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(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 | 5 |
apparatus conditions; | |
(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; | 10 |
(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— | 15 |
(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 | 20 |
direction. | |
(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 | 25 |
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 | 30 |
(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— | 35 |
(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— | 40 |
(a) notified the contravening provider of the proposed direction and of the | |
conditions (if any) which they are 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 | 45 |
(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. | |
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(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— | 5 |
(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 | 10 |
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 | 15 |
determination, one or more further notifications have been given to | |
that person in respect of the same or different failures to pay | |
administrative charges. | |
39 Enforcement of directions under s. 38 | |
(1) A person is guilty of an offence if he provides an electronic communications | 20 |
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 | |
38; or | |
(b) in contravention of a restriction contained in such a direction. | 25 |
(2) A person guilty of an offence under subsection (1) shall be liable— | |
(a) on summary conviction, to a fine not exceeding the statutory | |
maximum; | |
(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 | 30 |
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, | |
and | 35 |
(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. | 40 |
(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 | 45 |
conditions set under section 41. | |
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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— | 5 |
(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. | 10 |
(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 | |
inspection; and | 15 |
(b) the fees that must be paid for, or in connection with, an inspection of | |
the register. | |
(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. | 20 |
(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. | 25 |
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 | 30 |
(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”). | 35 |
(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 | 40 |
authorised by section 69. | |
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(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. | 5 |
(8) An SMP services condition is a condition which contains only provisions | |
which— | |
(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 | 10 |
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— | 15 |
(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 | 20 |
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 | 25 |
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; | 30 |
(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 | 35 |
include directions withdrawing, suspending or restricting a person’s | |
entitlement— | |
(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. | 40 |
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 | 45 |
electronic communications service; or | |
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(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 | |
the condition. | 5 |
(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 | |
condition. | 10 |
(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 | 15 |
designated or a person who is not such a provider but who is so | |
designated for the purposes only of conditions relating to those | |
matters. | |
(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 | 20 |
whatever; and | |
(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 | 25 |
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 | 30 |
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 | 35 |
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 | |
be— | 40 |
(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”). | |
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