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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 | 5 |
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 | 10 |
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 | 15 |
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— | 20 |
(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 | 25 |
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; | 30 |
(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 | 35 |
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. | 40 |
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 | 45 |
94(4) or 96; or | |
(b) in contravention of a restriction contained in such a direction. | |
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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— | 5 |
(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 | 10 |
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 | 15 |
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— | 20 |
(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 | 25 |
(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 | 30 |
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 | 35 |
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). | 40 |
(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. | |
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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 | 5 |
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. | 10 |
(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 | 15 |
(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 | 20 |
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 | 25 |
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 | 30 |
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. | 35 |
(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 | 40 |
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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(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. | 5 |
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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
(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; | 45 |
(b) a statement of their reasons for that proposal; | |
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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; | 5 |
(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. | 10 |
(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 | 15 |
(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 | 20 |
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 | 25 |
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— | 30 |
(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 | 35 |
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— | 40 |
(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; | |
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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; | 5 |
(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. | 10 |
(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 | 15 |
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— | 20 |
(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 | 25 |
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; | 30 |
(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— | 35 |
(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 | 40 |
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 | 45 |
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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— | 5 |
(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. | 10 |
(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 | 15 |
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 | 20 |
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 | 25 |
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 | 30 |
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— | 35 |
(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. | 40 |
(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 | 45 |
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