] has been given to comply with [F339any requirement imposed by it] .

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

(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.

[F340(7)A penalty imposed by a confirmation decision—

(a)must be paid to OFCOM; and

(b)if not paid within the period specified by them, is to be recoverable by them accordingly.]

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I155S. 111 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I156S. 111 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F341111A.Power to deal with urgent casesU.K.

(1)This section applies where OFCOM determine—

(a)that they are entitled to give a notification under section 110 with respect to a contravention by a person (“P”) of a requirement imposed by virtue of any restrictions or conditions under section 109;

(b)that there are reasonable grounds for suspecting that the case is an urgent case; and

(c)that the urgency of the case makes it appropriate for OFCOM to take action under this section.

(2)A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

(a)a serious threat to the safety of the public, to public health or to national security;

(b)serious economic or operational problems for persons (other than P) who are communications providers or persons who make associated facilities available; or

(c)serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

(3)OFCOM may, to the extent specified in subsection (4), give a direction suspending the application in P’s case of the electronic communications code if the electronic communications code has been applied to P by a direction under section 106.

(4)The extent of a suspension under subsection (3) must not go beyond the following applications of the code in that person’s case—

(a)its application for the purposes of electronic communications networks, or parts of such a network, which are not yet in existence at the time of the suspension;

(b)its application for the purposes of conduit systems, or parts of such systems, which are not yet in existence or not yet used for the purposes of electronic communications networks; and

(c)its application for other purposes in circumstances in which the provision of an electronic communications network, or part of such a network, would not have to cease if its application for those purposes were suspended.

(5)A direction under subsection (3), except so far as it otherwise provides, shall continue in force until such time (if any) as it is withdrawn by OFCOM.

(6)Subject to subsection (7), where the application of the electronic communications code is suspended in a person’s case, the person is not entitled to exercise any right conferred by or by virtue of the code.

(7)The suspension of the application of the electronic communications code in a person’s case does not, except so far as otherwise provided by a scheme contained in an order under section 117—

(a)affect (as between the original parties to it) any agreement entered into for the purposes of the code or any agreement having effect in accordance with it;

(b)affect anything done under the code before the suspension of its application; or

(c)require the removal of, or prohibit the use of, any apparatus lawfully installed on, in or over any premises before that suspension.

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

111B.Confirmation of direction under section 111AU.K.

(1)As soon as reasonably practicable after giving a direction under section 111A(3), OFCOM must give the person to whom it is given—

(a)an opportunity to make representations to them about the grounds on which it was given and its effect; and

(b)an opportunity to propose steps to remedy the situation.

(2)As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

(3)The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

(a)require additional time to consider representations received; or

(b)decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (2).

(4)If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(5)If not, they must exercise their power to revoke it.

(6)As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.]

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

F342112Penalties for contravention of code restrictionsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I157S. 112 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I158S. 112 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

113Suspension of application of codeU.K.

(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 [F343serious or repeated] contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);

[F344(aa)that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;]

(b)that [F345, in the case of a repeated contravention] the bringing of proceedings for the recovery of the amounts outstanding has failed to secure complete compliance by the contravening provider with the requirements to pay the charges fixed in his case, or has no reasonable prospect of securing such compliance;

(c)that [F346, in the case of a repeated contravention] an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

[F347(d)that the suspension of the application of the code is appropriate and proportionate to the contravention.]

(2)OFCOM may, to the extent specified in subsection (3), suspend the application in that person’s case of the electronic communications code if—

(a)the electronic communications code has been applied by a direction under section 106 in any person’s case; and

(b)OFCOM give a direction under section 42, 100 [F348(including that section as applied by [F349section 105S] [F350or 105Z17])], 132 or 140 for the suspension or restriction of that person’s entitlement to provide an electronic communications network, or a part of such a network.

(3)The extent, in any person’s case, of a suspension under subsection (2) must not go beyond the application of the code for the purposes of so much of an electronic communications network as that person is prohibited from providing by virtue of the suspension or restriction of his entitlement to provide such a network, or part of a network.

(4)OFCOM may, to the extent specified in subsection (5), suspend the application in that person’s case of the electronic communications code if—

(a)the electronic communications code has been applied by a direction under section 106 in any person’s case; and

(b)that person is a person in whose case there have been [F351repeated or serious] contraventions of requirements imposed by virtue of any restrictions or conditions under section 109.

(5)The extent, in any person’s case, of a suspension under subsection (4) must not go beyond the following applications of the code in his case—

(a)its application for the purposes of electronic communications networks, or parts of such a network, which are not yet in existence at the time of the suspension;

(b)its application for the purposes of conduit systems, or parts of such systems, which are not yet in existence or not yet used for the purposes of electronic communications networks; and

(c)its application for other purposes in circumstances in which the provision of an electronic communications network, or part of such a network, would not have to cease if its application for those purposes were suspended.

(6)A suspension under this section of the application of the code in any person’s case must be by a further direction given to that person by OFCOM under section 106.

(7)The statement required by section 107(8) to be included, in the case of a direction for the purposes of this section, in the statement of OFCOM’s proposal is a statement of their proposal to suspend the application of the code.

(8)A suspension of the application of the electronic communications code in any person’s case—

(a)shall cease to have effect if the suspension is under subsection (2) and the network suspension or restriction ceases to have effect; but

(b)subject to that shall continue in force until such time (if any) as it is withdrawn by OFCOM.

(9)In subsection (8) the reference to the network suspension or restriction, in relation to a suspension of the application of the electronic communications code, is a reference to the suspension or restriction of an entitlement to provide an electronic communications network, or part of such a network, which is the suspension or restriction by reference to which the application of the code was suspended under subsection (2).

(10)Subject to subsection (11), where the application of the electronic communications code is suspended in a person’s case, he shall not, while it is so suspended, be entitled to exercise any right conferred on him by or by virtue of the code.

(11)The suspension, in a person’s case, of the application of the electronic communications code does not, except so far as otherwise provided by a scheme contained in an order under section 117—

(a)affect (as between the original parties to it) any agreement entered into for the purposes of the code or any agreement having effect in accordance with it;

(b)affect anything done under the code before the suspension of its application; or

(c)require the removal of, or prohibit the use of, any apparatus lawfully installed on, in or over any premises before that suspension.

(12)Subsection (9) of section 42 applies for the purposes of subsection (1) as it applies for the purposes of that section.

[F352(13)For the purposes of subsection (4) there are repeated contraventions by a person of conditions or restrictions under section 109 if—

(a)in the case of a previous notification given to the person under section 110, OFCOM have given a confirmation decision to the person under section 111(2);

(b)in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition or restriction under section 109; and

(c)the previous confirmation decision and the subsequent ones all relate to contraventions of the same condition or restriction (whether the same contravention or different contraventions).]

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I159S. 113 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I160S. 113 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

114Procedure for directions under s. 113U.K.

(1)Except in an urgent case [F353, or a case of a single serious contravention,] , OFCOM are not to give a direction under section 113(4) suspending the application of the electronic communications code in the case of any person (“the operator”) unless they have—

(a)notified the operator of the proposed suspension and of the steps (if any) that they are proposing to take under section 117;

(b)provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation that has given rise to the proposed suspension; and

(c)considered every representation and proposal made to them during the period allowed by them for the operator to take advantage of that opportunity.

[F354(2)That period is such reasonable period as OFCOM may specify, beginning with the day on which the notification is given.]

(3)As soon as practicable after giving a direction under section 113 in an urgent case, OFCOM must provide the operator with an opportunity of—

(a)making representations about the effect of the direction and of any steps taken under section 117 in connection with the suspension; and

(b)proposing steps for remedying the situation that has given rise to the situation.

[F355(3A)As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

(3B)The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

(a)require additional time to consider representations received; or

(b)decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).

(3C)If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(3D)If not, they must revoke it.]

(4)A case is an urgent case for the purposes of this section if OFCOM—

(a)consider that it would be inappropriate, because the circumstances appearing to OFCOM to require the suspension fall within subsection (5), to allow time, before giving a direction under section 113, for the making and consideration of representations; and

(b)decide for that reason to act in accordance with subsection (3), instead of subsection (1).

(5)Circumstances 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;

(b)serious economic or operational problems for persons (apart from the operator) who are communications providers or persons who make associated facilities available; or

(c)serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I161S. 114 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I162S. 114 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

115Modification and revocation of application of codeU.K.

(1)OFCOM may at any time modify the terms on which, by virtue of section 106(5), the code is applied in a person’s case.

(2)OFCOM may revoke a direction applying the electronic communications code in a person’s case if an application for the revocation has been made by that person.

(3)If at any time it appears to OFCOM that a person in whose case the electronic communications code has been applied is not the provider of an electronic communications network or conduit system for the purposes of which the code applies, OFCOM may revoke the direction applying the code in his case.

(4)A modification or revocation under this section shall be by a further direction under section 106 to the person in whose case the electronic communications code has been applied by the direction being modified or revoked.

[F356(4A)A modification under this section may not be made unless the modification is—

(a)objectively justifiable, and

(b)proportionate to what it is intended to achieve.]

(5)The matters required by section 107(8) to be included, in the case of a direction for the purposes of this section, in the statement of OFCOM’s proposal are whichever of the following is applicable—

(a)a statement of their proposal to modify terms imposed under section 106(5);

(b)a statement of their proposal to revoke the direction applying the code.

Textual Amendments

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I163S. 115 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I164S. 115 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

116Notification of cessation by person to whom code appliesU.K.

(1)This section applies where, by virtue of a direction under section 106, the electronic communications code applies in any person’s case for the purposes of the provision by him of—

(a)an electronic communications network which is not of a description designated for the purposes of section 33; or

(b)such a system of conduits as is mentioned in section 106(4)(b).

(2)If that person ceases to provide that network or conduit system, he must notify OFCOM of that fact.

(3)A notification under this section must be given within such period and in such manner as may be required by OFCOM.

(4)OFCOM may impose a penalty on a person who fails to comply with a requirement imposed by or under this section.

(5)The amount of a penalty imposed on a person under this section is to be such amount not exceeding £1,000 as OFCOM may determine to be both—

(a)appropriate; and

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

(6)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 within which the penalty is to be paid.

(7)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.

(8)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).

(9)No order is to be made containing provision authorised by subsection (8) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I165S. 116 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I166S. 116 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

117Transitional schemes on cessation of application of codeU.K.

(1)Where it appears to OFCOM—

(a)that the electronic communications code has ceased or is to cease to apply, to any extent, in the case of any person (“the former operator”),

(b)that it has ceased or will cease so to apply for either of the reasons specified in subsection (2), and

(c)that it is appropriate for transitional provision to be made in connection with it ceasing to apply in the case of the former operator,

they may by order make a scheme containing any such transitional provision as they think fit in that case.

(2)Those reasons are—

(a)the suspension under section 113 of the application of the code in the former operator’s case;

(b)the revocation or modification under section 115 of the direction applying the code in his case.

(3)A scheme contained in an order under this section may, in particular—

(a)impose any one or more obligations falling within subsection (4) on the former operator;

(b)provide for those obligations to be enforceable in such manner (otherwise than by criminal penalties) and by such persons as may be specified in the scheme;

(c)authorise the retention of apparatus on any land pending its subsequent use for the purposes of an electronic communications network, electronic communications service or conduit system to be provided by any person;

(d)provide for the transfer to such persons as may be specified in, or determined in accordance with, the scheme of any rights or liabilities arising out of any agreement or other obligation entered into or incurred in pursuance of the code by the former operator;

(e)provide, for the purposes of any provision contained in the scheme by virtue of any of the preceding paragraphs, for such questions arising under the scheme as are specified in the scheme, or are of a description so specified, to be referred to, and determined by, OFCOM.

(4)The obligations referred to in subsection (3)(a) are—

(a)an obligation to remove anything installed in pursuance of any right conferred by or in accordance with the code;

(b)an obligation to restore land to its condition before anything was done in pursuance of any such right; or

(c)an obligation to pay the expenses of any such removal or restoration.

(5)Sections 110 to 112 apply in relation to the requirements imposed by virtue of a scheme contained in an order under this section as they apply in relation to a requirement imposed by virtue of restrictions or conditions under section 109.

(6)Section 403 applies to the power of OFCOM to make an order under this section.

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I167S. 117 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I168S. 117 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

118Compulsory acquisition of land etc.U.K.

Schedule 4 (which provides for compulsory acquisition of land by the provider of an electronic communications network in whose case the electronic communications code applies and for entry on land by persons nominated by such a provider) shall have effect.

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I169S. 118 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I170S. 118 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

119Power to give assistance in relation to certain proceedingsU.K.

(1)This section applies where any actual or prospective party to any proceedings falling within subsection (2) (other than the operator, within the meaning of the electronic communications code) applies to OFCOM for assistance under this section in relation to those proceedings.

(2)The proceedings falling within this subsection are any actual or prospective proceedings in which there falls to be determined any question arising under, or in connection with—

(a)the electronic communications code as applied in any person’s case by a direction under section 106; or

(b)any restriction or condition subject to which that code applies.

(3)OFCOM may grant the application if, on any one or more of the following grounds, they think fit to do so—

(a)on the ground that the case raises a question of principle;

(b)on the ground that it is unreasonable, having regard to the complexity of the case or to any other matter, to expect the applicant to deal with the case without assistance under this section;

(c)by reason of any other special consideration.

(4)Assistance by OFCOM under this section may include—

(a)giving advice or arranging for the giving of advice by a solicitor or counsel;

(b)procuring or attempting to procure the settlement of the matter in dispute;

(c)arranging for the giving of any assistance usually given by a solicitor or counsel—

(i)in the steps preliminary or incidental to proceedings; or

(ii)in arriving at, or giving effect to, a compromise to avoid proceedings or to bring them to an end;

(d)arranging for representation by a solicitor or counsel;

(e)arranging for the giving of any other assistance by a solicitor or counsel;

(f)any other form of assistance which OFCOM consider appropriate.

(5)Nothing in subsection (4)(d) shall be taken to affect the law and practice regulating the descriptions of persons who may appear in, conduct or defend any proceedings, or who may address the court in any proceedings.

(6)In so far as expenses are incurred by OFCOM in providing the applicant with assistance under this section, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of OFCOM—

(a)on any costs or expenses which (whether by virtue of a judgment or order of a court, or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and

(b)so far as relates to costs or expenses, on the applicant’s rights under a compromise or settlement arrived at in connection with that matter to avoid proceedings, or to bring them to an end.

(7)A charge conferred by subsection (6) is subject to—

(a)any charge imposed by [F357section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012] and any provision made by or under Part 1 of that Act for the payment of any sum to the [F358Lord Chancellor] ;

(b)any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 (c. 47); or

(c)any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).

Textual Amendments

F357Words in s. 119(7)(a) substituted (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 para. 61(a); S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

F358Words in s. 119(7)(a) substituted (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 para. 61(b); S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

Modifications etc. (not altering text)

C6Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information

I171S. 119 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I172S. 119 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Regulation of premium rate servicesU.K.

120Conditions regulating premium rate servicesU.K.

(1)OFCOM shall have the power, for the purpose of regulating the provision, content, promotion and marketing of premium rate services, to set conditions under this section that bind the persons to whom they are applied.

(2)Conditions under this section may be applied either—

(a)generally to every person who provides a premium rate service; or

(b)to every person who is of a specified description of such persons, or who provides a specified description of such services.

(3)The only provision that may be made by conditions under this section is provision requiring the person to whom the condition applies to comply, to the extent required by the condition, with—

[F359(za)the provisions of an approved code;]

(a)directions given in accordance with an approved code by the enforcement authority and for the purpose of enforcing its provisions; and

(b)if there is no such code, the provisions of the order for the time being in force under section 122.

(4)The power to set a condition under this section includes power to modify or revoke the conditions for the time being in force under this section.

(5)[F360Section 47 applies] to the setting, modification and revocation of a condition under this section as [F360it applies] to the setting, modification and revocation of a condition under section 45.

F361(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)A service is a premium rate service for the purposes of this Chapter if—

(a)it is a service falling within subsection (8);

(b)there is a charge for the provision of the service;

(c)the charge is required to be paid to a person providing an electronic communications service by means of which the service in question is provided; and

(d)that charge is imposed in the form of a charge made by that person for the use of the electronic communications service.

(8)A service falls within this subsection if its provision consists in—

(a)the provision of the contents of communications transmitted by means of an electronic communications network; or

(b)allowing the user of an electronic communications service to make use, by the making of a transmission by means of that service, of a facility made available to the users of the electronic communications service.

(9)For the purposes of this Chapter a person provides a premium rate service (“the relevant service”) if—

(a)he provides the contents of the relevant service;

(b)he exercises editorial control over the contents of the relevant service;

(c)he is a person who packages together the contents of the relevant service for the purpose of facilitating its provision;

(d)he makes available a facility comprised in the relevant service; or

(e)he falls within subsection (10), (11) or (12).

(10)A person falls within this subsection if—

(a)he is the provider of an electronic communications service used for the provision of the relevant service; and

(b)under arrangements made with a person who is a provider of the relevant service falling within subsection (9)(a) to (d), he is entitled to retain some or all of the charges received by him in respect of the provision of the relevant service or of the use of his electronic communications service for the purposes of the relevant service.

(11)A person falls within this subsection if—

(a)he is the provider of an electronic communications network used for the provision of the relevant service; and

(b)an agreement relating to the use of the network for the provision of that service subsists between the provider of the network and a person who is a provider of the relevant service falling within subsection (9)(a) to (d).

(12)A person falls within this subsection if—

(a)he is the provider of an electronic communications network used for the provision of the relevant service; and

(b)the use of that network for the provision of premium rate services, or of services that include or may include premium rate services, is authorised by an agreement subsisting between that person and either an intermediary service provider or a person who is a provider of the relevant service by virtue of subsection (10) or (11).

(13)Where one or more persons are employed or engaged under the direction of another to do any of the things mentioned in subsection (9)(a) to (d), only that other person shall be a provider of the relevant service for the purposes of this Chapter.

(14)References in this section to a facility include, in particular, references to—

(a)a facility for making a payment for goods or services;

(b)a facility for entering a competition or claiming a prize; and

(c)a facility for registering a vote or recording a preference.

(15)In this section—

  • “approved code” means a code for the time being approved under section 121;

  • “enforcement authority”, in relation to such a code, means the person who under the code has the function of enforcing it; and

  • “intermediary service provider” means a person who—

    (a)

    provides an electronic communications service used for the provision of the relevant service or an electronic communications network so used; and

    (b)

    is a party to an agreement with—

    (i)

    a provider of the relevant service falling within subsection (9)(a) to (d), or

    (ii)

    another intermediary service provider,

    which relates to the use of that electronic communications service or network for the provision of premium rate services, or of services that include or may include premium rate services.

Textual Amendments

F359S. 120(3)(za) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(1), 100(5); S.I. 2015/1630, art. 3(e) (with art. 7)

Modifications etc. (not altering text)

Commencement Information

I173S. 120 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F362120A.Procedure for setting, modifying and revoking premium rate services conditionsU.K.

(1)The way in which conditions are to be set or modified under section 120 is by the publication of a notification setting out the conditions or modifications.

(2)The way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.

(3)Before setting such conditions, or modifying or revoking a condition so set, OFCOM must publish a notification—

(a)stating that they are proposing to set, modify or revoke the conditions that are specified in the notification;

(b)setting out the effect of those conditions, modifications or revocations;

(c)giving their reasons for making the proposal; and

(d)specifying the period within which representations may be made to OFCOM about their proposal.

(3)That period must end no less than one month after the day of the publication of the notification.

(4)But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

(5)OFCOM may give effect to the proposal, with any modifications that appear to OFCOM to be appropriate, after—

(a)considering every representation about the proposal made to them during the period specified in the notification; and

(b)having regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(6)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by its contents.

(7)OFCOM must send a copy of every notification published under this section to the Secretary of State.]

Textual Amendments

Modifications etc. (not altering text)

121Approval of code for premium rate servicesU.K.

(1)If it appears to OFCOM—

(a)that a code has been made by any person for regulating the provision and contents of premium rate services, and the facilities made available in the provision of such services;

(b)that the code contains provision for regulating, to such extent (if any) as they think fit, the arrangements made by the providers of premium rate services for promoting and marketing those services; and

(c)that it would be appropriate for them to approve that code for the purposes of section 120,

they may approve that code for those purposes.

(2)OFCOM are not to approve a code for those purposes unless they are satisfied—

(a)that there is a person who, under the code, has the function of administering and enforcing it; and

(b)that that person is sufficiently independent of the providers of premium rate services;

(c)that adequate arrangements are in force for funding the activities of that person in relation to the code;

(d)that the provisions of the code are objectively justifiable in relation to the services to which it relates;

(e)that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(f)that those provisions are proportionate to what they are intended to achieve; and

(g)that, in relation to what those provisions are intended to achieve, they are transparent.

(3)OFCOM are not for those purposes to approve so much of a code as imposes an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless they are satisfied that the obligation—

(a)arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;

(b)arises only after a notice identifying the service and setting out respects in which requirements of the code have been contravened in relation to it has been given to the relevant provider by the person responsible for enforcing the code; and

(c)is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.

(4)The provision that may be contained in a code and approved under this section includes, in particular, provision about the pricing of premium rate services and provision for the enforcement of the code.

(5)The provision for the enforcement of a code that may be approved under this section includes—

(a)provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 123(2);

[F363(aa)provision that applies where there is or has been more than one contravention of the code or directions given in accordance with it by a person and which enables—

(i)a single penalty (which does not exceed that maximum penalty) to be imposed on the person in respect of all of those contraventions, or

(ii)separate penalties (each of which does not exceed that maximum penalty) to be imposed on the person in respect of each of those contraventions,

according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;]

(b)provision requiring a provider of a premium rate service to secure that the provision of the service is suspended or otherwise ceases or is restricted in any respect;

(c)provision for the imposition on a person, in respect of a contravention of the code, of a temporary or permanent prohibition or restriction on his working in connection with the provision of premium rate services or, in the case of a body corporate, on its providing such services or on its carrying on other activities in connection with their provision.

(6)OFCOM may, at any time, for the purposes of section 120—

(a)approve modifications that have been made to an approved code; or

(b)withdraw their approval from an approved code.

(7)Where OFCOM give or withdraw an approval for the purposes of section 120, they must give notification of their approval or of its withdrawal.

(8)The notification must be published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the approval or withdrawal.

Textual Amendments

F363S. 121(5)(aa) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(2), 100(5); S.I. 2015/1630, art. 3(e) (with art. 7)

Modifications etc. (not altering text)

Commencement Information

I174S. 121 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

122Orders by OFCOM in the absence of a code under s. 121U.K.

(1)OFCOM may make an order under this section if, at any time, they consider that there is no code in force to which they think it would be appropriate to give, or to continue to give, their approval under section 121.

(2)An order under this section may make such of the following provisions as OFCOM think fit—

(a)provision imposing requirements with respect to the provision and contents of premium rate services, and with respect to the facilities made available in the provision of such services (including provision about pricing);

(b)provision imposing requirements with respect to the arrangements made by the providers of premium rate services for the promotion and marketing of those services;

(c)provision for the enforcement of requirements imposed by virtue of paragraph (a) or (b);

(d)provision making other arrangements for the purposes of those requirements.

(3)The power to make provision by an order under this section includes, in particular—

(a)power to establish a body corporate with the capacity to make its own rules and to establish its own procedures;

(b)power to determine the jurisdiction of a body established by such an order or, for the purposes of the order, of any other person;

(c)power to confer jurisdiction with respect to any matter on OFCOM themselves;

(d)power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e)power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order;

(f)power to make provision falling within section 121(5)(c) for the enforcement of the provisions of the order; and

(g)power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4)An order under this section may require such providers of premium rate services as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a)the establishment and maintenance, in accordance with such an order, of any body corporate or procedure; or

(b)the making of other arrangements for the purposes of the requirements of such an order.

(5)An order under this section is not to impose an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless the obligation—

(a)arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;

(b)arises only after a notice identifying the service and setting out respects in which requirements of the order have been contravened in relation to it has been given to the relevant provider by OFCOM; and

(c)is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.

(6)The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(7)Section 403 applies to the power of OFCOM to make an order under this section.

(8)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Modifications etc. (not altering text)

Commencement Information

I175S. 122 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

123Enforcement of s. 120 conditionsU.K.

(1)Sections 94 to 96 apply in relation to a contravention of conditions set under section 120 as they apply in relation to a contravention of a condition set under section 45.

[F364(1A)Subsection (1B) applies where a notification under section 94 as applied by this section relates to more than one contravention of—

(a)a code approved under section 121,

(b)directions given in accordance with such a code, or

(c)an order under section 122.

(1B)Section 96(3) as applied by this section enables OFCOM to impose—

(a)a single penalty in respect of all of those contraventions, or

(b)separate penalties in respect of each of those contraventions,

according to whether OFCOM determine that a single penalty or separate penalties are appropriate and proportionate to those contraventions.]

(2)The amount of [F365each penalty] imposed under section 96 as applied by this section is to be such amount not exceeding [F366£250,000] as OFCOM determine to be—

(a)appropriate; and

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

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

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

(b)any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94 (as applied); and

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

(4)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 (2).

(5)No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Textual Amendments

F364S. 123(1A)(1B) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(4), 100(5); S.I. 2015/1630, art. 3(e) (with art. 7)

F365Words in s. 123(2) substituted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(5), 100(5); S.I. 2015/1630, art. 3(e) (with art. 7)

Modifications etc. (not altering text)

Commencement Information

I176S. 123 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

124Suspending service provision for contraventions of s. 120 conditionsU.K.

(1)OFCOM may give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—

(a)that he is or has been in serious and repeated contravention of conditions set under section 120;

(b)that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 (as applied by section 123) or both, to secure compliance with the contravened conditions has failed;

(c)that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions; and

(d)that the giving of the direction is required for reasons of public policy.

(2)OFCOM may also give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—

(a)that he is, or has been, in contravention of conditions set under section 120 in respect of a premium rate service;

(b)that the circumstances of the contravention make it appropriate for OFCOM to suspend or restrict the provision of premium rate services provided by the contravening provider without the conditions set out in subsection (1) being satisfied; and

(c)that in those circumstances the giving of the direction is urgently required for reasons of public policy.

(3)A direction under this section is—

(a)a direction to the contravening provider to secure the suspension of the provision of premium rate services provided by him; or

(b)a direction requiring him to secure compliance with restrictions, set out in the direction, on the provision of such services.

(4)A direction under this section—

(a)must specify the services 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.

(5)A direction under this section—

(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 conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(6)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

(b)in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(7)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

(c)to such extent and in relation to such services as they may determine.

(8)Sections 102 and 103 apply in the case of a direction under this section as they apply in the case of a direction under section 100, but as if references in section 103(1) to an electronic communications network or electronic communications service were references to a premium rate service.

(9)For the purposes of this section there are repeated contraventions by a person of conditions set under section 120 to the extent that—

(a)in the case of a previous notification given to that person under section section 94 (as applied by section 123), OFCOM have determined for the purposes of section 95(2) or 96(2) (as so applied) 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 a condition set under section 120.

(10)For the purposes of this section the seriousness of repeated contraventions of conditions set under section 120 has to be determined by reference to the seriousness of the contraventions of the approved code or order by reference to which the conditions have effect.

Modifications etc. (not altering text)

Commencement Information

I177S. 124 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F367Online infringement of copyright: obligations of internet service providersU.K.

Textual Amendments

F367S. 124A and cross-heading inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 3, 47(1)

124AObligation to notify subscribers of copyright infringement reportsU.K.

(1)This section applies if it appears to a copyright owner that—

(a)a subscriber to an internet access service has infringed the owner's copyright by means of the service; or

(b)a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service.

(2)The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an “initial obligations code”) allows the owner to do so.

(3)A “copyright infringement report” is a report that—

(a)states that there appears to have been an infringement of the owner's copyright;

(b)includes a description of the apparent infringement;

(c)includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;

(d)is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered; and

(e)complies with any other requirement of the initial obligations code.

(4)An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so.

(5)A notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.

(6)A notification under subsection (4) must include—

(a)a statement that the notification is sent under this section in response to a copyright infringement report;

(b)the name of the copyright owner who made the report;

(c)a description of the apparent infringement;

(d)evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;

(e)information about subscriber appeals and the grounds on which they may be made;

(f)information about copyright and its purpose;

(g)advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works;

(h)advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use; and

(i)anything else that the initial obligations code requires the notification to include.

(7)For the purposes of subsection (6)(h) the internet service provider must take into account the suitability of different protection for subscribers in different circumstances.

(8)The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular—

(a)a statement that information about the apparent infringement may be kept by the internet service provider;

(b)a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber;

(c)a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement; and

(d)where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures.

(9)In this section “notify”, in relation to a subscriber, means send a notification to the electronic or postal address held by the internet service provider for the subscriber (and sections 394 to 396 do not apply).]

[F368124BObligation to provide copyright infringement lists to copyright ownersU.K.

(1)An internet service provider must provide a copyright owner with a copyright infringement list for a period if—

(a)the owner requests the list for that period; and

(b)an initial obligations code requires the internet service provider to provide it.

(2)A “copyright infringement list” is a list that—

(a)sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but

(b)does not enable any subscriber to be identified.

(3)A subscriber is a “relevant subscriber” in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code.]

Textual Amendments

F368S. 124B inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 4, 47(1)

[F369124CApproval of code about the initial obligationsU.K.

(1)The obligations of internet service providers under sections 124A and 124B are the “initial obligations”.

(2)If it appears to OFCOM—

(a)that a code has been made by any person for the purpose of regulating the initial obligations; and

(b)that it would be appropriate for them to approve the code for that purpose,

they may by order approve it, with effect from the date given in the order.

(3)The provision that may be contained in a code and approved under this section includes provision that—

(a)specifies conditions that must be met for rights and obligations under the copyright infringement provisions or the code to apply in a particular case;

(b)requires copyright owners or internet service providers to provide any information or assistance that is reasonably required to determine whether a condition under paragraph (a) is met.

(4)The provision mentioned in subsection (3)(a) may, in particular, specify that a right or obligation does not apply in relation to a copyright owner unless the owner has made arrangements with an internet service provider regarding—

(a)the number of copyright infringement reports that the owner may make to the provider within a particular period; and

(b)payment in advance of a contribution towards meeting costs incurred by the provider.

(5)The provision mentioned in subsection (3)(a) may also, in particular, provide that—

(a)except as provided by the code, rights and obligations do not apply in relation to an internet service provider unless the number of copyright infringement reports the provider receives within a particular period reaches a threshold set in the code; and

(b)if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time.

(6)OFCOM must not approve a code under this section unless satisfied that it meets the criteria set out in section 124E.

(7)Not more than one approved code may have effect at a time.

(8)OFCOM must keep an approved code under review.

(9)OFCOM may by order, at any time, for the purpose mentioned in subsection (2)—

(a)approve modifications that have been made to an approved code; or

(b)withdraw their approval from an approved code,

with effect from the date given in the order, and must do so if the code ceases to meet the criteria set out in section 124E.

(10)The consent of the Secretary of State is required for the approval of a code or the modification of an approved code.

(11)An order made by OFCOM under this section approving a code or modification must set out the code or modification.

(12)Section 403 applies to the power of OFCOM to make an order under this section.

(13)A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F369S. 124C inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 5, 47(2)(a)

[F370124DInitial obligations code by OFCOM in the absence of an approved codeU.K.

(1)For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations.

(2)OFCOM may but need not make a code under subsection (1) for a time before the end of—

(a)the period of six months beginning with the day on which sections 124A and 124B come into force, or

(b)such longer period as the Secretary of State may specify by notice to OFCOM.

(3)The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b).

(4)A code under this section may do any of the things mentioned in section 124C(3) to (5).

(5)A code under this section may also—

(a)confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;

(b)provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;

(c)provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code;

(d)make other provision for the enforcement of such awards and directions;

(e)establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;

(f)provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person;

(g)make other provision for the enforcement of such awards and directions; and

(h)make other provision for the purpose of regulating the initial obligations.

(6)OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124E.

(7)OFCOM must—

(a)keep a code under this section under review; and

(b)by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124E.

(8)The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.

(9)Section 403 applies to the power of OFCOM to make an order under this section.

(10)A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F370S. 124D inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 6, 47(2)(a)

[F371124EContents of initial obligations codeU.K.

(1)The criteria referred to in sections 124C(6) and 124D(6) are—

(a)that the code makes the required provision about copyright infringement reports (see subsection (2));

(b)that it makes the required provision about the notification of subscribers (see subsections (3) and (4));

(c)that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the meaning of section 124B(3) (see subsections (5) and (6));

(d)that it makes provision about how internet service providers are to keep information about subscribers;

(e)that it limits the time for which they may keep that information;

(f)that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M;

(g)that the requirements concerning administration and enforcement are met in relation to the code (see subsections (7) and (8));

(h)that the requirements concerning subscriber appeals are met in relation to the code (see section 124K);

(i)that the provisions of the code are objectively justifiable in relation to the matters to which it relates;

(j)that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(k)that those provisions are proportionate to what they are intended to achieve; and

(l)that, in relation to what those provisions are intended to achieve, they are transparent.

(2)The required provision about copyright infringement reports is provision that specifies—

(a)requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report;

(b)the standard of evidence that must be included; and

(c)the required form of the report.

(3)The required provision about the notification of subscribers is provision that specifies, in relation to a subscriber in relation to whom an internet service provider receives one or more copyright infringement reports—

(a)requirements as to the means by which the provider identifies the subscriber;

(b)which of the reports the provider must notify the subscriber of; and

(c)requirements as to the form, contents and means of the notification in each case.

(4)The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification.

(5)The threshold applying in accordance with subsection (1)(c) may, subject to subsection (6), be set by reference to any matter, including in particular one or more of—

(a)the number of copyright infringement reports;

(b)the time within which the reports are made; and

(c)the time of the apparent infringements to which they relate.

(6)The threshold applying in accordance with subsection (1)(c) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date; and a copyright infringement list provided under section 124B must not take into account any such report.

(7)The requirements concerning administration and enforcement are—

(a)that OFCOM have, under the code, the functions of administering and enforcing it, including the function of resolving owner-provider disputes;

(b)that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c)that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.

(8)The provision mentioned in subsection (7) may include, in particular—

(a)provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2);

(b)provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's failure to comply with the code or the copyright infringement provisions.

(9)In this section “owner-provider dispute” means a dispute that—

(a)is between persons who are copyright owners or internet service providers; and

(b)relates to an act or omission in relation to an initial obligation or an initial obligations code.]

Textual Amendments

F371S. 124E inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 7, 47(2)(a)

[F372124FProgress reportsU.K.

(1)OFCOM must prepare the following reports for the Secretary of State about the infringement of copyright by subscribers to internet access services.

(2)OFCOM must prepare a full report for—

(a)the period of 12 months beginning with the first day on which there is an initial obligations code in force; and

(b)each successive period of 12 months.

(3)OFCOM must prepare an interim report for—

(a)the period of 3 months beginning with the first day on which there is an initial obligations code in force; and

(b)each successive period of 3 months, other than one ending at the same time as a period of 12 months under subsection (2).

But this is subject to any direction by the Secretary of State under subsection (4).

(4)The Secretary of State may direct that subsection (3) no longer applies, with effect from the date given in the direction.

(5)A full report under this section must include—

(a)an assessment of the current level of subscribers' use of internet access services to infringe copyright;

(b)a description of the steps taken by copyright owners to enable subscribers to obtain lawful access to copyright works;

(c)a description of the steps taken by copyright owners to inform, and change the attitude of, members of the public in relation to the infringement of copyright;

(d)an assessment of the extent of the steps mentioned in paragraphs (b) and (c);

(e)an assessment of the extent to which copyright owners have made copyright infringement reports;

(f)an assessment of the extent to which they have brought legal proceedings against subscribers in relation to whom such reports have been made;

(g)an assessment of the extent to which any such proceedings have been against subscribers in relation to whom a substantial number of reports have been made; and

(h)anything else that the Secretary of State directs OFCOM to include in the report.

(6)An interim report under this section must include—

(a)the assessments mentioned in subsection (5)(a), (e) and (f); and

(b)anything else that the Secretary of State directs OFCOM to include in the report.

(7)OFCOM must send a report prepared under this section to the Secretary of State as soon as practicable after the end of the period for which it is prepared.

(8)OFCOM must publish every full report under this section—

(a)as soon as practicable after they send it to the Secretary of State, and

(b)in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(9)OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.]

Textual Amendments

F372S. 124F inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 8, 47(1)

[F373124GObligations to limit internet access: assessment and preparationU.K.

(1)The Secretary of State may direct OFCOM to—

(a)assess whether one or more technical obligations should be imposed on internet service providers;

(b)take steps to prepare for the obligations;

(c)provide a report on the assessment or steps to the Secretary of State.

(2)A “technical obligation”, in relation to an internet service provider, is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet.

(3)A “technical measure” is a measure that—

(a)limits the speed or other capacity of the service provided to a subscriber;

(b)prevents a subscriber from using the service to gain access to particular material, or limits such use;

(c)suspends the service provided to a subscriber; or

(d)limits the service provided to a subscriber in another way.

(4)A subscriber to an internet access service is “relevant” if the subscriber is a relevant subscriber, within the meaning of section 124B(3), in relation to the provider of the service and one or more copyright owners.

(5)The assessment and steps that the Secretary of State may direct OFCOM to carry out or take under subsection (1) include, in particular—

(a)consultation of copyright owners, internet service providers, subscribers or any other person;

(b)an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service; and

(c)steps to prepare a proposed technical obligations code.

(6)Internet service providers and copyright owners must give OFCOM any assistance that OFCOM reasonably require for the purposes of complying with any direction under this section.

(7)The Secretary of State must lay before Parliament any direction under this section.

(8)OFCOM must publish every report under this section—

(a)as soon as practicable after they send it to the Secretary of State, and

(b)in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(9)OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.]

Textual Amendments

F373S. 124G inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 9, 47(1)

[F374124HObligations to limit internet accessU.K.

(1)The Secretary of State may by order impose a technical obligation on internet service providers if—

(a)OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and

(b)taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order.

(2)No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force.

(3)An order under this section must specify the date from which the technical obligation is to have effect, or provide for it to be specified.

(4)The order may also specify—

(a)the criteria for taking the technical measure concerned against a subscriber;

(b)the steps to be taken as part of the measure and when they are to be taken.

(5)No order is to be made under this section unless—

(a)the Secretary of State has complied with subsections (6) to (10), and

(b)a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6)If the Secretary of State proposes to make an order under this section, the Secretary of State must lay before Parliament a document that—

(a)explains the proposal, and

(b)sets it out in the form of a draft order.

(7)During the period of 60 days beginning with the day on which the document was laid under subsection (6) (“the 60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications).

(8)In preparing a draft order under this section to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a)any representations, and

(b)any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(9)When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6).

(10)In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.]

Textual Amendments

F374S. 124H inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 10, 47(1)

[F375124ICode by OFCOM about obligations to limit internet accessU.K.

(1)For any period during which there are one or more technical obligations in force under section 124H, OFCOM must by order make a technical obligations code for the purpose of regulating those obligations.

(2)The code may be made separately from, or in combination with, any initial obligations code under section 124D.

(3)A code under this section may—

(a)do any of the things mentioned in section 124C(3) to (5) or section 124D(5)(a) to (g); and

(b)make other provision for the purpose of regulating the technical obligations.

(4)OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124J.

(5)OFCOM must—

(a)keep a code under this section under review; and

(b)by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124J.

(6)The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.

(7)Section 403 applies to the power of OFCOM to make an order under this section.

(8)A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F375S. 124I inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 11, 47(1)

[F376124JContents of code about obligations to limit internet accessU.K.

(1)The criteria referred to in section 124I(4) are—

(a)that the requirements concerning enforcement and related matters are met in relation to the code (see subsections (2) and (3));

(b)that the requirements concerning subscriber appeals are met in relation to the code (see section 124K);

(c)that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M;

(d)that it makes any other provision that the Secretary of State requires it to make;

(e)that the provisions of the code are objectively justifiable in relation to the matters to which it relates;

(f)that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(g)that those provisions are proportionate to what they are intended to achieve; and

(h)that, in relation to what those provisions are intended to achieve, they are transparent.

(2)The requirements concerning enforcement and related matters are—

(a)that OFCOM have, under the code, the functions of administering and enforcing it, including the function of resolving owner-provider disputes;

(b)that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c)that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.

(3)The provision made concerning enforcement and related matters may also (unless the Secretary of State requires otherwise) include, in particular—

(a)provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2);

(b)provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's infringement or error in relation to the code or the copyright infringement provisions.

(4)In this section “owner-provider dispute” means a dispute that—

(a)is between persons who are copyright owners or internet service providers; and

(b)relates to an act or omission in relation to a technical obligation or a technical obligations code.]

Textual Amendments

F376S. 124J inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 12, 47(1)

[F377124KSubscriber appealsU.K.

(1)The requirements concerning subscriber appeals are—

(a)for the purposes of section 124E(1)(h), the requirements of subsections (2) to (8); and

(b)for the purposes of section 124J(1)(b), the requirements of subsections (2) to (11).

(2)The requirements of this subsection are—

(a)that the code confers on subscribers the right to bring a subscriber appeal and, in the case of a technical obligations code, a further right of appeal to the First-tier Tribunal;

(b)that there is a person who, under the code, has the function of determining subscriber appeals;

(c)that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM; and

(d)that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned.

(3)The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following—

(a)that the apparent infringement to which the report relates was not an infringement of copyright;

(b)that the report does not relate to the subscriber's IP address at the time of the apparent infringement.

(4)The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code.

(5)The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done (or, if there is more than one such report, as respects each of them)—

(a)the apparent infringement was an infringement of copyright, and

(b)the report relates to the subscriber's IP address at the time of that infringement.

(6)The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that—

(a)the act constituting the apparent infringement to which the report relates was not done by the subscriber, and

(b)the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.

(7)The powers of the person determining subscriber appeals must include power—

(a)to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is determined in favour of the subscriber;

(b)to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and

(c)where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber.

(8)The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.

(9)In the case of a technical obligations code, the powers of the person determining subscriber appeals must include power—

(a)on an appeal in relation to a technical measure or proposed technical measure—

(i)to confirm the measure;

(ii)to require the measure not to be taken or to be withdrawn;

(iii)to substitute any other technical measure that the internet service provider has power to take;

(b)to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power;

(c)to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure; and

(d)to remit the decision whether to confirm the technical measure, or any matter relating to that decision, to OFCOM.

(10)In the case of a technical obligations code, the code must make provision—

(a)enabling a determination of a subscriber appeal to be appealed to the First-tier Tribunal, including on grounds that it was based on an error of fact, wrong in law or unreasonable;

(b)giving the First-tier Tribunal, in relation to an appeal to it, the powers mentioned in subsections (7) and (9); and

(c)in relation to recovery of costs awarded by the Tribunal.

(11)In the case of a technical obligations code, the code must include provision to secure that a technical measure is not taken against a subscriber until—

(a)the period for bringing a subscriber appeal, or any further appeal to the First-tier Tribunal, in relation to the proposed measure has ended (or the subscriber has waived the right to appeal); and

(b)any such subscriber appeal or further appeal has been determined, abandoned or otherwise disposed of.]

Textual Amendments

F377S. 124K inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 13, 47(1)

[F378124LEnforcement of obligationsU.K.

(1)Sections 94 to 96 apply in relation to a contravention of an initial obligation or a technical obligation, or a contravention of an obligation under section 124G(6), as they apply in relation to a contravention of a condition set out under section 45.

(2)The amount of the penalty imposed under section 96 as applied by this section is to be such amount not exceeding £250,000 as OFCOM determine to be—

(a)appropriate; and

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

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

(a)any representations made to them by the internet service provider or copyright owner on whom the penalty is imposed;

(b)any steps taken by the provider or owner towards complying with the obligations contraventions of which have been notified to the provider or owner under section 94 (as applied); and

(c)any steps taken by the provider or owner for remedying the consequences of those contraventions.

(4)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 (2).

(5)No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

F378S. 124L inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 14, 47(1)

[F379124MSharing of costsU.K.

(1)The Secretary of State may by order specify provision that must be included in an initial obligations code or a technical obligations code about payment of contributions towards costs incurred under the copyright infringement provisions.

(2)Any provision specified under subsection (1) must relate to payment of contributions by one or more of the following only—

(a)copyright owners;

(b)internet service providers;

(c)in relation to a subscriber appeal or a further appeal by a subscriber to the First-tier Tribunal, the subscriber.

(3)Provision specified under subsection (1) may relate to, in particular—

(a)payment by a copyright owner of a contribution towards the costs that an internet service provider incurs;

(b)payment by a copyright owner or internet service provider of a contribution towards the costs that OFCOM incur.

(4)Provision specified under subsection (1) may include, in particular—

(a)provision about costs incurred before the provision is included in an initial obligations code or a technical obligations code;

(b)provision for payment in advance of expected costs (and for reimbursement of overpayments where the costs incurred are less than expected);

(c)provision about how costs, expected costs or contributions must be calculated;

(d)other provision about when and how contributions must be paid.

(5)No order is to be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

F379S. 124M inserted (8.4.2010) by virtue of Digital Economy Act 2010 (c. 24), ss. 15, 47(2)(a)

[F380124NInterpretationU.K.

In sections 124A to 124M and this section—

  • “apparent infringement”, in relation to a copyright infringement report, means the infringement of copyright that the report states appears to have taken place;

  • “copyright infringement list” has the meaning given in section 124B(2);

  • “copyright infringement provisions” means sections 124A to 124M and this section;

  • “copyright infringement report” has the meaning given in section 124A(3);

  • “copyright owner” means—

    (a)

    a copyright owner within the meaning of Part 1 of the Copyright, Designs and Patents Act 1988 (see section 173 of that Act); or

    (b)

    someone authorised by that person to act on the person's behalf;

  • “copyright work” has the same meaning as in Part 1 of the Copyright, Designs and Patents Act 1988 (see section 1(2) of that Act);

  • “initial obligations” has the meaning given in section 124C(1);

  • “initial obligations code” has the meaning given in section 124A(2);

  • “internet access service” means an electronic communications service that—

    (a)

    is provided to a subscriber;

    (b)

    consists entirely or mainly of the provision of access to the internet; and

    (c)

    includes the allocation of an IP address or IP addresses to the subscriber to enable that access;

  • “internet service provider” means a person who provides an internet access service;

  • “IP address” means an internet protocol address;

  • “subscriber”, in relation to an internet access service, means a person who—

    (a)

    receives the service under an agreement between the person and the provider of the service; and

    (b)

    does not receive it as a communications provider;

  • “subscriber appeal” means—

    (a)

    in relation to an initial obligations code, an appeal by a subscriber on grounds specified in the code in relation to—

    (i)

    the making of a copyright infringement report;

    (ii)

    notification under section 124A(4);

    (iii)

    the inclusion or proposed inclusion of an entry in a copyright infringement list; or

    (iv)

    any other act or omission in relation to an initial obligation or an initial obligations code;

    (b)

    in relation to a technical obligations code, an appeal by a subscriber on grounds specified in the code in relation to—

    (i)

    the proposed taking of a technical measure; or

    (ii)

    any other act or omission in relation to a technical obligation or a technical obligations code;

  • “technical measure” has the meaning given in section 124G(3);

  • “technical obligation” has the meaning given in section 124G(2);

  • “technical obligations code” means a code in force under section 124I.]

Textual Amendments

[F381Powers in relation to internet domain registriesU.K.

Textual Amendments

F381S. 124O and cross-heading inserted (17.7.2023 for specified purposes, 6.4.2024 in so far as not already in force) by Digital Economy Act 2010 (c. 24), ss. 19, 47(3)(a); S.I. 2023/792, arts. 2, 3(a)

124ONotification of failure in relation to internet domain registryU.K.

(1)This section applies where the Secretary of State—

(a)is satisfied that a serious relevant failure in relation to a qualifying internet domain registry is taking place or has taken place, and

(b)wishes to exercise the powers under section 124P or 124R.

(2)The Secretary of State must notify the internet domain registry, specifying the failure and a period during which the registry has the opportunity to make representations to the Secretary of State.

(3)There is a relevant failure in relation to a qualifying internet domain registry if—

(a)the registry, or any of its registrars or end-users, engages in prescribed practices that are unfair or involve the misuse of internet domain names, or

(b)the arrangements made by the registry for dealing with complaints in connection with internet domain names do not comply with prescribed requirements.

(4)A relevant failure is serious, for the purposes of this section, if it has adversely affected or is likely adversely to affect—

(a)the reputation or availability of electronic communications networks or electronic communications services provided in the United Kingdom or a part of the United Kingdom, or

(b)the interests of consumers or members of the public in the United Kingdom or a part of the United Kingdom.

(5)In subsection (3) “prescribed” means prescribed by regulations made by the Secretary of State.

(6)Before making regulations under subsection (3) the Secretary of State must consult such persons as the Secretary of State considers appropriate.

(7)In this section and sections 124P to 124R—

  • “end-user”, in relation to a qualifying internet domain registry, means a person who has been or wants to be allocated an internet domain name that is or would be included in the register maintained by the registry;

  • “qualifying internet domain registry” means a relevant body that—

    (a)

    maintains a relevant register of internet domain names, and

    (b)

    operates a computer program or server that forms part of the system that enables the names included in the register to be used to access internet protocol addresses or other information by means of the internet;

  • “registrar”, in relation to a qualifying internet domain registry, means a person authorised by the registry to act on behalf of end-users in connection with the registration of internet domain names;

  • “relevant body” means a company formed and registered under the Companies Act 2006 or a limited liability partnership;

  • “relevant register of internet domain names” means a register of—

    (a)

    the names of second level internet domains that form part of the same UK-related top level internet domain, or

    (b)

    the names of third level internet domains that form part of the same UK-related second level internet domain;

  • “second level internet domain” means an internet domain indicated by the last two elements of an internet domain name;

  • “third level internet domain” means an internet domain indicated by the last three elements of an internet domain name;

  • “top level internet domain” means an internet domain indicated by the last element of an internet domain name.

(8)An internet domain is “UK-related” if, in the opinion of the Secretary of State, the last element of its name is likely to cause users of the internet, or a class of such users, to believe that the domain and its sub-domains are connected with the United Kingdom or a part of the United Kingdom.]

[F382124PAppointment of manager of internet domain registryU.K.

(1)This section applies where—

(a)the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure,

(b)the period allowed for making representations has expired, and

(c)the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure.

(2)The Secretary of State may by order appoint a manager in respect of the property and affairs of the internet domain registry for the purpose of securing that the registry takes the steps described in subsection (1)(c).

(3)The person appointed may be anyone whom the Secretary of State thinks appropriate.

(4)The appointment of the manager does not affect—

(a)a right of a person to appoint a receiver of the registry's property, or

(b)the rights of a receiver appointed by a person other than the Secretary of State.

(5)The Secretary of State must—

(a)keep the order under review, and

(b)if appropriate, discharge all or part of the order.

(6)The Secretary of State must discharge the order on the appointment of a person to act as administrative receiver, administrator, provisional liquidator or liquidator of the registry.

(7)The Secretary of State must discharge the order before the end of the period of 2 years beginning with the day on which it was made (but this does not prevent the Secretary of State from making a further order in the same or similar terms).

(8)When discharging an order under this section, the Secretary of State may make savings and transitional provision.

(9)The Secretary of State must send a copy of an order made under this section to the registry as soon as practicable after it is made.

(10)In subsection (4), “receiver” includes a manager (other than a manager appointed by the registry) and a person who is appointed as both receiver and manager.

(11)In subsection (6)—

  • “administrative receiver” means an administrative receiver within the meaning of section 251 of the Insolvency Act 1986 or Article 5(1) of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19));

  • “administrator” means a person appointed to manage the affairs, business and property of the registry under Schedule B1 to that Act or Schedule B1 to that Order.

Textual Amendments

124QFunctions of manager etcU.K.

(1)An order under section 124P may make provision about the functions to be exercised by, and the powers of, the manager.

(2)The order may, in particular—

(a)provide for the manager to have such of the functions of the registry's directors as are specified in the order (including functions exercisable only by a particular director or class of directors), and

(b)provide for one or more of the registry's directors to be prevented from exercising any of those functions.

(3)The order may make provision about the remuneration of the manager, including in particular—

(a)provision for the amount of the remuneration to be determined by the Secretary of State, and

(b)provision for the remuneration to be payable from the property of the registry.

(4)In carrying out the functions conferred by the order, the manager acts as the registry's agent.

(5)The Secretary of State may apply to the court for directions in relation to any matter arising in connection with the functions or powers of the manager (and the costs of the application are to be paid by the registry).

(6)On an application under subsection (5) the court may give such directions or make such orders as it thinks fit.

(7)In this section “the court” means—

(a)in England and Wales, the High Court or [F383the county court],

(b)in Scotland, the Court of Session or the sheriff, and

(c)in Northern Ireland, the High Court.

(8)Where the registry is a limited liability partnership, this section applies as if references to a director of the registry were references to a member of the limited liability partnership.]

Textual Amendments

F383Words in s. 124Q(7)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), ss. 52, 61(3); S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

[F384124RApplication to court to alter constitution of internet domain registryU.K.

(1)This section applies where—

(a)the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure,

(b)the period allowed for making representations has expired, and

(c)the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure.

(2)The Secretary of State may apply to the court (as defined in section 124Q) for an order under this section.

(3)The court may make an order—

(a)making alterations of the registry's constitution, and

(b)requiring the registry not to make any alterations, or any specified alterations, of its constitution without the leave of the court.

(4)An order under this section may contain only such provision as the court considers appropriate for securing that the registry remedies the failure specified in the notification under section 124O.

(5)In this section—

  • “constitution” means, in the case of a company, the articles of association and, in the case of a limited liability partnership, the limited liability partnership agreement;

  • “limited liability partnership agreement” means the agreement or agreements, whether express or implied, between the members of a limited liability partnership, and between the partnership and the members of the partnership, determining—

    (a)

    the mutual rights and duties of the members, and

    (b)

    their rights and duties in relation to the partnership.]

Textual Amendments

[F385Billing limits for mobile phonesU.K.

Textual Amendments

F385Ss. 124S, 124T and cross-heading inserted (1.10.2018) by Digital Economy Act 2017 (c. 30), ss. 102, 118(6); S.I. 2017/765, reg. 4

124SMobile phone providers' duty to enable billing limits to be appliedU.K.

(1)The provider of a mobile phone service must not enter into a contract to provide the service unless the customer has been given an opportunity to specify a billing limit in the contract.

(2)In relation to a contract to provide a mobile phone service—

(a)a billing limit is a limit on the amount the customer may be charged for provision of the service in respect of each billing period, and

(b)a billing period is one of successive periods specified in the contract and together making up the period for which the contract remains in force.

(3)A contract to provide a mobile phone service must provide for the customer on reasonable notice at any time—

(a)to specify a billing limit if none is specified for the time being,

(b)to amend or remove a limit in respect of all billing periods or a specified billing period.

(4)In any billing period the provider must—

(a)so far as practicable, notify the customer in reasonable time if a limit is likely to be reached before the end of the period, and

(b)notify the customer as soon as practicable if a limit is reached before the end of the period.

(5)A limit may be exceeded in relation to a billing period only if the customer agrees after a notification under subsection (4)(a) or (b).

(6)If the provider continues to provide the service after a limit is reached, the customer's use of the service does not constitute agreement to the limit being exceeded.

(7)The provider must give the customer confirmation in writing of—

(a)the decision made by the customer in accordance with subsection (1),

(b)any decision of the customer under provision made in accordance with subsection (3), and

(c)any agreement by the customer in accordance with subsection (5).

(8)This section applies to agreeing to extend a contract as it applies to entering into a contract, and in that case the reference in subsection (2)(b) to the period for which the contract remains in force is a reference to the period of the extension.

(9)Nothing in this section affects a provider's duty to comply with requirements to enable calls to emergency services.

(10)In this section—

  • “customer” does not include a person who is a customer as a communications provider;

  • “mobile phone service” means an electronic communications service which is provided in the course of a business wholly or mainly so as to be available to members of the public for the purpose of communicating with others, or accessing data, by mobile phone.

124TEnforcement of duty to enable billing limits to be appliedU.K.

(1)Sections 96A to 96C apply in relation to a contravention of a requirement under section 124S as they apply in relation to a contravention of a condition set under section 45, with the following modifications.

(2)Section 96A(2)(f) and (g) (OFCOM directions) do not apply.

(3)Section 96A(5) to (7) (action under the Competition Act 1998) do not apply.

(4)The amount of a penalty imposed under sections 96A to 96C, as applied by this section, other than a penalty falling within section 96B(4), is to be such amount not exceeding £2 million as OFCOM determine to be—

(a)appropriate; and

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

[F386Rights of end-users in relation to contract terminationU.K.

Textual Amendments

124URights of end-users in relation to contract terminationU.K.

(1)Where an end-user has (whether under an enactment or at common law) the right to terminate a contract for a public electronic communications service before the end of the agreed contract period—

(a)no compensation is to be due by the end-user, except compensation for any retained terminal equipment;

(b)if the end-user chooses to retain terminal equipment to which the contract relates—

(i)the compensation payable for the equipment is not to exceed the amount determined under subsection (2); and

(ii)on payment of the compensation, the provider must lift any conditions restricting the use of the terminal equipment on an electronic communications network of another communications provider.

(2)The maximum amount of compensation is whichever is the lesser of the following—

(a)the remaining part of any fee for the service until the end of the agreed contract period; or

(b)a proportion of the value of the terminal equipment, as agreed at the time of the conclusion of the contract, corresponding to the proportion of the agreed contract period that remains unexpired.

(3)Where the public electronic communications service is a transmission service involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction, subsection (1) does not apply unless the end-user is a qualifying end-user, as defined by section 51(9).

(4)Where the contract referred to in subsection (1) is, or is included in, a bundled contract, subsection (1) applies to all the elements of the bundled contract, unless the end-user—

(a)falls within paragraph (b) or (c) of the definition of “qualifying end-user” in section 51(9); and

(b)has waived the rights conferred by this subsection.

124VFurther rights relating to bundled contractsU.K.

(1)Subsection (2) applies where—

(a)an individual, acting for purposes other than those of a business, has entered into a bundled contract;

(b)the individual has (whether under an enactment or at common law) the right to terminate any element of the bundled contract before the end of the agreed contract period because of a lack of conformity with the contract or a failure to supply.

(2)The individual has the right to terminate all elements of the bundled contract.

124WEnforcement of obligations of providers under sections 124U and 124VU.K.

(1)Sections 96A to 96C apply in relation to a contravention by the provider of a public electronic communications service of the requirements imposed on the provider by sections 124U and 124V as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition, but with the following modifications.

(2)Section 96A(2)(f) and (g) (OFCOM directions) do not apply.

(3)Section 96A(5) to (7) (action under the Competition Act 1998) do not apply.

(4)The amount of a penalty imposed under sections 96A to 96C, as applied by this section, other than a penalty falling within section 96B(4), is to be such amount not exceeding £2 million as OFCOM determine to be—

(a)appropriate; and

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

Offences relating to networks and servicesU.K.

125Dishonestly obtaining electronic communications servicesU.K.

(1)A person who—

(a)dishonestly obtains an electronic communications service, and

(b)does so with intent to avoid payment of a charge applicable to the provision of that service,

is guilty of an offence.

(2)It is not an offence under this section to obtain a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly obtaining a broadcasting F387... service provided from a place in the UK).

(3)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

Textual Amendments

Commencement Information

I178S. 125 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I179S. 125 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

126Possession or supply of apparatus etc. for contravening s. 125U.K.

(1)A person is guilty of an offence if, with an intention falling within subsection (3), he has in his possession or under his control anything that may be used—

(a)for obtaining an electronic communications service; or

(b)in connection with obtaining such a service.

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

(a)he supplies or offers to supply anything which may be used as mentioned in subsection (1); and

(b)he knows or believes that the intentions in relation to that thing of the person to whom it is supplied or offered fall within subsection (3).

(3)A person’s intentions fall within this subsection if he intends—

(a)to use the thing to obtain an electronic communications service dishonestly;

(b)to use the thing for a purpose connected with the dishonest obtaining of such a service;

(c)dishonestly to allow the thing to be used to obtain such a service; or

(d)to allow the thing to be used for a purpose connected with the dishonest obtaining of such a service.

(4)An intention does not fall within subsection (3) if it relates exclusively to the obtaining of a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48).

(5)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; and

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(6)In this section, references, in the case of a thing used for recording data, to the use of that thing include references to the use of data recorded by it.

Commencement Information

I180S. 126 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I181S. 126 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

127Improper use of public electronic communications networkU.K.

(1)A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

[F388(a)sends by means of a public electronic communications network, a message that he knows to be false,]

[F388(b)causes such a message to be sent; or]

(c)persistently makes use of a public electronic communications network.

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

[F389(5)An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made—

(a)before the end of the period of 3 years beginning with the day on which the offence was committed, and

(b)before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.

(6)Summary proceedings for an offence under this section may be commenced in Scotland—

(a)before the end of the period of 3 years beginning with the day on which the offence was committed, and

(b)before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,

and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.

(7)A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.]

Textual Amendments

F388S. 127(2)(a)(b) repealed (E.W.N.I.) (31.1.2024) by Online Safety Act 2023 (c. 50), ss. 189(1), 240(1); S.I. 2024/31, reg. 2

Commencement Information

I182S. 127 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I183S. 127 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Persistent misuse of network or serviceU.K.

128Notification of misuse of networks and servicesU.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications services, 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 use that OFCOM consider constitutes persistent misuse; and

(c)specifies the period during which the person notified has an opportunity of making representations about the matters notified.

(3)That period must not be less than the following—

(a)in an urgent case, seven days; and

(b)in any other case, one month.

(4)A case is an urgent case for the purposes of subsection (3) if OFCOM consider—

(a)that the misuse in question is continuing; and

(b)that the harm it causes makes it necessary for it to be stopped as soon as possible.

(5)For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—

(a)the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or

(b)he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

(6)For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—

(a)a pattern of behaviour or practice; or

(b)recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

(7)For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—

(a)that the misuse was in relation to a network on some occasions and in relation to a service on others;

(b)that different networks or services were involved on different occasions; and

(c)that the persons who were or were likely to suffer annoyance inconvenience or anxiety were different on different occasions.

(8)If he considers that appropriate alternative means of dealing with it exists, the Secretary of State may by order provide that a use of a description specified in the order is not to be treated for the purposes of this Chapter as a misuse of an electronic communications network or electronic communications service.

Modifications etc. (not altering text)

Commencement Information

I184S. 128 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I185S. 128 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

129Enforcement notifications for stopping persistent misuseU.K.

(1)This section applies where—

(a)a person (“the notified misuser”) has been given a notification under section 128;

(b)OFCOM have allowed the notified misuser 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 give the notified misuser an enforcement notification if they are satisfied—

(a)that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and

(b)that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—

(i)securing that his misuse is brought to an end and is not repeated; and

(ii)remedying the consequences of the notified misuse.

(3)An enforcement notification is a notification which imposes a requirement on the notified misuser to take all such steps for—

(a)securing that his misuse is brought to an end and is not repeated, and

(b)remedying the consequences of the notified misuse,

as may be specified in the notification.

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

(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.

(7)References in this section to remedying the consequences of misuse include references to paying an amount to a person—

(a)by way of compensation for loss or damage suffered by that person; or

(b)in respect of annoyance, inconvenience or anxiety to which he has been put.

Modifications etc. (not altering text)

Commencement Information

I186S. 129 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I187S. 129 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

130Penalties for persistent misuseU.K.

(1)This section applies (in addition to section 129) where—

(a)a person (“the notified misuser”) has been given a notification under section 128;

(b)OFCOM have allowed the notified misuser 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 misuser if he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service.

(3)OFCOM may also impose a penalty on the notified misuser if he has contravened a requirement of an enforcement notification given in respect of the notified misuse.

(4)The amount of a penalty imposed is to be such amount not exceeding [F390£2,000,000] as OFCOM determine to be—

(a)appropriate; and

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

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

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

(b)any steps taken by him for securing that his misuse is brought to an end and is not repeated; and

(c)any steps taken by him for remedying the consequences of the notified misuse.

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

(a)notify the person penalised; and

(b)in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(7)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.

(8)It is to be possible for a person to be both liable for an offence under sections 125 to 127 and to have a penalty imposed on him under this section in respect of the same conduct.

(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 (4).

(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.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I188S. 130 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I189S. 130 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

131Statement of policy on persistent misuseU.K.

(1)It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to the exercise of their powers under sections 128 to 130.

(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, 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 128 to 130, to have regard to the statement for the time being in force under this section.

Modifications etc. (not altering text)

Commencement Information

I190S. 131 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I191S. 131 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Powers to deal with emergenciesU.K.

132Powers to require suspension or restriction of a provider’s entitlementU.K.

(1)If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a)to protect the public from any threat to public safety or public health, or

(b)in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2)OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3)A direction under this section is—

(a)a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications 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.

(4)A direction under subsection (3)—

(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.

(5)A direction under subsection (3)—

(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 conditions on the relevant provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(6)Those conditions may include a condition requiring the making of payments—

(a)by way of compensation for loss or damage suffered by the relevant provider’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.

(7)Where OFCOM give a direction under subsection (3), they shall, as soon as practicable after doing so, provide that person with an opportunity of—

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

(b)proposing steps for remedying the situation.

(8)If OFCOM consider it appropriate to do so (whether in consequence of any representations or proposals made to them under subsection (3) or otherwise), they may, without revoking it, at any time modify the terms of a direction under subsection (3) in such manner as they consider appropriate.

(9)If the Secretary of State considers it appropriate to do so, he may, by a direction to OFCOM, require them to revoke a direction under subsection (3).

(10)Where OFCOM modify or revoke a direction they have given under subsection (3), they may do so—

(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.

(11)It shall be the duty of OFCOM to comply with—

(a)a requirement under subsection (9) to revoke a direction; and

(b)a requirement contained in that direction as to how they should exercise their powers under subsection (10) in the case of the required revocation.

Commencement Information

I192S. 132 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I193S. 132 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

133Enforcement of directions under s. 132U.K.

(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 132; or

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

(2)A person guilty of an offence under subsection (1) shall be liable—

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

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

(3)The duty of a person to comply with a condition of a direction under section 132 shall be a duty owed to every person who may be affected by a contravention of the condition.

(4)Where a duty is owed by virtue of subsection (3) to a person—

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

(b)an act which—

(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.

(5)In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.

(6)Sections [F39196A] to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45 [F392, other than SMP apparatus conditions] .

Textual Amendments

Commencement Information

I194S. 133 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I195S. 133 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Restrictions in leases and licencesU.K.

134Restrictions in leases and licencesU.K.

(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—

(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,

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 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—

(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 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 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 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,

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 provisions as may be described in the order.

(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 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.

F393(8)In this section—

  • “alteration” has the same meaning as in the electronic communications code;

  • [F393“lease” includes—

    (a)

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

  • [F393“lease”—

    (a)

    in relation to England and Wales and Northern Ireland, includes—

    (i)

    any head lease, sub-lease or underlease,

    (ii)

    any tenancy (including a sub-tenancy), and

    (iii)

    any agreement to grant any such lease or tenancy;

    (b)

    in relation to Scotland, includes any sub-lease and any agreement to grant a sub-lease,

    and “lessor” and “lessee” are to be construed accordingly;]

  • “relevant electronic communications network” means—

    (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.

(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 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 403 applies to the powers of OFCOM to make orders under this section.

(13)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F393Words in s. 134(8) substituted (15.3.2021 for specified purposes) by Telecommunications Infrastructure (Leasehold Property) Act 2021 (c. 7), s. 3(3)(b)(4), Sch. para. 2

Commencement Information

I196S. 134 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I197S. 134 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F394Reports on infrastructure etcU.K.

Textual Amendments

F394Ss. 134A-134C and cross-headings inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 1(1), 47(1)

134A OFCOM reports on infrastructure etcU.K.

(1)OFCOM must prepare reports in accordance with subsections (2) and (3) and each report must deal with—

(a)the electronic communications networks matters listed in section 134B(1), and

(b)the electronic communications services matters listed in section 134B(2).

(2)The first report must—

(a)relate to the position on a day specified in the report which falls within the period of 12 months beginning with the day on which this section comes into force, and

(b)be sent to the Secretary of State by OFCOM not more than 2 months after the specified day.

(3)A further report must—

(a)be prepared for each relevant period, and

(b)be sent to the Secretary of State by OFCOM as soon as practicable after the end of the relevant period.

(4)“Relevant period” means—

(a)the period of 3 years beginning with the day specified in the first report, and

[F395(b)each subsequent period beginning with the end of the previous period and ending at such time not more than 3 years after the end of the previous period as OFCOM may determine.]

(5)Where there is a significant change in connection with a matter listed in section 134B(1) or (2) and OFCOM consider that the change should be brought to the attention of the Secretary of State, OFCOM must—

(a)prepare a report on the change, and

(b)send it to the Secretary of State as soon as practicable.

(6)For the purposes of subsection (5), a change is significant if OFCOM consider that it has, or is likely to have, a significant adverse impact on—

(a)persons carrying on business in the United Kingdom or a part of the United Kingdom, or

(b)the general public in the United Kingdom or a part of the United Kingdom.

(7)OFCOM must publish every report under this section—

(a)as soon as practicable after they send it to the Secretary of State, and

(b)in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(8)OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.

Textual Amendments

[F396134AAAdditional OFCOM reports on infrastructure etcU.K.

(1)OFCOM may prepare reports dealing with—

(a)any of the electronic communications network matters listed in section 134B(1);

(b)any of the electronic communications services matters listed in section 134B(2).

(2)OFCOM may publish a report under this section in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(3)Before publishing a report under this section OFCOM must consider—

(a)whether any of the information to be contained in it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000, and

(b)if so, whether that information should be excluded from the report.

(4)This section does not affect OFCOM's duty to prepare reports under section 134A.

Textual Amendments

F396Ss. 134AA, 134AB inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(2), 118(2)

134ABPublication of information required for purpose of preparing reportsU.K.

(1)OFCOM may publish—

(a)any relevant section 135 information, and

(b)any information derived from relevant section 135 information.

(2)Before publishing information under this section OFCOM must consider—

(a)whether any of the information that they propose to publish is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000, and

(b)if so, whether that information should be published.

(3)In this section “relevant section 135 information” means information required by OFCOM under section 135 for the purpose of preparing a report under section 134A or 134AA.]

Textual Amendments

F396Ss. 134AA, 134AB inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(2), 118(2)

[F397134ACUse of reportsU.K.

(1)The Secretary of State must have regard to reports received from OFCOM under section 134A, or published by OFCOM under section 134AA, when exercising functions for any of the relevant purposes.

(2)The relevant purposes are—

(a)the allocation of public funds for the bringing into operation of electronic communications networks;

(b)the design of national broadband plans;

(c)verifying the availability of services to which universal service conditions apply.

(3)Any other public authority must have regard to reports published by OFCOM under section 134AA when exercising functions for either of the purposes specified in subsection (2)(a) and (b).]

Textual Amendments

134BNetworks and services mattersU.K.

(1)For the purposes of [F398sections 134A and 134AA], the electronic communications networks matters are—

(a)the different types of electronic communications network provided in the United Kingdom (“UK networks”),

(b)the geographic coverage of the different UK networks,

(c)the proportion of the population covered by the different UK networks,

(d)the extent to which UK networks share infrastructure,

(e)the capacity of the different UK networks,

(f)the extent to which the providers of the different UK networks allow other communications providers to use their networks to provide services,

[F399(fa)  the quality of service available on different UK networks, by reference to such parameters as OFCOM consider appropriate,]

(g)the amount of time for which the different UK networks are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability,

(h)the preparations made by providers of UK networks for responding to an emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency,F400...

[F401(ha)the extent to which providers of public UK networks are complying with the duties imposed on them by or under sections 105A to 105D,]

(i)the standard of the different UK networks in comparison with electronic communications networks provided in a range of other countries, having regard, in particular, to their coverage and capacity, [F402and]

[F403(j)any proposals that providers of UK networks may at any time have to do any of the following within the next 3 years—

(i)to bring into operation a new very high capacity network, other than a mobile network, or

(ii)to extend or upgrade any part of a fixed line network or its equivalent, such as a fixed wireless access network, so as to provide a download speed of at least 100 megabits per second.]

(2)For the purposes of [F398sections 134A and 134AA], the electronic communications services matters are—

(a)the use of the electromagnetic spectrum for wireless telegraphy in the United Kingdom,

(b)the different types of electronic communications service provided in the United Kingdom (“UK services”),

(c)the geographic coverage of the different UK services,

(d)the proportion of the population covered by the different UK services,

(e)the amount of time for which the different UK services are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability,

(f)the preparations made by providers of UK services for responding to an emergency, including preparations for restoring normal operation of UK services disrupted by the emergency,

[F404(fa)the extent to which providers of public UK services are complying with the duties imposed on them by or under sections 105A to 105D,] and

(g)the standard of the different UK services in comparison with electronic communications services provided in a range of other countries.

(3)The preparations referred to in subsections (1)(h) and (2)(f) include—

(a)the steps taken to assess the risks of different types of emergency occurring,

(b)the steps taken to reduce or remove those risks, and

(c)the testing of proposed responses to different types of emergency.

(4)In a report under section 134A [F405or 134AA], OFCOM are required to include only information about, and analysis of, such networks, services and providers as they consider appropriate.

(5)In this section “emergency” means an event or situation that seriously disrupts a UK network or UK service.

Textual Amendments

F398Words in s. 134B(1)(2) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(3)(a), 118(2)

F405Words in s. 134B(4) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(3)(b), 118(2)

Reports on internet domain namesU.K.

134C OFCOM reports on internet domain namesU.K.

(1)OFCOM must, if requested to do so by the Secretary of State—

(a)prepare a report on matters specified by the Secretary of State relating to internet domain names, and

(b)send the report to the Secretary of State as soon as practicable.

(2)The specified matters may, in particular, include matters relating to—

(a)the allocation and registration of internet domain names, and

(b)the misuse of internet domain names.

(3)OFCOM must publish every report under this section—

(a)as soon as practicable after they send it to the Secretary of State, and

(b)in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(4)OFCOM may exclude information from a report when it is published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.]

[F406Comparative overviewsU.K.

Textual Amendments

F406S. 134D and cross-heading inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 83(2), 118(2)

134DComparative overviews of quality and pricesU.K.

(1)OFCOM may, in the interest of the end-users of public electronic communications services, carry out comparative overviews of the quality and prices of such services.

(2)OFCOM may publish a comparative overview carried out under this section in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.]

Information provisionsU.K.

[F408135Information required for purposes of [F407certain OFCOM] functionsU.K.

(1)[F408OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under—

(a)section 14(1),

(b)section 26, so far as relating to matters in relation to which they have functions under this Chapter, or

(c)this Chapter.]

(2)The persons falling within this subsection are—

(a)a communications provider;

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

(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;

(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.

[F409(g)a person who provides or has provided a number-independent interpersonal communications service and appears to OFCOM to have information relevant to their functions under section 14(1).]

(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 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 38;

(c)ascertaining whether a provision of a condition set under section 45 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 falling within section 51(1)(d);

(e)making a designation in accordance with regulations made under section 66;

(f)carrying out a review under section 66 [F410, 70 or 72A];

[F411(fa)ascertaining whether a commitment which is made binding by a commitments decision continues to be effective for the purpose for which it was made binding under section 93A(8);]

(g)identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter;

F412(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

[F413(iza)carrying out an assessment under section 105N;]

[F414(izb)preparing a report under section 105Z;]

[F415(izc)assessing the risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service;]

[F416(izd)preparing a report under section 105Z12;]

[F417(ia)preparing a report under section 124F;

(ib)carrying out an assessment, taking steps or providing a report under section 124G;]

[F418(ic)preparing a report under section 134A;

[F419(ica)preparing a report under section 134AA;]

(id)preparing a report under section 134C;]

[F420(ie)F421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F422(if). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ig)identifying electronic communications apparatus that is suitable for shared use;]

(j)statistical purposes connected with the carrying out of any of OFCOM’s functions under this Chapter.

[F423(3A)The descriptions of information that a person may be required to provide under subsection (1) include, in particular—

[F424(za)information concerning future developments of a public electronic communications network or public electronic communications service that could have an impact on the security of the network or service,]

(a)information concerning future developments of an electronic communications network or electronic communications service that could have an impact on the wholesale services made available by the person to competitors, and

(b)if a market power determination made in relation to a wholesale market is in force in the person’s case, accounting data relating to any retail market associated with the wholesale market.]

[F425(3B)In subsection (2)(g), “number-independent interpersonal communications service” means an interpersonal communications service, as defined by section 32A(2), other than—

(a)a number-based interpersonal communications service; or

(b)a service where the interpersonal and interactive communication is merely a minor ancillary feature that is intrinsically linked to another service.]

[F426(3C)OFCOM may require a person falling within subsection (2)—

(a)to produce, generate or obtain security information for the purpose of providing it under subsection (1);

(b)to collect or retain security information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1);

(c)to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating security information to be provided under subsection (1).

(3D)In subsection (3C) “security information” means information OFCOM consider necessary for the purpose of carrying out their functions under sections 105L to 105Z.]

(4)A person [F427must comply with a requirement imposed under this section] 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 137.]

Textual Amendments

F407Words in s. 135 heading substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 85(3), 118(2)

F408S. 135(1) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 85(2), 118(2)

F410Words in s. 135(3)(f) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(8), 118(2)

F417S. 135(3)(ia)(ib) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 16(2), 47(1)

F418S. 135(3)(ic)(id) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 1(2), 47(1)

F419S. 135(3)(ica) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(4), 118(2)

Modifications etc. (not altering text)

Commencement Information

I198S. 135 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I199S. 135 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

136Information required for related purposesU.K.

(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 the purpose [F428 of carrying out comparative overviews under section 134D ] .

F429(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 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 137.

Textual Amendments

F428Words in s. 136(1) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 83(3)(a), 118(2)

F429S. 136(2) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 83(3)(b), 118(2)

Commencement Information

I200S. 136 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I201S. 136 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

137Restrictions on imposing information requirementsU.K.

(1)This section limits the purposes for which, and manner in which, [F430requirements may be imposed] under sections 135 and 136.

(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 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 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; F431...

(d)the condition in question is one falling within section 51(1)(d) [F432; or

(e)the condition in question is one relating to the effective and efficient use of telephone numbers.]

F433(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)OFCOM are not to require the provision of information under section 135 or 136 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 OFCOM’s functions.

(4)The reasons for requiring information for statistical purposes under section 135 or 136 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 (6), a demand for information required under section 135 or 136 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 38, the demand may—

(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

(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.

[F434(7)OFCOM are not to impose a requirement on a person under section 135(3C) except by a notice served on the person that sets out the requirement and OFCOM’s reasons for imposing it.]

Textual Amendments

Commencement Information

I202S. 137 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I203S. 137 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F435137AInformation required from communications providersU.K.

(1)OFCOM may require a communications provider—

(a)to publish any information held by the provider, or

(b)to provide any such information to OFCOM for publication by OFCOM.

(2)The information that OFCOM may require the communications provider to publish or provide under subsection (1) includes information that OFCOM require the provider to produce, generate or obtain for that purpose.

(3)For that purpose OFCOM may, in particular, require the communications provider—

(a)to collect or retain any information that the provider would not otherwise collect or retain,

(b)to process, collate or analyse any information held by the provider, or

(c)to answer any questions.

(4)The power conferred by this section may be exercised only—

(a)in connection with OFCOM's functions—

(i)under Part 1, so far as relating to electronic communications, or

(ii)under this Chapter, and

(b)in such a way as is proportionate to the use to which the information is to be put in connection with those functions.

(5)The power conferred by this section is to be exercised by a demand, contained in a notice served on the communications provider, that—

(a)describes the information required to be published or provided, and

(b)sets out OFCOM's reasons for requiring it to be published or provided.

(6)Before serving the notice on the communications provider, OFCOM must—

(a)serve a draft of the notice on the provider and inform the provider of the period for making representations, and

(b)consider any representations made by the provider within that period which—

(i)identify restrictions on the disclosure or publication of information that would or might prevent the provider from complying with the notice, or

(ii)otherwise relate to the practicability of complying with it.

(7)The communications provider must publish or provide the information required by the notice in such manner and form, in accordance with such other requirements, and within such reasonable period, as may be specified by OFCOM.

(8)Where OFCOM publish anything provided to them pursuant to subsection (1)(b) they must do so in such manner and form as they consider appropriate.

Textual Amendments

F435Ss. 137A, 137B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(2), 118(2)

137BSection 137A: confidential mattersU.K.

(1)In exercising functions under section 137A, OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (2) and (3).

(2)A matter is confidential under this subsection if—

(a)it relates specifically to the affairs of a particular body, and

(b)publication of that matter would or might, in OFCOM's opinion, seriously and prejudicially affect the interests of that body.

(3)A matter is confidential under this subsection if—

(a)it relates to the private affairs of an individual, and

(b)publication of that matter would or might, in OFCOM's opinion, seriously and prejudicially affect the interests of that individual.]

Textual Amendments

F435Ss. 137A, 137B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(2), 118(2)

138Notification of contravention of information requirementsU.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section [F436135, 136 or 137A], 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 determination has been made; F437...

[F438(c)specifies the period during which the person notified has an opportunity to make representations;

[F439(d)specifies what the person must do in order to comply with the requirement;]

(e)specifies any penalty which OFCOM are minded to impose in accordance with section 139; and

(f)where the contravention is serious, specifies any direction which OFCOM are minded to give under section 140.]

F440(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F440(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F440(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F440(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F440(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

(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;

(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.

[F441(9A)OFCOM may not give a person a notification under this section in respect of a contravention of a requirement imposed under section 135(3)(ig) if the information required was previously provided by the person to OFCOM within the period of 6 months ending with the day on which the requirement was imposed.]

F442(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F436Words in s. 138(1) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(3)(a), 118(2)

F439S. 138(2)(d) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(3)(b), 118(2)

Modifications etc. (not altering text)

C19Ss. 138-139A applied (with modifications) (31.7.2016) by The Communications (Access to Infrastructure) Regulations 2016 (S.I. 2016/700), regs. 1, 17(6), (7)

Commencement Information

I204S. 138 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I205S. 138 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

139Penalties for contravention of information requirementsU.K.

[F443(1)This section applies where a person is given a notification under section 138 which specifies a proposed penalty.]

(2)OFCOM may [F444specify a penalty] if—

F445(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F445(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention.

(3)Where a notification under section 138 relates to more than one contravention, a separate penalty may be [F446specified] in respect of each contravention.

(4)Where such a notification relates to a continuing contravention, no more than one penalty may be [F447specified] in respect of the period of contravention specified in the notification.

[F448(4A)But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a)the giving of a confirmation decision under section 139A(4)(c) which requires immediate action; or

(b)the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(4B)The amount of a penalty under subsection (4A) is to be such amount not exceeding £500 per day as OFCOM determine to be—

(a)appropriate; and

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

(5)The amount of [F449any other penalty notified] under this section is to be such amount not exceeding [F450£2,000,000] as OFCOM determine to be both—

(a)appropriate; and

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

F451(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F451(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F451(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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).

(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.

Textual Amendments

Modifications etc. (not altering text)

C19Ss. 138-139A applied (with modifications) (31.7.2016) by The Communications (Access to Infrastructure) Regulations 2016 (S.I. 2016/700), regs. 1, 17(6), (7)

Commencement Information

I206S. 139 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I207S. 139 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F452139ZAHigher penalties for certain contraventionsU.K.

(1)This section applies where—

(a)a person is given a notification under section 138 which specifies a proposed penalty; and

(b)the condition in subsection (2) or (3) is met.

(2)The condition in this subsection is that—

(a)the proposed penalty is in respect of a contravention of a requirement to provide information under section 135; and

(b)the demand for the information contains a statement that OFCOM consider the information to be necessary for the purpose of—

(i)carrying out any of their functions under sections 105L to 105Z;

(ii)preparing a report under section 105Z12.

(3)The condition in this subsection is that the proposed penalty is in respect of a contravention of a requirement imposed under subsection (3C) of section 135.

(4)Section 139 applies in relation to the proposed penalty as if—

(a)in subsection (4B), the maximum penalty specified were £50,000 per day;

(b)in subsection (5), the maximum penalty specified were £10 million.

(5)The Secretary of State may by regulations amend this section so as to make different provision as to the maximum penalty applying under section 139(4B) or (5).

(6)No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

F452S. 139ZA inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 24, 28(1)(d)

[F453139A.Enforcement of notification under section 138U.K.

(1)This section applies where—

(a)a person has been given a notification under section 138;

(b)OFCOM have allowed the person an opportunity to make representations about the matters notified; and

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

(2)OFCOM may—

(a)give the person a decision (a “confirmation decision”) confirming the imposition of requirements on the person, or the giving of a direction to the person, or both, in accordance with the notification under section 138; or

(b)inform the person that they are satisfied with the person’s representations and that no further action will be taken.

(3)OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a requirement notified under section 138.

(4)A confirmation decision—

(a)must be given to the person without delay;

(b)must include reasons for the decision;

(c)may require immediate action by the person to comply with a requirement notified under section 138(2)(d), or may specify a period within which the person must comply with the requirement; and

(d)may require the person to pay—

(i)the penalty specified in the notification under section 138, or

(ii)such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention,

and may specify the period within which the penalty is to be paid.

(5)It is the duty of the person to comply with any requirement imposed by a confirmation decision.

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

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c)for any other appropriate remedy or relief.

(7)A penalty imposed by a confirmation decision—

(a)must be paid to OFCOM; and

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

Textual Amendments

Modifications etc. (not altering text)

C19Ss. 138-139A applied (with modifications) (31.7.2016) by The Communications (Access to Infrastructure) Regulations 2016 (S.I. 2016/700), regs. 1, 17(6), (7)

139B.Power to deal with urgent casesU.K.

(1)This section applies where OFCOM determine—

(a)that they are entitled to give a notification under section 138 with respect to a contravention by a person (“P”) of a requirement imposed under section 135 or 136;

(b)that there are reasonable grounds for suspecting that the case is an urgent case; and

(c)that the urgency of the case makes it appropriate for OFCOM to take action under this section.

(2)A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

(a)a serious threat to the safety of the public, to public health or to national security;

(b)serious economic or operational problems for persons (other than P) who are communications providers or persons who make associated facilities available; or

(c)serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

(3)OFCOM may give P a direction—

(a)that the entitlement of P to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

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

(4)Subsections (3) to (6) of section 140 apply in relation to a direction under subsection (3) as they apply in relation to a direction under section 140.

Textual Amendments

139C.Confirmation of direction under section 139BU.K.

(1)As soon as reasonably practicable after giving a direction under section 139B(3), OFCOM must give the person to whom it is given—

(a)an opportunity to make representations to them about the grounds on which it was given and its effect; and

(b)an opportunity to propose steps to remedy the situation.

(2)As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

(3)The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

(a)require additional time to consider representations received; or

(b)decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (2).

(4)If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(5)If not, they must exercise their power to revoke it.

(6)As soon as reasonably practicable after deciding whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.]

Textual Amendments

140Suspending service provision for information contraventionsU.K.

(1)OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

(a)that he is or has been in [F454serious or repeated] contravention of requirements imposed under sections [F455135, 136 and 137A, or any] or either of them;

(b)the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM’s functions in relation to SMP apparatus conditions;

(c)[F456in the case of a repeated contravention,] that an attempt, by the imposition of penalties [F457or the giving of notifications under section 138 and confirmation decisions under section 139A, or both,] or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

[F458(d)that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.]

(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 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—

(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—

(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 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

(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 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

(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 [F459135, 136 and 137A, or any] of them, to the extent that—

[F460(a)in the case of a previous notification of a contravention given to that person under section 138, OFCOM have given a confirmation decision to that person under section 139A(2) in respect of the contravention; and

(b)in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of numbering conditions;]

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.

Textual Amendments

F455Words in s. 140(1)(a) substituted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 86(4), 118(2) (with s. 9(13))

F459Words in s. 140(7) substituted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 86(4), 118(2) (with s. 9(13))

Commencement Information

I208S. 140 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I209S. 140 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

141Suspending apparatus supply for information contraventionsU.K.

(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 135;

(b)that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, 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.

(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 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.

(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 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 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 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

(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 135 are repeated contraventions if—

(a)in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(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;

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.

Commencement Information

I210S. 141 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I211S. 141 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

142Procedure for directions under ss. 140 and 141U.K.

(1)Except in an urgent case, [F461or a case where a proposed direction has been notified to a person in accordance with section 138(2)(f)] OFCOM are not to give a direction under section 140 or 141 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 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.

[F462(2A)That period must be—

(a)in relation to a direction under section 140, such reasonable period as OFCOM may determine, and

(b)in relation to a direction under section 141, a period 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 140 or 141 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 its conditions; and

(b)proposing steps for remedying the situation.

[F463(3A)In relation to a direction under section 140 in an urgent case, as soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

(3B)The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

(a)require additional time to consider representations received; or

(b)decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).]

(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 direction under section 140 or 141, for the making and consideration of representations; and

(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 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

(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 140; and

  • “contravening supplier” has the same meaning as in section 141.

Textual Amendments

Commencement Information

I212S. 142 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I213S. 142 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

143Enforcement of directions under ss. 140 and 141U.K.

(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 140; 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 141; 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;

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

[F464(4)Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 139B or 140 as they apply in relation to a contravention of conditions set under section 45, other than SMP apparatus conditions.

(5)Sections 94 to 96 and 97 to 99 apply in relation to a contravention of conditions imposed by a direction under section 141 as they apply in relation to a contravention of SMP apparatus conditions.]

Textual Amendments

Commencement Information

I214S. 143 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I215S. 143 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

144Offences in connection with information requirementsU.K.

(1)A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 [F465, or who contravenes a requirement imposed under section 137A,] 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.

(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

(b)that he has taken all reasonable steps to [F466comply with the requirement] after the end of that period.

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

(a)in pursuance of any requirement under section [F467135, 136 or 137A], he provides [F468or publishes] any information that is false in any material particular; and

(b)at the time he provides [F468or publishes] 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;

(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 135 or 136 only if—

(a)OFCOM have given the person a notification under section 138 in respect of that contravention;

[F469(b)a confirmation decision has been given under section 139A in respect of that requirement and the period allowed under that decision has expired without the requirement have been complied with; and]

(c)OFCOM have not imposed a financial penalty under section 139 in respect of that contravention.

[F470(6)Nothing in this section applies in relation to a contravention of a requirement imposed on a person by virtue of section 135(2)(g).]

Textual Amendments

F465Words in s. 144(1) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(a), 118(2)

F466Words in s. 144(2)(b) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(b), 118(2)

F467Words in s. 144(3) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(c)(i), 118(2)

F468Words in s. 144(3) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(c)(ii), 118(2)

F469S. 144(5)(b) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(d), 118(2)

Commencement Information

I216S. 144 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I217S. 144 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

145Statement of policy on information gatheringU.K.

(1)It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to—

(a)the exercise of their powers under sections [F471 135, 136 and 137A ] ; and

(b)the uses to which they are proposing to put information obtained under [F472 sections 135 and 136 ] .

(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, 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 135 to 144 to have regard to the statement for the time being in force under this section.

Textual Amendments

F471Words in s. 145(1)(a) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(6)(a), 118(2)

F472Words in s. 145(1)(b) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(6)(b), 118(2)

Commencement Information

I218S. 145 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I219S. 145 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

146Provision of information by OFCOMU.K.

(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 submitted by him under section 33;

(b)to notify the person whether a notification submitted by him for the purposes of that section satisfies the requirements of this Chapter;

(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 106 to be 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 are 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 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.

Commencement Information

I220S. 146 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I221S. 146 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F473146A.Rights of third parties to use information without chargeU.K.

(1)Any person has a right to use, free of charge, information published by a communications provider if the use is for the purpose specified in subsection (2).

(2)That purpose is to sell or make available an interactive guide or other technique for evaluating the cost of alternative usage patterns in relation to electronic communications services.]

Textual Amendments

Abolition of telecommunications licensing etc.U.K.

147Repeal of provisions of Telecommunications Act 1984U.K.

The following provisions of the Telecommunications Act 1984 (c. 12) shall cease to have effect—

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

(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).

Commencement Information

I222S. 147 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I223S. 147 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Local authority powers in relation to networks and servicesU.K.

148Powers of local authorities in connection with networksU.K.

(1)A local authority may borrow money for the purpose of providing a public electronic communications network or public electronic communications service.

(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.

(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).

Commencement Information

I224S. 148 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I225S. 148 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Grants for networks and services in Northern IrelandU.K.

149Grants by Department of Enterprise, Trade and InvestmentN.I.

(1)The Department of Enterprise, Trade and Investment may, in accordance with this section, make payments to persons engaged in, or in commercial activities connected with—

(a)the provision of electronic communications networks and electronic communications services in Northern Ireland; or

(b)improving the extent, quality and reliability of such networks or services.

(2)A payment shall not be made under this section unless in the opinion of the Department of Enterprise, Trade and Investment—

(a)the making of the payment is likely to achieve—

(i)one or more of the purposes set out in subsection (1); and

(ii)any other purposes prescribed by regulations made by that Department with the approval of the Department of Finance and Personnel; and

(b)the amount of the payment is reasonable having regard to all the circumstances.

(3)Payments under this section shall—

(a)be of such amounts, and

(b)be made subject to such conditions (including conditions as to repayment),

as the Department of Enterprise, Trade and Investment may determine.

(4)This section extends only to Northern Ireland.

Commencement Information

I226S. 149 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I227S. 149 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

150Grants by district councilsU.K.

(1)This section applies where a district council in Northern Ireland consider that it would be for the benefit of their area—

(a)for a public electronic communications network or electronic communications service to be provided by a particular person;

(b)for facilities to be made available by a particular person for the purposes of, or in connection with, the provision of such a network or service; or

(c)for such a network or service that is being provided by a particular person, or for any such facilities that are being so made available by a particular person, to continue to be provided or made available.

(2)The district council may—

(a)undertake to pay to that person, and

(b)pay him,

whatever sums they think appropriate for, or towards, compensating him for losses sustained in the provision of the network or service or in making the facilities available.

(3)For the purposes of this section it is immaterial—

(a)in the case of a network, whether any part of the network is situated in the council’s area; and

(b)in the case of a service or facility, whether any of the persons to whom the service or facility is provided or made available are in that area.

Commencement Information

I228S. 150 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I229S. 150 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Interpretation of Chapter 1U.K.

F474150A.Proposals of EU significanceU.K.

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Textual Amendments

151Interpretation of Chapter 1U.K.

(1)In this Chapter—

  • F475...

  • “access-related condition” means a condition set as an access-related condition under section 45;

  • “allocation” and “adoption”, in relation to telephone numbers, and cognate expressions, are to be construed in accordance with section 56;

  • “apparatus market”, in relation to a market power determination, is to be construed in accordance with section 46(9)(b);

  • [F476“bundled contract” has the meaning given by section 51(8);

  • “commitments decision” means a decision under section 93A(8);]

  • “designated universal service provider” means a person who is for the time being designated in accordance with regulations under section 66 as a person to whom universal service conditions are applicable;

  • [F477“designated vendor” means a person designated by a designation notice;

  • “designated vendor direction” has the meaning given by section 105Z1(1);]

  • [F478“designation notice” has the meaning given by section 105Z8(1);]

  • “electronic communications apparatus”—

    (a)

    in relation to SMP apparatus conditions and in section 141, means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals (within the meaning of section 32) that are transmitted by means of an electronic communications network; and

    (b)

    in all other contexts, has the same meaning as in the electronic communications code;

  • “the electronic communications code” has the meaning given by section 106(1);

  • “end-user”, in relation to a public electronic communications service, means—

    (a)

    a person who, otherwise than as a communications provider, is a customer of the provider of that service;

    (b)

    a person who makes use of the service otherwise than as a communications provider; or

    (c)

    a person who may be authorised, by a person falling within paragraph (a), so to make use of the service;

  • “the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services [F479, as amended by Directive 2009/140/EC of the European Parliament and of the Council] ;

  • “general condition” means a condition set as a general condition under section 45;

  • [F480“inspection notice” has the meaning given by section 105Z14;]

  • “interconnection” is to be construed in accordance with subsection (2);

  • “market power determination” means—

    (a)

    a determination, for the purposes of provisions of this Chapter, that a person has significant market power in an identified services market or an identified apparatus market, or

    (b)

    a confirmation for such purposes of a market power determination reviewed on a further analysis under section 84 or 85;

  • “misuse”, in relation to an electronic communications network or electronic communications service, is to be construed in accordance with section 128(5) and (8), and cognate expressions are to be construed accordingly;

  • [F481“monitoring direction” has the meaning given by section 105Z12;]

  • “network access” is to be construed in accordance with subsection (3);

  • [F482“not-for-profit body” means a body which, by virtue of its constitution or any enactment—

    (a)

    is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes; and

    (b)

    is prohibited from directly or indirectly distributing amongst its members any part of its assets (otherwise than for charitable or public purposes);

  • “number-based interpersonal communications service” has the meaning given by section 32A(1);]

  • “persistent” and “persistently”, in relation to misuse of an electronic communications network or electronic communications service, are to be construed in accordance with section 128(6) and (7);

  • “premium rate service” is to be construed in accordance with section 120(7);

  • “privileged supplier condition” means a condition set as a privileged supplier condition under section 45;

  • “provider”, in relation to a premium rate service, is to be construed in accordance with section 120(9) to (12), and cognate expressions are to be construed accordingly;

  • “public communications provider” means—

    (a)

    a provider of a public electronic communications network;

    (b)

    a provider of a public electronic communications service; or

    (c)

    a person who makes available facilities that are associated facilities by reference to a public electronic communications network or a public electronic communications service;

  • “public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public;

  • “public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;

  • “regulatory authorities” is to be construed in accordance with subsection (5);

  • “relevant international standards” means—

    (a)

    any standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive [F483or Article 39 of the EECC Directive];

    (b)

    the standards and specifications from time to time adopted by—

    (i)

    the European Committee for Standardisation,

    (ii)

    the European Committee for Electrotechnical Standardisation; or

    (iii)

    the European Telecommunications Standards Institute; and

    (c)

    the international standards and recommendations from time to time adopted by—

    (i)

    the International Telecommunication Union;

    (ii)

    the International Organisation for Standardisation; or

    (iii)

    the International Electrotechnical Committee;

  • [F484“security compromise”, in relation to a public electronic communications network or a public electronic communications service, has the meaning given by section 105A;]

  • “service interoperability” means interoperability between different electronic communications services;

  • “services market”, in relation to a market power determination or market identification, is to be construed in accordance with section 46(8)(a);

  • “significant market power” is to be construed in accordance with section 78;

  • “SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

  • [F485“social tariff condition” means a condition set as a social tariff condition under section 45;]

  • “telephone number” has the meaning given by section 56(5);

  • [F486“terminal equipment” means—

    (a)

    equipment directly or indirectly connected to the interface of a public electronic communications network to send, process or receive information, with the direct or indirect connection being made by a wire or optical fibre or electromagnetically; or

    (b)

    equipment which is capable of being used for the transmission or reception, or both, of radio communication signals by means of satellites or other space-based systems;]

  • F487...

  • “universal service condition” means a condition set as a universal service condition under section 45;

  • “the universal service order” means the order for the time being in force under section 65.

  • [F488“urgent enforcement direction” has the meaning given by section 105Z22.]

(2)In this Chapter references to interconnection are references to the linking (whether directly or indirectly by physical or logical means, or by a combination of physical and logical means) of one public electronic communications network to another for the purpose of enabling the persons using one of them to be able—

(a)to communicate with users of the other one; or

(b)to make use of services provided by means of the other one (whether by the provider of that network or by another person).

(3)In this Chapter references to network access are references to—

(a)interconnection of public electronic communications networks; or

(b)any services, facilities or arrangements which—

(i)are not comprised in interconnection; but

(ii)are services, facilities or arrangements by means of which [F489a person] is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of anything mentioned in subsection (4);

and references to providing network access include references to providing any such services, making available any such facilities or entering into any such arrangements.

(4)The things referred to in subsection (3)(b) are—

(a)any electronic communications network or electronic communications service provided by another communications provider;

(b)any apparatus comprised in such a network or used for the purposes of such a network or service;

[F490(ba)any electronic communications apparatus;]

(c)any facilities made available by another that are associated facilities by reference to any network or service (whether one provided by that provider or by another);

(d)any other services or facilities which are provided or made available by another person and are capable of being used for the provision of an electronic communications service.

[F491(4A)In subsections (3)(b)(ii) and (4)(d), the references to an electronic communications service include the conveyance by means of an electronic communications network of signals, including an information society service or content service so conveyed.

(4B)In subsection (4A)—

  • “content service” has the meaning given by section 32(7), and

  • “information society service” has the meaning given by [F492section 51(9)].]

F493(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)For the purposes of this Chapter, where there is a contravention of an obligation that requires a person to do anything within a particular period or before a particular time, that contravention shall be taken to continue after the end of that period, or after that time, until that thing is done.

(7)References in this Chapter to remedying the consequences of a contravention include references to paying an amount to a person—

(a)by way of compensation for loss or damage suffered by that person; or

(b)in respect of annoyance, inconvenience or anxiety to which he has been put.

(8)In determining for the purposes of provisions of this Chapter whether a contravention is a repeated contravention for any purposes, a notification of a contravention under that provision shall be disregarded if it has been withdrawn before the imposition of a penalty in respect of the matters notified.

(9)For the purposes of this section a service is made available to members of the public if members of the public are customers, in respect of that service, of the provider of that service.

Textual Amendments

F484Words in s. 151(1) inserted (17.11.2021 for specified purposes) by Telecommunications (Security) Act 2021 (c. 31), ss. 1(3), 28(1)(a)

Commencement Information

I230S. 151 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I231S. 151 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Chapter 2U.K.Spectrum use

General functions relating to spectrum useU.K.

F494152General functions of OFCOM in relation to radio spectrumU.K.

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Textual Amendments

F494153United Kingdom Plan for Frequency AuthorisationU.K.

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Textual Amendments

Commencement Information

I232S. 153 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I233S. 153 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494154Duties of OFCOM when carrying out spectrum functionsU.K.

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Textual Amendments

Commencement Information

I234S. 154 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I235S. 154 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494155Advisory service in relation to interferenceU.K.

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Textual Amendments

Commencement Information

I236S. 155 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494156Directions with respect to the radio spectrumU.K.

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Textual Amendments

Commencement Information

I237S. 156 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494157Procedure for directions under s. 156U.K.

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Textual Amendments

Commencement Information

I238S. 157 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Reservation of spectrum for multiplex useU.K.

F494158Special duty in relation to television multiplexesU.K.

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Textual Amendments

Commencement Information

I239S. 158 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Recognised spectrum accessU.K.

F494159Grant of recognised spectrum accessU.K.

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Textual Amendments

Commencement Information

I240S. 159 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494160Effect of grant of recognised spectrum accessU.K.

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Textual Amendments

Commencement Information

I241S. 160 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494161Charges in respect of grants of recognised spectrum accessU.K.

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Textual Amendments

Commencement Information

I242S. 161 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494162Conversion into and from wireless telegraphy licencesU.K.

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Textual Amendments

Commencement Information

I243S. 162 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Crown use of the radio spectrumU.K.

F494163Payments for use of radio spectrum by the CrownU.K.

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Textual Amendments

Commencement Information

I244S. 163 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Limitations and exemptions applied to spectrum useU.K.

F494164Limitations on authorised spectrum useU.K.

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Textual Amendments

Commencement Information

I245S. 164 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I246S. 164 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494165Terms etc. of wireless telegraphy licencesU.K.

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Textual Amendments

Commencement Information

I247S. 165 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I248S. 165 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494166Exemption from need for wireless telegraphy licenceU.K.

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Textual Amendments

Commencement Information

I249S. 166 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I250S. 166 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Award and transfer of licencesU.K.

F494167Bidding for wireless telegraphy licencesU.K.

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Textual Amendments

Commencement Information

I251S. 167 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(2), Sch. 2 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I252S. 167 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494168Spectrum tradingU.K.

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Textual Amendments

Commencement Information

I253S. 168 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Variation and revocation of licencesU.K.

F494169Variation and revocation of wireless telegraphy licencesU.K.

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Textual Amendments

Commencement Information

I254S. 169 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I255S. 169 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Wireless telegraphy registerU.K.

F494170Wireless telegraphy registerU.K.

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Textual Amendments

Commencement Information

I256S. 170 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Information requirementsU.K.

F494171Information requirements in relation to wireless telegraphy licencesU.K.

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Textual Amendments

Commencement Information

I257S. 171 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Criminal proceedings etc.U.K.

F494172Contraventions of conditions for use of wireless telegraphyU.K.

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Textual Amendments

Commencement Information

I258S. 172 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I259S. 172 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494173Meaning of “repeated contravention” in s. 172U.K.

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Textual Amendments

Commencement Information

I260S. 173 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I261S. 173 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494174Procedure for prosecutions of wireless telegraphy offencesU.K.

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Textual Amendments

Commencement Information

I262S. 174 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I263S. 174 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494175Special procedure for contraventions by multiplex licence holdersU.K.

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Textual Amendments

Commencement Information

I264S. 175 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494176Amount of penalty under s. 175U.K.

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Textual Amendments

Commencement Information

I265S. 176 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494177“Relevant amount of gross revenue” for the purposes of s. 176U.K.

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Textual Amendments

Commencement Information

I266S. 177 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F494178Proceedings for an offence relating to apparatus useU.K.

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Textual Amendments

Commencement Information

I267S. 178 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I268S. 178 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494179Modification of penalties for certain wireless telegraphy offencesU.K.

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Textual Amendments

Commencement Information

I269S. 179 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Prospective

F494180Fixed penalties for certain wireless telegraphy offencesU.K.

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Textual Amendments

F494181Power of arrestU.K.

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Textual Amendments

Commencement Information

I270S. 181 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

F494182Forfeiture etc. of restricted apparatusU.K.

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Textual Amendments

Commencement Information

I271S. 182 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Construction of 1949 ActU.K.

F494183Modification of definition of “undue interference”U.K.

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Textual Amendments

Commencement Information

I272S. 183 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I273S. 183 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F494184Modification of definition of “wireless telegraphy”U.K.

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Textual Amendments

Commencement Information

I274S. 184 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Chapter 3U.K.Disputes and appeals

DisputesU.K.

185Reference of disputes to OFCOMU.K.

(1)This section applies in the case of a dispute relating to the provision of network access if it is—

(a)a dispute between different communications providers;

(b)a dispute between a communications provider and a person who makes associated facilities available;

(c)a dispute between different persons making such facilities available;

F495(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F495(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F496(1A)This section also applies in the case of a dispute relating to the provision of network access if—

(a)it is a dispute between a communications provider and a person who is identified, or is a member of a class identified, in a condition imposed on the communications provider under section 45; and

(b)the dispute relates to entitlements to network access that the communications provider is required to provide to that person by or under that condition.]

(2)This section also applies in the case of any other dispute if—

(a)it relates to rights or obligations conferred or imposed by or under [F497a condition set under section 45, or any of the enactments relating to the management of the radio spectrum] ;

(b)it is a dispute between different communications providers; and

(c)it is not an excluded dispute.

(3)Any one or more of the parties to the dispute may refer it to OFCOM.

(4)A reference made under this section is to be made in such manner as OFCOM may require.

(5)The way in which a requirement under subsection (4)—

(a)is to be imposed, or

(b)may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(6)Requirements imposed under subsection (4) may make different provision for different cases.

(7)A dispute is an excluded dispute for the purposes of subsection (2) if it is about—

(a)obligations imposed on a communications provider by SMP apparatus conditions;

F498(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F498(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F498(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)For the purposes of this section—

(a)the disputes that relate to the provision of network access include disputes as to the terms or conditions on which it is or may be provided in a particular case; and

(b)the disputes that relate to an obligation include disputes as to the terms or conditions on which any transaction is to be entered into for the purpose of complying with that obligation.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I275S. 185 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I276S. 185 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F499185A.Power of OFCOM to invite parties to refer disputeU.K.

OFCOM may invite any one or more of the parties to a dispute falling within section 185(1) to refer the dispute to OFCOM under section 185(3).]

Textual Amendments

Modifications etc. (not altering text)

186Action by OFCOM on dispute referenceU.K.

(1)This section applies where a dispute is referred to OFCOM under and in accordance with section 185.

(2)OFCOM must decide whether or not it is appropriate for them to handle the dispute.

[F500(2A)In relation to a dispute falling within subsection 185(1), OFCOM may in particular take into account their priorities and available resources in considering whether it is appropriate for them to handle the dispute.]

(3)[F501In relation to a dispute falling within section 185(1A) or (2),] Unless they consider—

(a)that there are alternative means available for resolving the dispute,

(b)that a resolution of the dispute by those means would be consistent with the [F502six] requirements set out in section 4, and

(c)that a prompt and satisfactory resolution of the dispute is likely if those alternative means are used for resolving it,

their decision must be a decision that it is appropriate for them to handle the dispute.

(4)As soon as reasonably practicable after OFCOM have decided—

(a)that it is appropriate for them to handle the dispute, or

(b)that it is not,

they must inform each of the parties to the dispute of their decision and of their reasons for it.

(5)The notification must state the date of the decision.

(6)[F503In relation to a dispute falling within section 185(1A) or (2),] Where—

(a)OFCOM decide that it is not appropriate for them to handle the dispute, but

(b)the dispute is not resolved by other means before the end of the four months after the day of OFCOM’s decision,

the dispute may be referred back to OFCOM by one or more of the parties to the dispute.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I277S. 186 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I278S. 186 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

187Legal proceedings about referred disputesU.K.

(1)Where a dispute is referred or referred back to OFCOM under this Chapter, the reference is not to prevent—

(a)the person making it,

(b)another party to the dispute,

(c)OFCOM, or

(d)any other person,

from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.

(2)Nor is the reference or reference back to OFCOM under this Chapter of a dispute to prevent OFCOM from—

(a)giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of any obligation imposed by or under any an enactment;

(b)exercising any of their other powers under any enactment in relation to a contravention of such an obligation; or

(c)taking any other step in preparation for or with a view to doing anything mentioned in the preceding paragraphs.

(3)If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—

(a)OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires; and

(b)the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make such a determination.

(4)Subsection (1) is subject to section 190(8) and to any agreement to the contrary binding the parties to the dispute.

(5)In this section “legal proceedings” means civil or criminal proceedings in or before a court.

Modifications etc. (not altering text)

Commencement Information

I279S. 187 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I280S. 187 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

188Procedure for resolving disputesU.K.

(1)This section applies where—

(a)OFCOM have decided under section 186(2) that it is appropriate for them to handle a dispute; or

(b)a dispute is referred back to OFCOM under section 186(6).

(2)OFCOM must—

(a)consider the dispute; and

(b)make a determination for resolving it.

(3)The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.

(4)In the case of a dispute referred back to OFCOM under section 186(6), that procedure may involve allowing the continuation of a procedure that has already been begun for resolving the dispute by alternative means.

(5)Except in exceptional circumstances and subject to section 187(3), OFCOM must make their determination no more than four months after the following day—

(a)in a case falling within subsection (1)(a), the day of the decision by OFCOM that it is appropriate for them to handle the dispute; and

(b)in a case falling within subsection (1)(b), the day on which the dispute is referred back to them.

(6)Where it is practicable for OFCOM to make their determination before the end of the four month period, they must make it as soon in that period as practicable.

(7)OFCOM must—

(a)send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute; and

(b)publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.

(8)The publication of information under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention, to the extent that they consider appropriate, of members of the public.

Modifications etc. (not altering text)

Commencement Information

I281S. 188 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I282S. 188 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F504189Disputes involving other member StatesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

190Resolution of referred disputesU.K.

(1)Where OFCOM make a determination for resolving a dispute referred to them under this Chapter, their only powers are those conferred by this section.

(2)Their main power (except in the case of a dispute relating to rights and obligations conferred or imposed by or under the enactments relating to the management of the radio spectrum) is to do one or more of the following—

(a)to make a declaration setting out the rights and obligations of the parties to the dispute;

(b)to give a direction fixing the terms or conditions of transactions between the parties to the dispute;

(c)to give a direction imposing an obligation, enforceable by the parties to the dispute, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM; and

(d)for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties of the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.

[F505(2A)In relation to a dispute falling within section 185(1), OFCOM must exercise their powers under subsection (2) in the way that seems to them most appropriate for the purpose of securing—

(a)efficiency;

(b)sustainable competition;

(c)efficient investment and innovation; and

(d)the greatest possible benefit for the end-users of public electronic communications services.]

(3)Their main power in the excepted case is just to make a declaration setting out the rights and obligations of the parties to the dispute.

(4)Nothing in this section prevents OFCOM from exercising the following powers in consequence of their consideration under this Chapter of any dispute—

(a)their powers under Chapter 1 of this Part to set, modify or revoke general conditions, universal service conditions, access related conditions, privileged supplier conditions or SMP conditions;

(b)their powers to vary, modify or revoke wireless telegraphy licences or grants of recognised spectrum access;

(c)their power to make, amend or revoke [F506regulations under section 8 or 45 of the Wireless Telegraphy Act 2006] .

(5)In the case of a dispute referred back to OFCOM under section 186(6)—

(a)OFCOM may, in making their determination, take account of decisions already made by others in the course of an attempt to resolve the dispute by alternative means; and

(b)the determination made by OFCOM may include provision ratifying decisions so made.

(6)Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute—

(a)to make payments to another party to the dispute in respect of costs and expenses incurred by that other party in consequence of the reference of the dispute to OFCOM, or in connection with it; and

(b)to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute.

[F507and may determine the amount of the costs and when the costs are to be paid.]

[F508(6A)OFCOM may not, under subsection (6)(a), require a party to the dispute to make payments to another party unless OFCOM have considered—

(a)the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempt has been made to resolve the dispute), and

(b)whether OFCOM has made a decision in the party’s favour in respect of the whole or a part of the dispute.

(6B)OFCOM may not, under subsection (6)(b), require payments to be made to them by a party to the dispute unless—

(a)the dispute relates to the rights and obligations of the parties to the dispute under the enactments relating to the management of the radio spectrum, or

(b)they have considered the matters referred to in subsection (6A)(a) and (b).]

F509(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)A determination made by OFCOM for resolving a dispute referred or referred back to them under this Chapter binds all the parties to the dispute.

(9)Subsection (8) is subject to section 192.

Textual Amendments

F506Words in s. 190(4)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 27

Modifications etc. (not altering text)

Commencement Information

I283S. 190 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I284S. 190 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

191OFCOM’s power to require information in connection with disputeU.K.

(1)Where a dispute has been referred or referred back to OFCOM under this Chapter, they may require any person to whom subsection (2) applies to provide them with all such information as they may require for the purpose of—

(a)deciding whether it is appropriate for them to handle the dispute; [F510or]

F511(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)considering the dispute and making a determination for resolving it.

(2)This subsection applies to—

(a)a party to the dispute; and

(b)a person who is not a party to the dispute but appears to OFCOM to have information that is relevant to the matters mentioned in subsection (1)(a) to (c).

(3)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.

(4)In fixing the period within which information is to be provided in accordance with a requirement under this section OFCOM must have regard, in particular, to—

(a)their obligation to make a determination for resolving the dispute within the period specified in section 188;

(b)the nature of the dispute; and

(c)the information that is required.

(5)Sections 138 to 144 apply for the enforcement of a requirement under this section as they apply for the enforcement of requirements under section 135 or 136.

F512(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I285S. 191 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I286S. 191 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

AppealsU.K.

192Appeals against decisions by OFCOM, the Secretary of State etc.U.K.

(1)This section applies to the following decisions—

(a)a decision by OFCOM under this Part [F513or any of Parts 1 to 3 of the Wireless Telegraphy Act 2006] that is not a decision specified in Schedule 8;

(b)a decision (whether by OFCOM or another) to which effect is given by a direction, approval or consent given for the purposes of a provision of a condition set under section 45;

(c)a decision to which effect is given by the modification or withdrawal of such a direction, approval or consent;

(d)a decision by the Secretary of State to which effect is given by one of the following—

(i)a specific direction under section 5 that is not about the making of a decision specified in Schedule 8;

(ii)a restriction or condition set by regulations under section 109;

[F514(iia)an order under section 124P;]

(iii)a direction to OFCOM under section 132;

(iv)a specific direction under [F515section 5 of the Wireless Telegraphy Act 2006] that is not about the making of a decision specified in Schedule 8.

[F516(e)a decision by the CMA to which effect is given by an order made under section 193A.]

(2)A person affected by a decision to which this section applies may appeal against it to the Tribunal.

(3)The means of making an appeal is by sending the Tribunal a notice of appeal in accordance with Tribunal rules.

(4)The notice of appeal must be sent within the period specified, in relation to the decision appealed against, in those rules.

(5)The notice of appeal must set out—

(a)the provision under which the decision appealed against was taken; and

(b)the grounds of appeal.

(6)The grounds of appeal must be set out in sufficient detail to indicate—

(a)to what extent (if any) the appellant contends that the decision appealed against was based on an error of fact or was wrong in law or both; and

(b)to what extent (if any) the appellant is appealing against the exercise of a discretion by OFCOM, by the Secretary of State [F517, by the CMA] or by another person.

(7)In this section and Schedule 8 references to a decision under an enactment—

(a)include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but

(b)include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty;

and references in the following provisions of this Chapter to a decision appealed against are to be construed accordingly.

(8)For the purposes of this section and the following provisions of this Chapter a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.

Textual Amendments

F513Words in s. 192(1)(a) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 28(a)

F515Words in s. 192(1)(d)(iv) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 28(b)

Modifications etc. (not altering text)

Commencement Information

I287S. 192 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I288S. 192 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

193Reference of price control matters to the [F518CMA] U.K.

(1)Tribunal rules must provide in relation to appeals under section 192(2) relating to price control that the price control matters arising in that appeal, to the extent that they are matters of a description specified in the rules, must be referred by the Tribunal to the [F519CMA] for determination.

(2)Where a price control matter is referred in accordance with Tribunal rules to the [F520CMA] for determination, [F521the determination of the matter is to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, and [F522, having regard to the principles to be applied by the Tribunal under section 194A(2), is to be performed]]—

(a)in accordance with the provision made by the rules;

(b)in accordance with directions given to [F523the CMA] by the Tribunal in exercise of powers conferred by the rules; and

(c)subject to the rules and any such directions, using such procedure as the [F524CMA] consider appropriate.

(3)The provision that may be made by Tribunal rules about the determination of a price control matter referred to the [F525CMA] in accordance with the rules includes provision about the period within which that matter is to be determined by [F526the CMA] .

(4)Where the [F527CMA] determines a price control matter in accordance with Tribunal rules, they must notify the Tribunal of the determination they have made.

(5)The notification must be given as soon as practicable after the making of the notified determination.

(6)Where a price control matter arising in an appeal is required to be referred to the [F528CMA] under this section, the Tribunal, in deciding the appeal F529..., must decide that matter in accordance with the determination of [F530the CMA] .

(7)Subsection (6) does not apply to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the [F531CMA] is a determination that would fall to be set aside on such an application.

(8)Section 117 of the Enterprise Act 2002 (c. 40) (offences of supplying false or misleading information) shall have effect in relation to information supplied to the [F531CMA] in connection with their functions under this section as it has effect in relation to information supplied to them in connection with their functions under Part 3 of that Act.

(9)For the purposes of this section an appeal relates to price control if the matters to which the appeal relates are or include price control matters.

(10)In this section [F532and section 193A] “price control matter” means a matter relating to the imposition of any form of price control by an SMP condition the setting of which is authorised by—

(a)section 87(9);

(b)section 91; or

(c)section 93(3).

Textual Amendments

F522Words in s. 193(2) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(2), 118(6) (with s. 87(12)); S.I. 2017/765, reg. 2(w)

F529Words in s. 193(6) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 87(3), 118(6) (with s. 87(12)); S.I. 2017/765, reg. 2(w)

Commencement Information

I289S. 193 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I290S. 193 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F533193ARecovery of CMA's costs in respect of price control referencesU.K.

(1)Where a determination is made on a price control matter referred by virtue of section 193, the CMA may make an order in respect of the costs incurred by it in connection with the reference (a “costs order”).

(2)A costs order may require the payment to the CMA of some or all of those costs by such parties to the appeal which gave rise to the reference, other than OFCOM, as the CMA considers appropriate.

(3)A costs order must—

(a)set out the total costs incurred by the CMA in connection with the reference, and

(b)specify the proportion of those costs to be paid by each party to the appeal in respect of whom the order is made.

(4)In deciding on the proportion of costs to be paid by a party to the appeal the CMA must, in particular, consider—

(a)the extent to which the determination on the reference upholds OFCOM's decision in relation to the price control matter in question,

(b)the extent to which the costs were attributable to the involvement in the appeal of the party, and

(c)the conduct of the party.

(5)A costs order—

(a)must be made as soon as reasonably practicable after the making of the determination on the reference, but

(b)does not take effect unless the Tribunal, in deciding the appeal which gave rise to the reference, decides the price control matter which is the subject of the reference in accordance with the determination of the CMA (see section 193(6)).

(6)In a case where the Tribunal decides the price control matter in question otherwise than as mentioned in subsection (5)(b), the CMA may make an order under this subsection in respect of the costs incurred by it in connection with the reference.

(7)Subsections (2) to (4) apply in relation to an order under subsection (6) as they apply in relation to an order under subsection (1); but for that purpose the reference in subsection (4)(a) to the determination on the reference is to be read as a reference to the decision of the Tribunal mentioned in subsection (6).

(8)An order under subsection (6) must be made as soon as reasonably practicable after the decision of the Tribunal mentioned in that subsection.

(9)An amount payable to the CMA by virtue of an order made under this section is recoverable summarily as a civil debt (but this does not affect any other method of recovery).

(10)The CMA must pay any sums it receives by virtue of this section into the Consolidated Fund.

(11)The functions of the CMA under this section, other than those under subsections (9) and (10), are to be carried out on behalf of the CMA by the group constituted by the chair of the CMA in relation to the reference in question.]

Textual Amendments

F534194Composition of Competition Commission for price control referencesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I291S. 194 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I292S. 194 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F535194ADisposal of appeals under section 192 (other than against certain decisions of Secretary of State)U.K.

(1)This section applies to an appeal against a decision referred to in section 192(1)(a), (b), (c), (d)(iii) or (e).

(2)The Tribunal must decide the appeal, by reference to the grounds of appeal set out in the notice of appeal, by applying the same principles as would be applied by a court on an application for judicial review.

[F536(2A)In a case where the appeal is against a relevant security decision of OFCOM, the Tribunal is to apply those principles without taking any special account of the merits of the case.

(2B)Subsection (2A) has effect notwithstanding any [F537assimilated] case law F538...]

(3)The Tribunal may—

(a)dismiss the appeal or quash the whole or part of the decision to which it relates; and

(b)where it quashes the whole or part of that decision, remit the matter back to the decision-maker with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.

(4)The decision-maker must comply with a direction under subsection (3)(b).

(5)In its application to a decision of the Tribunal under this section, paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (exclusion of commercial information from documents recording Tribunal decisions) is to have effect as if, for the reference to the undertaking to which commercial information relates, there were substituted a reference to any person to whom it relates.

(6)In this section

  • [F539“assimilated case law” has the meaning given by section 6(7) of the European Union (Withdrawal) Act 2018;]

  • “the decision-maker” means the person who made the decision appealed against;

  • [F540“relevant security decision” means a decision under any of sections 105I, 105L to 105O and 105U to 105W;

  • F541...]]

Textual Amendments

Modifications etc. (not altering text)

195[F542Disposal of appeals under section 192 against certain decisions of Secretary of State]U.K.

[F543(1)This section applies to an appeal against a decision referred to in section 192(1)(d)(i), (ii), (iia) or (iv).]

(2)The Tribunal shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.

(3)The Tribunal’s decision must include a decision as to what (if any) is the appropriate action for [F544 the Secretary of State ] to take in relation to the subject-matter of the decision under appeal.

(4)The Tribunal shall then remit the decision under appeal to [F544 the Secretary of State ] with such directions (if any) as the Tribunal considers appropriate for giving effect to its decision.

(5)The Tribunal must not direct [F544 the Secretary of State ] to take any action which he would not otherwise have power to take in relation to the decision under appeal.

(6)It shall be the duty of [F544 the Secretary of State ] to comply with every direction given under subsection (4).

(7)In the case of an appeal against a decision given effect to by a restriction or condition set by regulations under section 109, the Tribunal must take only such steps for disposing of the appeal as it considers are not detrimental to good administration.

(8)In its application to a decision of the Tribunal under this section, paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of commercial information from documents recording Tribunal decisions) is to have effect as if for the reference to the undertaking to which commercial information relates there were substituted a reference to any person to whom it relates.

F545(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F542S. 195 title substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(10), 118(6) (with s. 87(12)); S.I. 2017/765, reg. 2(w)

F544Words in s. 195(3)-(6) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(8), 118(6) (with s. 87(12)); S.I. 2017/765, reg. 2(w)

F545S. 195(9) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 87(9), 118(6) (with s. 87(12)); S.I. 2017/765, reg. 2(w)

Commencement Information

I293S. 195 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I294S. 195 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

196Appeals from the TribunalU.K.

(1)A decision of the Tribunal on an appeal under section 192(2) may itself be appealed.

(2)An appeal under this section—

(a)lies to the Court of Appeal or to the Court of Session; and

(b)must relate only to a point of law arising from the decision of the Tribunal.

(3)An appeal under this section may be brought by—

(a)a party to the proceedings before the Tribunal; or

(b)any other person who has a sufficient interest in the matter.

(4)An appeal under this section requires the permission of the Tribunal or of the court to which it is to be made.

(5)In this section references to a decision of the Tribunal include references to a direction given by it under section 195(4).

Modifications etc. (not altering text)

Commencement Information

I295S. 196 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I296S. 196 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Interpretation of Chapter 3U.K.

197Interpretation of Chapter 3U.K.

(1)In this Chapter—

  • [F546“the CMA” means the Competition and Markets Authority;]

  • “network access” has the same meaning as in Chapter 1 of this Part;

  • “the Tribunal” means the Competition Appeal Tribunal; and

  • “Tribunal rules” means rules made under section 15 of the Enterprise Act 2002.

F547(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F548(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I297S. 197 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I298S. 197 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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