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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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           (b)           that he has not, during the period allowed under section 106, taken all

such steps as they consider appropriate—

                  (i)                 for complying with that requirement; and

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

that requirement.

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

following requirements on the notified provider—

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

requirement as may be specified in the notification;

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

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notified contravention as may be so specified.

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

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

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

and

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           (b)           must fix a reasonable period for the making of the payment required by

the notification.

     (5)    It shall be the duty of a person to whom an enforcement notification has been

given to comply with it.

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

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           (a)           for an injunction;

           (b)           for specific performance of a statutory duty under section 45 of the

Court of Session Act 1988 (c. 36); or

           (c)           for any other appropriate remedy or relief.

 108   Penalties for contravention of code restrictions

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     (1)    This section applies (in addition to section 107) where—

           (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

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

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

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

requirement specified in the notification under section 106; and

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

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steps as they consider appropriate—

                  (i)                 for complying with the notified requirement; and

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

that requirement.

     (3)    Where a notification under section 106 relates to more than one contravention,

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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 under this section in respect of the period of

contravention specified in the notification.

 

 

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

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     (5)    OFCOM may also impose a penalty on the notified provider if he has

contravened, or is contravening, a requirement of an enforcement notification.

     (6)    The amount of a penalty imposed under this section is to be such amount not

exceeding £10,000 as OFCOM determine to be—

           (a)           appropriate; and

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

     (7)    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 requirements

contraventions of which have been notified to him under section 106;

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and

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

contraventions.

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

           (a)           within one week of making their decision to impose the penalty, notify

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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.

     (9)    A penalty imposed under this section—

           (a)           must be paid to OFCOM; and

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           (b)           if not paid within the period fixed by them, is to be recoverable by them

accordingly.

     (10)   The Secretary of State may by order amend this section so as to substitute a

different maximum penalty for the maximum penalty for the time being

specified in subsection (6).

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     (11)   No order is to be made containing provision authorised by subsection (10)

unless a draft of the order has been laid before Parliament and approved by a

resolution of each House.

 109   Suspension of application of code

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

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in any person’s case if they are satisfied—

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

requirements to pay administrative charges fixed under section 34

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

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

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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 an attempt, by the imposition of penalties under section 37, to

secure such compliance has failed; and

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           (d)           that the suspension of the application of the code is appropriate and

proportionate to the seriousness (when repeated as they have been) of

the contraventions.

     (2)    OFCOM may, to the extent specified in subsection (3), suspend the application

in that person’s case of the electronic communications code if—

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

    102

 

           (a)           the electronic communications code has been applied by a direction

under section 102 in any person’s case; and

           (b)           OFCOM give a direction under section 38, 96, 128 or 136 for the

suspension or restriction of that person’s entitlement to provide an

electronic communications network, or a part of such a network.

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     (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.

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     (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 102 in any person’s case; and

           (b)           that person is a person in whose case there have been repeated and

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serious contraventions of requirements imposed by virtue of any

restrictions or conditions under section 105.

     (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

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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

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           (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

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case must be by a further direction given to that person by OFCOM under

section 102.

     (7)    The statement required by section 103(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.

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     (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

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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

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suspension or restriction by reference to which the application of the code was

suspended under subsection (2).

 

 

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

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     (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

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communications code does not, except so far as otherwise provided by a

scheme contained in an order under section 113

           (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;

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           (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 38 applies for the purposes of subsection (1) as it

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applies for the purposes of that section.

 110   Procedure for directions under s. 109

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

109(4) suspending the application of the electronic communications code in the

case of any person (“the operator”) unless they have—

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           (a)           notified the operator of the proposed suspension and of the steps (if

any) that they are proposing to take under section 113;

           (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

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

period allowed by them for the operator 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.

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     (3)    As soon as practicable after giving a direction under section 109 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 113 in connection with the suspension; and

           (b)           proposing steps for remedying the situation that has given rise to the

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situation.

     (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 109, for the

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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—

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

security;

 

 

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

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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.

 111   Modification and revocation of application of code

     (1)    OFCOM may at any time modify the terms on which, by virtue of section

102(5), the code is applied in a person’s case.

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     (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

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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 102 to the person in whose case the electronic communications

code has been applied by the direction being modified or revoked.

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     (5)    The matters required by section 103(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

102(5);

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           (b)           a statement of their proposal to revoke the direction applying the code.

 112   Notification of cessation by person to whom code applies

     (1)    This section applies where, by virtue of a direction under section 102, the

electronic communications code applies in any person’s case for the purposes

of the provision by him of—

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           (a)           an electronic communications network which is not of a description

designated for the purposes of section 29; or

           (b)           such a system of conduits as is mentioned in section 102(4)(b).

     (2)    If that person ceases to provide that network or conduit system, he must notify

OFCOM of that fact.

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     (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

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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—

 

 

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

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           (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—

5

           (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

10

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.

 113   Transitional schemes on cessation of application of code

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     (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

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           (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—

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           (a)           the suspension under section 109 of the application of the code in the

former operator’s case;

           (b)           the revocation or modification under section 111 of the direction

applying the code in his case.

     (3)    A scheme contained in an order under this section may, in particular—

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           (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;

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           (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

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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

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under the scheme as are specified in the scheme, or are of a description

so specified, to be referred to, and determined by, OFCOM.

 

 

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

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     (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

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           (c)            an obligation to pay the expenses of any such removal or restoration.

     (5)    Sections 106 to 108 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 105.

     (6)    Section 392 applies to the power of OFCOM to make an order under this

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section.

 114   Compulsory acquisition of land etc.

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

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such a provider) shall have effect.

 115   Power to give assistance in relation to certain proceedings

     (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

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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

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a direction under section 102; 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;

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           (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—

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           (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

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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;

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