(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 contraventions are not contraventions relating only to charges
in respect of the application to the contravening provider of SMP
(c) that the bringing of proceedings for the recovery of the amounts
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;
(d) that an attempt, by the imposition of penalties under section 37, to
secure such compliance has failed; and
(e) that the giving of the direction is appropriate and proportionate to the
seriousness (when repeated as they have been) of the contraventions.
(2) A direction under this section is—
(a) a direction that the entitlement of the contravening provider to provide
electronic communications networks or electronic communications
services, or to make associated facilities available, is suspended (either
generally or in relation to particular networks, services or facilities); or
(b) a direction that that entitlement is restricted in the respects set out in the
(3) A direction under this section—
(a) must specify the networks, services and facilities to which it relates; and
(b) except so far as it otherwise provides, takes effect for an indefinite
period beginning with the time at which it is notified to the person to
whom it is given.
(4) A direction under this section—
(a) in providing for the effect of a suspension or restriction to be postponed
may provide for it to take effect only at a time determined by or in
accordance with the terms of the direction; and
(b) in connection with the suspension or restriction contained in the
direction or with the postponement of its effect, may impose such
conditions on the contravening provider as appear to OFCOM to be
appropriate for the purpose of protecting that provider’s customers.
(5) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the
contravening provider’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have
been put in consequence of the direction.
(6) OFCOM are not to give a direction under this section unless they have—
(a) notified the contravening provider of the proposed direction and of the
conditions (if any) which they are proposing to impose by that
(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 to take
advantage of that opportunity.
(7) That period must be one ending not less than one month after the day of the
giving of the notification.
(8) If OFCOM consider it appropriate to do so (whether or not in consequence of
any representations or proposals made to them), they may revoke a direction
under this section, or modify its conditions—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such networks, services or facilities, or
parts of a network, service or facility, as they may determine.
(9) For the purposes of this section there are repeated contraventions by a person
of requirements to pay administrative charges to the extent that—
(a) in the case of a previous notification given to that person under section
36, OFCOM have determined for the purposes of section 37(2) that such
a contravention did occur; and
(b) in the period of twelve months following the day of the making of that
determination, one or more further notifications have been given to
that person in respect of the same or different failures to pay
39 Enforcement of directions under s. 38
(1) A person is guilty of an offence if he provides an electronic communications
network or electronic communications service, or makes available any
(a) while his entitlement to do so is suspended by a direction under section
(b) in contravention of a restriction contained in such a direction.
(2) A person guilty of an offence under subsection (1) shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory
(b) on conviction on indictment, to a fine.
(3) The duty of a person to comply with a condition of a direction under section 38
shall be a duty owed to every person who may be affected by a contravention
of the condition.
(4) Where a duty is owed by virtue of subsection (3) to a person—
(a) a breach of the duty that causes that person to sustain loss or damage,
(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
(ii) is done wholly or partly for achieving that result,
shall be actionable at the suit or instance of that person.
(5) In proceedings brought against a person by virtue of subsection (4)(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 in question.
(6) Sections 90 to 94 apply in relation to a contravention of conditions imposed by
a direction under section 38 as they apply in relation to a contravention of
conditions set under section 41.
Register of providers required to notify or to pay charges
40 Duty of OFCOM to keep publicly accessible register
(1) It shall be the duty of OFCOM to establish and maintain a register for the
purposes of section 29.
(2) OFCOM must record in the register—
(a) every designation by them for the purposes of section 29 or 34;
(b) every withdrawal by them of such a designation;
(c) every notification given to them under section 29; and
(d) every notification treated as given to them under that section by a
transitional provision made under subsection (12) of that section.
(3) Information recorded in the register must be so recorded in such manner as
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
(b) the fees that must be paid for, or in connection with, an inspection of
(5) The publication of a notification under subsection (4) must be 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—
(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).
Conditions of entitlement to provide network or service etc.
41 Power of OFCOM to set conditions
(1) OFCOM shall have the power to set conditions under this section binding the
persons to whom they are applied in accordance with section 42.
(2) A condition set by OFCOM under this section must be either—
(a) a general condition; or
(b) a condition of one of the following descriptions—
(i) a universal service condition;
(ii) an access-related condition;
(iii) a privileged supplier condition;
(iv) a significant market power condition (an “SMP condition”).
(3) A general condition is a condition which contains only provisions authorised
or required by one or more of sections 47, 48, 53, 54 or 60.
(4) A universal service condition is a condition which contains only provisions
authorised or required by section 63.
(5) An access-related condition is a condition which contains only provisions
authorised by section 69.
(6) A privileged supplier condition is a condition which contains only the
provision required by section 73.
(7) An SMP condition is either—
(a) an SMP services condition; or
(b) an SMP apparatus condition.
(8) An SMP services condition is a condition which contains only provisions
(a) are authorised or required by one or more of sections 83 to 88; or
(b) in the case of a condition applying to a person falling within section
42(8)(b), correspond to provision authorised or required by one or more
of sections 83 to 85.
(9) An SMP apparatus condition is a condition containing only provisions
authorised by section 89.
(10) OFCOM’s power to set a condition under this section making provision
authorised or required by this Chapter includes each of the following—
(a) power to impose a requirement on the person or persons to whom the
condition is applied to comply with such directions with respect to the
matters to which the condition relates as may be given from time to
time by OFCOM or by another person specified in the condition;
(b) power to impose an obligation with respect to those matters that is
framed by reference to, or is conditional upon, the giving of a consent
or of an approval, or on the making of a recommendation, by OFCOM
or by another person so specified;
(c) power, in making provision with respect to those matters, to require or
authorise the determination of matters in accordance with the
provision made by the condition;
(d) power, for the purposes of provision made by virtue of any of the
preceding paragraphs, to confer a discretion exercisable from time to
time by OFCOM or by another person specified in the condition or
determined in accordance with provision contained in it;
(e) power (subject to section 47(3)) to set different conditions for different
cases (including different conditions in relation to different parts of the
United Kingdom); and
(f) power to revoke or modify the conditions for the time being in force.
(11) The directions that may be authorised by virtue of subsection (10) do not
include directions withdrawing, suspending or restricting a person’s
(a) to provide, in whole or in part, any electronic communications network
or electronic communications service; or
(b) to make available, in whole or in part, any associated facilities.
42 Persons to whom conditions may apply
(1) A condition set under section 41 is not to be applied to a person except in
accordance with the following provisions of this section.
(2) A general condition may be applied generally—
(a) to every person providing an electronic communications network or
electronic communications service; or
(b) to every person providing such a network or service of a particular
description specified in the condition.
(3) A universal service condition, access-related condition, privileged supplier
condition or SMP condition may be applied to a particular person specified in
(4) A privileged supplier condition may also be applied generally—
(a) to every person to whom such a condition is required to apply under
section 73; or
(b) to every such person who is of a particular description specified in the
(5) The particular person to whom a universal service condition is applied—
(a) except in the case of a condition relating to matters mentioned in
subsection (3) of section 62, must be a communications provider
designated in accordance with regulations under that section; and
(b) in that excepted case, must be a communications provider so
designated or a person who is not such a provider but who is so
designated for the purposes only of conditions relating to those
(6) The particular person to whom an access-related condition is applied—
(a) in the case of a condition falling within section 70(1), may be any person
(b) in any other case, must be a person who provides an electronic
communications network or makes associated facilities available.
(7) The particular person to whom an SMP services condition is applied must—
(a) be a communications provider or a person who makes associated
facilities available; and
(b) fall within subsection (8).
(8) A person falls within this subsection if—
(a) he is a person whom OFCOM have determined to be a person having
significant market power in a specific market for electronic
communications networks, electronic communications services or
associated facilities (a “services market”); or
(b) it appears to OFCOM that he is a person on whom it is necessary, for
the purpose of securing compliance with an international obligation of
the United Kingdom, to impose a condition containing provision that
corresponds to provision which, in the case of a person falling within
paragraph (a), must be made (or may be made) under any of sections
83 to 85.
(9) The particular person to whom an SMP apparatus condition is applied must
(a) a person who supplies electronic communications apparatus; and
(b) a person whom OFCOM have determined to be a person having
significant market power in a specific market for electronic
communications apparatus (an “apparatus market”).