House of Commons - Explanatory Note
Communications Bill - continued          House of Commons

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Clause 122: Possession or supply of apparatus etc. for contravening s.121

283.     It is an offence under subsection (1) for a person to have in his possession or under his control anything, including data, which may be used for or in connection with obtaining an electronic communications service with the intent to use the thing or to allow it to be used to obtain, or for a purpose connected with the obtaining of, an electronic communications service dishonestly.

284.     It is an offence under subsection (2) for anyone to supply or offer to supply anything that may be used for or in connection with obtaining an electronic communications service when he knows or believes that the recipient of those things intends to use them or to allow them to be used to obtain, or for a purpose connected with the obtaining of, an electronic communications service dishonestly.

285.     A person found guilty of either offence will be liable to a fine or imprisonment, or both.

286.     This clause replaces section 42A of the Telecommunications Act 1984 which is repealed by Schedule 19.

Clause 123: Improper use of public electronic communications network

287.     Anyone who sends a message or other matter that is grossly offensive or is of an indecent, obscene or menacing character (other than in the course of providing a programme service) by means of a public electronic communications network, or causes them to be sent, is guilty of an offence. It is also an offence under subsection (2) for anyone to send or cause to be sent false messages by means of a public electronic communications network or persistently to make use of a public electronic communications network, for the purpose of causing annoyance, inconvenience or needless anxiety.

    *A programme service has the same meaning as in the Broadcasting Act 1990.

288.     This clause replaces section 43 of the Telecommunications Act 1984, which is repealed by Schedule 19.

Clause 124: Notification of misuse of networks and services

289.     This clause gives OFCOM powers of enforcement in respect of persistent misuse of an electronic communications network or an electronic communications service. Where OFCOM determine that there are reasonable grounds to believe that a person has persistently misused an electronic communications network or an electronic communications service, OFCOM may notify that person accordingly, and allow him a specified period in which to make representations to OFCOM. The period to be allowed for the making of representations is one month, unless OFCOM consider that the misuse is continuing and the harm caused makes it necessary for it to be stopped as soon as possible, in which case, the period is 7 days. Under subsection (8), the Secretary of State may by order specify uses of an electronic communications network or an electronic communications service that shall not be treated as a misuse of a network or service where she considers that appropriate alternative means of dealing with those uses exist.

*A person misuses an electronic communications network or an electronic communications service, under subsection (4), if the effect or likely effect of its use causes another person unnecessarily to suffer annoyance, inconvenience or anxiety or if he uses a network or service to engage in conduct the effect or likely effect of which causes another person unnecessarily to suffer annoyance, inconvenience or anxiety.

*A person persistently misuses an electronic communications network or an electronic communications service under subsection (5) where his misuse is repeated on a sufficient number of occasions so that is clear that the misuse forms part of pattern of behaviour or constitutes recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

Clause 125: Enforcement notifications for stopping persistent misuse

290.     If, by the end of the period specified in clause 124, OFCOM are satisfied that the person has persistently misused an electronic communications network or an electronic communications service and that he has not taken all appropriate steps to secure that the misuse ceases and is not repeated, and to remedy the misuse, they may serve an enforcement notice. Such a notice requires the notified person to take all steps to secure that the misuse ceases and is not repeated, and to remedy the misuse.

Clause 126: Penalties for persistent misuse

291.     OFCOM may impose a penalty if a person notified under clause 124 has persistently misused an electronic communications network or an electronic communications service. Where an enforcement notification issued in accordance with clause 125 has not been complied with, OFCOM may also impose a penalty.

292.     When deciding on the amount of financial penalty, OFCOM are required to consider whether the fine is appropriate and proportionate, and to take account of any representation made by the person concerned and any steps taken to secure that the misuse ceases and is not repeated and to remedy the misuse. The penalty may not exceed £5000. However, the Secretary of State may by order amend the maximum penalty.

293.     Under subsection (8), people may be liable for an offence under clauses 121 to 123 and have a penalty imposed by OFCOM under clause 126 in respect of the same conduct.

Clause 127: Statement of policy on persistent misuse

294.     This clause places OFCOM under a duty to publish and keep up-to-date a statement of policy on how they will use their powers under clauses 124 to 126 and how they will use any information obtained in exercise of their powers.

Clause 128: Powers to require suspension or restriction of a provider's entitlement

295.     This clause gives the Secretary of State a power to direct OFCOM to issue a person with a direction to suspend or restrict that person's entitlement to provide a network, service and/or associated facility where she has reasonable grounds for believing that it is necessary to do so to protect the public from any threat to public safety or public health, or in the interests of national security. This is permitted by Article 3 of the Authorisation Directive.

296.     Subsection (2) places OFCOM under a duty to comply with any such direction by the Secretary of State. Once a suspension or restriction is in place, both the Secretary of State and OFCOM must allow the person in question an opportunity to make representations to them, and to propose steps for remedying the situation. OFCOM may modify the terms of a suspension or restriction imposed under this clause. The Secretary of State may direct OFCOM to revoke a suspension or restriction imposed under this clause.

297.     A direction by OFCOM under this clause may suspend entitlement generally or in relation to particular networks, services or facilities, and may take effect indefinitely or for a fixed period. It may also postpone the suspension or restriction (and, if doing so, may also impose additional conditions - such as compensation of their customers for loss suffered - in order to protect the customers of the provider).

Clause 129: Enforcement of directions under s. 128

298.     It is an offence for any person to provide a network, service or associated facility while he is subject to a direction suspending his entitlement to do so or to provide such a network, service or facility in contravention of any restriction. A person found guilty will be liable to a fine. A third party who sustains loss or damage as a result of a breach of such a direction or of an act which induces a breach of the duty or interferes with its performance may bring proceedings against the person concerned. In such proceedings, a person may defend himself by demonstrating that he did everything reasonable and exercised all due diligence to avoid breaching the condition in question.

Clause 130: Restrictions in leases and licences

299.     This clause replaces section 96 of the Telecommunications Act 1984, which is repealed by Schedule 19. Subsection (3) amends any provision, in any lease, licence or other premises-related agreement granted or entered into after the commencement of this clause, which prohibits or restricts an occupier's choice of electronic communications services providers to a person who has an interest in the relevant premises or a person selected by a person with an interest in the relevant premises. Where a lease, licence or other premise-related agreement contains a provision imposing such prohibitions or restrictions, that provision is to have effect as if it provided for the election of an alternative electronic communications service provider by the occupier, subject to the prior consent of the lessor, licensor or other party to the agreement, such consent not to be unreasonably withheld.

* The meaning of lease is given in subsection (7) and includes a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy.

300.      Subsection (4) amends any provision, in a lease of one year or more granted or entered into after the commencement of this clause or more or in a premises-related agreement to which such a lease applies, that imposes any other prohibition or restriction on the lessee relating to an electronic communications matter where such prohibition or restriction relates to anything done inside a building occupied by the lessee or for purposes in connection with the provision of an electronic communications service by a communications provider to the lessee. Where a lease of one year or more or a premises-related agreement to which a lease of one year or more is applied contains a provision imposing such a prohibition or restriction, the provision is to have effect as if the prohibition or restriction applied only where the lessor had not given his consent, such consent not to be unreasonably withheld.

*For the purposes of this clause, an electronic communications matter includes the provision of an electronic communications network, the provision of an electronic communications service, the connection of electronic communications apparatus to an electronic communications network specified in an order for the purposes of this section, the connection of an electronic communications network to another electronic communications network specified in an order for the purposes of this section, and the installation, maintenance, adjustment, repair, alteration or use of electronic communications apparatus for the purposes of providing an electronic communications network or an electronic communications service.

301.     Under subsection (6), OFCOM has the power by order to exclude certain provisions in leases, licences or other premises-related agreements falling within the remit of this clause. OFCOM may also by order apply the provisions of this clause to leases, licences or other premises-related agreements entered into before the commencement of this clause under subsection (9). The provisions of this clause apply without prejudice to the application of the electronic communications code.

Clause 131: Information required for purposes of Chapter 1 functions

302.     This clause gives OFCOM information-gathering powers. Subject to the restrictions in clause 133, it allows OFCOM to require any person falling within subsection (2), including a communications provider, to provide OFCOM with all such information as OFCOM consider necessary for the purpose of carrying our their functions under Chapter 1 of Part 2 of the Bill.

303.     This includes information for the following purposes:

  • investigating possible breaches of conditions of entitlement, or of the code, or of a transitional scheme after the cessation of the application of the electronic communications code;

  • ascertaining or verifying the amount of any administrative charge payable under clause 34, or of any financial contribution towards the cost of complying with universal service obligations;

  • ascertaining whether a condition set under clause 41 continues to be effective;

  • designating a universal service provider under clause 62;

  • carrying out a review under clauses 62 or 66;

  • identifying markets and carrying out market analyses for the purposes of Chapter 1 Part 2 of the Bill;

  • assessing whether any network access question gives rise to a duty under clause 101 and considering any matter while exercising that duty;

  • statistical purposes connected with OFCOM's functions under Chapter 1 of Part 2 of the Bill.

This clause, clause 132 and clause 133, implement Article 5 of the Framework Directive, Articles 6(1), 10(1) and 11 of, and condition 10 of Part A to, the Annex to the Authorisation Directive, Article 11(2) of the Access Directive, and Articles 11, 21 and 22 (in so far as those Articles necessitate the provision of information) of the Universal Service Directive.

Clause 132: Information required for related purposes

304.     Subject to the restrictions in clause 133, clause 132 allows OFCOM to require communications providers and persons making available associated facilities to provide OFCOM with information necessary to enable OFCOM:

  • to carry out comparative overviews of the quality and price of services provided by communications providers or of associated facilities;

  • for related statistical purposes.

Clause 133: Restriction on imposing information requirements

305.     OFCOM may not use their powers under clauses 131 and 132 to request information relating to a potential breach of a general condition unless OFCOM's investigation is in response to a complaint; they have reason to believe that a breach has occurred; they have decided to investigate to see whether the condition is being complied with; or the condition concerns sharing the burden of providing a universal service.

306.     Any demands made by OFCOM must be proportionate to the use to which they intend to put the information, and must describe the information required and state the reasons why it is required. This implements Article 11(1) and (2) of the Authorisation Directive. Unless the demand is for the purpose of determining who is liable to a charge under clause 34 (in which case other appropriate methods may be used) any demand must be set out in a notice and be served on the person from whom the information is requested.

Clause 134: Notification of contravention of information requirements

307.     Where OFCOM have reasonable grounds to believe that a person is or has been in breach of any requirement under clause 131 or 132, they may notify that person accordingly, and allow him a specified period of time (usually one month) in which to make representations to OFCOM, and to take steps to comply with the notified requirement. This clause, and clauses 135, 136 and 140 relate to enforcement of the information provisions applicable to communications providers or persons making associated facilities available and together implement Article 10 of the Authorisation Directive.

Clause 135: Penalties for contravention of information requirement

308.     Where a notified provider has not complied with a requirement notified under clause 134, has not remedied the consequences of the notified contravention and no proceedings for an offence under clause 140 have been brought, OFCOM may impose a penalty. In deciding on the amount of a financial penalty, OFCOM are required to consider whether the penalty is appropriate and proportionate, and to take account of any representations made by the person concerned and any steps taken by him to comply with the condition or restriction in question. The maximum fine that may be imposed under this clause is £50,000. Secretary of State may by order amend this provision so as to substitute a different maximum penalty.

Clause 136: Suspending service provision for information contraventions

309.     This clause gives OFCOM a power to suspend or restrict a person's entitlement to provide networks, services and/or associated facilities where OFCOM are satisfied that that person is in serious and repeated breach of any requirements imposed on him under clause 131 or 132, that the requirements are not requirements imposed for the purposes connected with the carrying out of OFCOM's functions in relation to SMP apparatus conditions and that an attempt by the imposition of penalties under clause 135 or the bringing of proceedings for an offence under clause 140, to secure compliance has failed. The suspension or restriction must be appropriate and proportionate to the seriousness of the repeated contraventions.

310.     A direction by OFCOM under this clause may suspend entitlement generally or in relation to particular networks, services or facilities and may take effect indefinitely or for a fixed period. Where OFCOM exercise these powers, they must allow the person in question to make representations to them and, if appropriate, OFCOM may revoke the suspension or restriction. A direction may also include, where appropriate, conditions to protect the customers of a provider, including the payment of compensation.

Clause 137: Suspending apparatus supply for information contraventions

311.     This clause gives OFCOM a power to suspend or restrict a person from supplying electronic communications apparatus where OFCOM are satisfied that that the person is in serious and repeated breach of any requirement of OFCOM to provide information for the purpose of clause 131, and that an attempt, by the imposition of penalties under clause 135 or the bringing of proceedings for an offence under clause 140, to secure compliance has failed. The suspension or restriction must be appropriate or proportionate to the seriousness of the repeated contraventions.

312.     A direction by OFCOM under this clause may require a person to cease supplying electronic communications apparatus generally or in relation to particular electronic communications apparatus. The direction may take effect indefinitely or for a fixed period. A direction may also include, where appropriate, conditions to protect the customers of a supplier, including the payment of compensation. When OFCOM exercise these powers, they must allow the person in question to make representations to them and, if appropriate, OFCOM may revoke the suspension or restriction.

Clause 138: Procedure for directions under sections 136 and 137

313.     Unless a case is urgent, before exercising their powers under clauses 136 and 137, OFCOM must notify a contravening provider or supplier of the proposed direction, allow him at least one month to make representations and consider each representation made by him.

    *The meaning of an urgent case is set out in subsections (4) and (5). Such a case arises where there is a serious threat to public safety, public health or national security or a serious economic or operational problem that makes it inappropriate to give a contravening provider or supplier time to make representations.

314.      If a case is urgent, OFCOM may give a direction without consulting the contravening provider or supplier. However, as soon as practicable after giving a direction in an urgent case, OFCOM must provide the relevant contravening provider or supplier with an opportunity to make representations and to propose steps to remedy the contravention.

Clause 139: Enforcement of directions under ss. 136 and 137

315.     It is an offence for any person to provide an electronic communications network, an electronic communications service or an associated facility while he is subject to a direction issued under clause 136 suspending his entitlement to do so or where he does so in contravention of any restriction specified in the direction. It is also an offence for any person to supply electronic communications apparatus while he is subject to a direction issued under clause 137 suspending his entitlement to do so or where he does so in contravention of any restriction specified in the direction. A person found guilty of either offence will be liable to a fine.

Clause 140: Offences in connection with information requirements

316.     It is an offence for any person to fail to provide information in response to a demand from OFCOM under clause 131 or 132 and any such person shall be liable to a fine. However, subsection (2) makes provision for a defence where it is not possible for the recipient of a notice to provide the information within the period specified by OFCOM but the recipient has taken all reasonable steps to provide the information after that period. However, no proceedings for this offence may be brought in respect of failures for which OFCOM have imposed a financial penalty under clause 135.

317.     It is also an offence intentionally or recklessly to provide OFCOM with any false information in response to a request under clause 131 or 132 and a person guilty of this offence is liable to a fine and/or imprisonment.

Clause 141: Statement of policy on information gathering

318.     This clause places OFCOM under a duty to publish and keep up-to-date a statement of policy on how they will use their information-gathering powers under clauses 131 and 132 and how they will use any information obtained in exercise of those powers. When exercising their information-gathering powers under clauses 131 to 140, OFCOM must have regard to their published policy statement.

Clause 142: Provision of information by OFCOM

319.     This clause places OFCOM under a duty to respond fully, within one week, (unless they have already conveyed the requested information) to any request made to them for information about any of the following:

  • whether or not the person making the request is required under clause 29 to notify OFCOM in advance of his intention to provide a network, service or associated facility;

  • whether a notification submitted by that person under clause 29 is satisfactory;

  • that person's rights, in order to allow him to negotiate his right to network access; or

  • what is required of that person under clause 102 in order to make an application in respect of the electronic communications code.

This clause implements Article 9 of the Authorisation Directive.

Clause 143: Repeal of provisions of Telecommunications Act 1984

320.     This clause repeals certain sections of the Telecommunications Act 1984. One of the principal effects of these repeals will be to abolish the current requirement for persons running telecommunications systems to hold individual or class licences.

Sections 5 to 8 of the Telecommunications Act 1984 make it a criminal offence to run a telecommunications system without a licence and set out the powers of the Secretary of State and the Director General of Telecommunications to grant licences. Section 9 allows the Secretary of State to designate certain telecommunications systems as "public telecommunications systems". This designation confers additional rights and imposes additional duties on the licensee. Sections 10 and 11 relate to the telecommunications code (see the notes on clause 102). Sections 12 to 15 set out the circumstances in which the Director General of Telecommunications may modify the conditions of telecommunications licences. Sections 16 to 19 deal with the powers of the Director General to enforce compliance with licence conditions. Finally, sections 27A to 27L make provision for standards of performance and service to customers in the telecommunications industry and for procedures for dealing with complaints and billing disputes. These sections also govern the terms upon which deposits may be required from customers, and the circumstances in which operators may disconnect customers.

321.     As a result of the abolition of telecommunications licensing it is necessary to make certain savings and transitional provision. These are set out in paragraphs 3 and 6 to 9 of Schedule 18 (transitional provisions).

322.     Paragraphs 6 and 7 deal with the saving of certain licence conditions relating to significant market power, universal service and accounting. Paragraph 8 makes provision in respect of the payment of licence fees and provides that any licence fee already paid at the point when the licences are abolished should, in so far as it relates to a period of a licence which has not yet expired, be off-set against any administrative charge due under clause 34 and then where there is a remainder refunded to the licensee.

323.     Paragraph 9 enables OFCOM to enforce the licence conditions saved in paragraphs 6 and 7 and any liabilities under paragraph 8 previously exercisable by the Director General of Telecommunications under the Telecommunications Act 1984.

324.      Paragraph 10 provides that the right to terminate an agreement entered into for the purposes of a condition of a licence granted under section 7 of the Telecommunications Act 1984, which entitles a party to it to terminate the agreement if he or another party ceases to be a Schedule 2 public operator, is not to be exercisable by reason of the coming into force of provisions of the Bill providing that corresponding general conditions, access-related conditions or a provision made by an SMP condition are imposed on one or both of the parties to the agreement.

325.     Schedule 2 public operator has the same meaning as in Schedule 1 to the Telecommunications (Licence Modifications) (Standard Schedules) Regulations 1999 (S.I. 1999/2450).

Clause 144: Powers of local authorities in connection with networks

326.     This clause replaces section 2 of the Telegraph Act 1899 and permits local authorities in England, Wales and Scotland to borrow money to provide public electronic communications networks or services, including where those networks or services extend outside their local authority areas.

 
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Prepared: 20 November 2002