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Communications Bill


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

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 98    Procedure for directions under ss. 96 and 97

     (1)    Except in an urgent case, OFCOM are not to give a direction under section 96

or 97 unless they have—

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

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

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proposing to impose by that direction;

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

proposals and of proposing steps for remedying the situation; and

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

period allowed by them for the contravening provider or the

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contravening supplier to take advantage of that opportunity.

     (2)    That period must be one ending not less than one month after the day of the

giving of the notification.

     (3)    As soon as practicable after giving a direction under section 96 or 97 in an

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

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supplier with an opportunity of—

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

its conditions; and

           (b)           proposing steps for remedying the situation.

     (4)    A case is an urgent case for the purposes of this section if OFCOM—

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

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

direction under section 96 or 97, for the making and consideration of

representations; and

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

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of subsection (1).

     (5)    The contraventions fall within this subsection if they have resulted in, or create

an immediate risk of—

           (a)           a serious threat to the safety of the public, to public health or to national

security;

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

contravening provider or contravening supplier) who are

communications providers or persons who make associated facilities

available; or

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

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electronic communications networks, electronic communications

services or associated facilities.

     (6)    In this section—

                    “contravening provider” has the same meaning as in section 96; and

                     “contravening supplier” has the same meaning as in section 97.

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 99    Enforcement of directions under ss. 94, 96 and 97

     (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

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94(4) or 96; or

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

 

 

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

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     (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 97; 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—

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

maximum;

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

     (4)    Sections 90 to 94 apply in relation to a contravention of conditions imposed by

a direction under section 94, 96 or 97 as they apply in relation to a

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contravention of conditions set under section 41.

 100   Civil liability for breach of conditions or enforcement notification

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

           (a)           the conditions set under section 41 which apply to him,

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

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section 91, and

           (c)           the conditions imposed by a direction under section 94 or 96,

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

of the condition or requirement.

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

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           (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

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                  (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 or requirement

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in question

OFCOM’s duty to intervene on network access issues

 101   Consideration and determination of network access questions

     (1)    This section applies where—

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

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needs to be determined; and

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

would be appropriate for them to exercise their powers under this

Chapter to set, modify or revoke conditions falling within subsection

(2).

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     (2)    Conditions falling within this subsection are—

           (a)           access-related conditions authorised by section 69(2) or (4); and

           (b)           SMP services conditions authorised by section 83.

 

 

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

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

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

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

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

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

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publish a notification of their decision.

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

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

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

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

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

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

particular case.

Electronic communications code

 102   Application of the electronic communications code

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

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

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

the purpose of translating the telecommunications code into a code applicable

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

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effect.

     (3)    The electronic communications code shall have effect—

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

OFCOM; and

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

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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

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network; or

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

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

providers of electronic communications networks for the purposes of

the provision by them of their networks.

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     (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

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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 conduit system, or part

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

 

 

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

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     (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 16(3) of the code (minimum

compensation).

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

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 103   Procedure for directions applying code

     (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.

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

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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

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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

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giving a notification of the revised requirements.

     (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

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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

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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

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deals.

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

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

     (6)    Before giving a direction under section 102, OFCOM must—

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

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           (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;

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

 

 

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

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           (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;

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           (b)           set out any proposals of theirs to impose terms under section 102(5);

            but this subsection is subject to sections 109(7) and 111(5).

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

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

notification.

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     (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.

 104   Register of persons in whose case code applies

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     (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 102.

     (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

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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

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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—

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           (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).

 105   Restrictions and conditions subject to which code applies

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

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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—

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           (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;

 

 

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

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           (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;

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           (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.

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     (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

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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—

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           (a)           OFCOM; and

           (b)           such other persons as he considers appropriate.

 106   Enforcement of restrictions and conditions

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

a person in whose case the electronic communications code applies is

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

restrictions or conditions under section 105, 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;

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

determination has been made; and

           (c)           specifies the period during which the person notified has an

opportunity of doing the things specified in subsection (3).

     (3)    Those things are—

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           (a)           making representations about the matters notified;

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

contravention; and

           (c)           remedying the consequences of notified contraventions.

     (4)    Subject to subsections (5) to (7), the period for doing those things must be the

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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

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

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           (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—

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           (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.

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     (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

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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

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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.

     (10)   For the purposes of this section a contravention is a repeated contravention, in

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relation to a notification with respect to that contravention, if—

           (a)           a previous notification under this section has been given in respect of

the same contravention or in respect of another contravention of the

same requirement; and

           (b)           the subsequent notification is given no more than twelve months after

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the day of the making by OFCOM of a determination for the purposes

of section 107(2) or 108(2) that the contravention to which the previous

notification related did occur.

 107   Enforcement notification for contravention of code restrictions

     (1)    This section applies where—

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

section 106;

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

representations about the matters notified; and

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

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     (2)    OFCOM may give the notified provider an enforcement notification if they are

satisfied—

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

notified, of a requirement specified in the notification under section

106; and

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