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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. | 5 |
(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 | 10 |
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 | 15 |
(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— | 20 |
(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 | 25 |
(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 | 30 |
(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 | 35 |
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, | 40 |
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. | |
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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 | 5 |
(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; | 10 |
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 | 15 |
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 | 20 |
(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). | 25 |
(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 | 30 |
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 | 35 |
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 | 40 |
(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— | 45 |
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(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. | 5 |
(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. | 10 |
(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 | 15 |
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 | 20 |
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 | 25 |
(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 | 30 |
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. | 35 |
(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 | 40 |
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 | 45 |
suspension or restriction by reference to which the application of the code was | |
suspended under subsection (2). | |
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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 | 5 |
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; | 10 |
(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 | 15 |
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— | 20 |
(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 | 25 |
(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. | 30 |
(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 | 35 |
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 | 40 |
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— | 45 |
(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 | 5 |
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. | 10 |
(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 | 15 |
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. | 20 |
(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); | 25 |
(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— | 30 |
(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. | 35 |
(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 | 40 |
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— | |
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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 | 15 |
(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 | 20 |
(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— | 25 |
(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— | 30 |
(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; | 35 |
(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 | 40 |
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 | 45 |
under the scheme as are specified in the scheme, or are of a description | |
so specified, to be referred to, and determined by, OFCOM. | |
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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 | 5 |
(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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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; | 30 |
(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— | 35 |
(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 | 40 |
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; | 45 |
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