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(b) 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 | 5 |
(b) in respect of annoyance, inconvenience or anxiety to which they have | |
been put in consequence of the direction. | |
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of | |
representations or proposals made to them), they may revoke a direction under | |
this section or modify its conditions— | 10 |
(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. | |
(7) For the purposes of this section there are repeated contraventions by a person | 15 |
of conditions set under section 42 to the extent that— | |
(a) in the case of a previous notification given to that person under section | |
section 91, OFCOM have determined for the purposes of section 92(2) | |
or 93(2) that such a contravention did occur; | |
(b) in the period of twelve months following the day of the making of that | 20 |
determination, one or more further notifications have been given to | |
that person in respect of contraventions of a condition set under section | |
42; and | |
(c) the previous notification and the subsequent ones all relate to | |
contraventions of the same condition (whether the same contravention | 25 |
or different contraventions). | |
98 Suspending apparatus supply for contraventions of conditions | |
(1) OFCOM may give a direction under this section to a person who supplies | |
electronic communications apparatus (“the contravening supplier”) if they are | |
satisfied— | 30 |
(a) that he is or has been in serious and repeated contravention of any SMP | |
apparatus conditions; | |
(b) that an attempt, by the imposition of penalties or the giving of | |
enforcement notifications under section 92 or both, to secure | |
compliance with the contravened conditions has failed; and | 35 |
(c) 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 to the contravening supplier to cease to act as a supplier of | |
electronic communications apparatus (either generally or in relation to | 40 |
apparatus of a particular description); or | |
(b) a direction imposing such restrictions as may be set out in the direction | |
on the supply by that supplier of electronic communications apparatus | |
(either generally or in relation to apparatus of a particular description). | |
(3) A direction under this section takes effect, except so far as it otherwise | 45 |
provides, for an indefinite period beginning with the time at which it is notified | |
to the person to whom it is given. | |
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(4) A direction under this section— | |
(a) may provide for a prohibition or restriction to take effect only at a time | |
determined by or in accordance with the terms of the direction; and | |
(b) in connection with a prohibition or restriction contained in the | |
direction or with the postponement of its effect, may impose such | 5 |
conditions on the contravening supplier as appear to OFCOM to be | |
appropriate for the purpose of protecting that supplier’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 supplier’s customers as a result of the direction; or | 10 |
(b) in respect of annoyance, inconvenience or anxiety to which they have | |
been put in consequence of the direction. | |
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of | |
representations or proposals made to them), they may at any time revoke a | |
direction under this section or modify its conditions— | 15 |
(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 apparatus or descriptions of | |
apparatus as they may determine. | |
(7) For the purposes of this section there are repeated contraventions by a person | 20 |
of SMP apparatus conditions to the extent that— | |
(a) in the case of a previous notification given to that person under section | |
91, OFCOM have determined for the purposes of section 92(2) or 93(2) | |
that such a contravention did occur; | |
(b) in the period of twelve months following the day of the making of that | 25 |
determination, one or more further notifications have been given to | |
that person in respect of contraventions of an SMP apparatus condition; | |
and | |
(c) the previous notification and the subsequent ones all relate to | |
contraventions of the same condition (whether the same contravention | 30 |
or different contraventions). | |
99 Procedure for directions under ss. 97 and 98 | |
(1) Except in an urgent case, OFCOM are not to give a direction under section 97 | |
or 98 unless they have— | |
(a) notified the contravening provider or contravening supplier of the | 35 |
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 | |
(c) considered every representation and proposal made to them during the | 40 |
period allowed by them for the contravening provider or the | |
contravening supplier 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. | |
(3) As soon as practicable after giving a direction under section 97 or 98 in an | 45 |
urgent case, OFCOM must, provide the contravening provider or contravening | |
supplier with an opportunity of— | |
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(a) making representations about the effect of the direction and of any of | |
its conditions; and | |
(b) proposing steps for remedying the 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 contraventions in | 5 |
question fall within subsection (5), to allow time, before giving a | |
direction under section 97 or 98, for the making and consideration of | |
representations; and | |
(b) decide for that reason to act in accordance with subsection (3), instead | |
of subsection (1). | 10 |
(5) The contraventions fall within this subsection if they have resulted in, or create | |
an immediate risk of— | |
(a) a serious threat to the safety of the public, to public health or to national | |
security; | |
(b) serious economic or operational problems for persons (apart from the | 15 |
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 | |
electronic communications networks, electronic communications | 20 |
services or associated facilities. | |
(6) In this section— | |
“contravening provider” has the same meaning as in section 97; and | |
“contravening supplier” has the same meaning as in section 98. | |
100 Enforcement of directions under ss. 95, 97 and 98 | 25 |
(1) A person is guilty of an offence if he provides an electronic communications | |
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 | |
95(4) or 97; or | 30 |
(b) in contravention of a restriction contained in such a direction. | |
(2) A person is guilty of an offence if he supplies electronic communications | |
apparatus— | |
(a) while prohibited from doing so by a direction under section 98; or | |
(b) in contravention of a restriction contained in such a direction. | 35 |
(3) A person guilty of an offence under this section shall be liable— | |
(a) on summary conviction, to a fine not exceeding the statutory | |
maximum; | |
(b) on conviction on indictment, to a fine. | |
(4) Sections 91 to 96 apply in relation to a contravention of conditions imposed by | 40 |
a direction under section 95, 97 or 98 as they apply in relation to a | |
contravention of conditions set under section 42. | |
101 Civil liability for breach of conditions or enforcement notification | |
(1) The obligation of a person to comply with— | |
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(a) the conditions set under section 42 which apply to him, | |
(b) requirements imposed on him by an enforcement notification under | |
section 92, and | |
(c) the conditions imposed by a direction under section 95 or 97, | |
shall be a duty owed to every person who may be affected by a contravention | 5 |
of the condition or requirement. | |
(2) Where a duty is owed by virtue of this section to a person— | |
(a) a breach of the duty that causes that person to sustain loss or damage, | |
and | |
(b) an act which— | 10 |
(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. | |
(3) In proceedings brought against a person by virtue of subsection (2)(a) it shall | 15 |
be a defence for that person to show that he took all reasonable steps and | |
exercised all due diligence to avoid contravening the condition or requirement | |
in question. | |
(4) The consent of OFCOM is required for the bringing of proceedings by virtue of | |
subsection (1)(a). | 20 |
(5) Where OFCOM give a consent for the purposes of subsection (4) subject to | |
conditions relating to the conduct of the proceedings, the proceedings are not | |
to be carried on by that person except in compliance with those conditions. | |
OFCOM’s duty to intervene on network access issues | |
102 Consideration and determination of network access questions | 25 |
(1) This section applies where— | |
(a) it appears to OFCOM that a network access question has arisen and | |
needs to be determined; and | |
(b) they consider that, for the purpose of determining that question, it | |
would be appropriate for them to exercise their powers under this | 30 |
Chapter to set, modify or revoke conditions falling within subsection | |
(2). | |
(2) Conditions falling within this subsection are— | |
(a) access-related conditions authorised by section 70(2) or (4); and | |
(b) SMP services conditions authorised by section 84. | 35 |
(3) Before considering whether, for the purpose of determining the question that | |
has arisen, to set, modify or revoke conditions falling within subsection (2), | |
OFCOM must publish a notification of their proposal to consider that matter. | |
(4) If, after considering that matter, OFCOM decide not to exercise their powers to | |
set, modify or revoke conditions falling within subsection (2), they must | 40 |
publish a notification of their decision. | |
(5) A notification under this section must be published in the manner that OFCOM | |
consider appropriate for bringing it to the attention of the persons who, in | |
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(5) OFCOM’s opinion, would be likely to be affected by action taken for | |
determining the network access question that appears to them to have arisen. | |
(6) In this section “network access question” means a question relating to network | |
access or the terms or conditions on which it is or or may be provided in a | |
particular case. | 5 |
Electronic communications code | |
103 Application of the electronic communications code | |
(1) In this Chapter “the electronic communications code” means the code set out | |
in Schedule 2 to the Telecommunications Act 1984 (c. 12). | |
(2) Schedule 3 (which amends Schedule 2 to the Telecommunications Act 1984 for | 10 |
the purpose of translating the telecommunications code into a code applicable | |
in the context of the new regulatory regime established by this Act) shall have | |
effect. | |
(3) The electronic communications code shall have effect— | |
(a) in the case of a person to whom it is applied by a direction given by | 15 |
OFCOM; and | |
(b) in the case of the Secretary of State or any Northern Ireland department | |
where the Secretary of State or that department is providing or | |
proposing to provide an electronic communications network. | |
(4) The only purposes for which the electronic communications code may be | 20 |
applied in a person’s case by a direction under this section are— | |
(a) the purposes of the provision by him of an electronic communications | |
network; or | |
(b) the purposes of the provision by him of a system of conduits which he | |
is making available, or proposing to make available, for use by | 25 |
providers of electronic communications networks for the purposes of | |
the provision by them of their networks. | |
(5) A direction applying the electronic communications code in any person’s case | |
may provide for that code to have effect in his case— | |
(a) in relation only to such places or localities as may be specified or | 30 |
described in the direction, | |
(b) for the purposes only of the provision of such electronic | |
communications network, or part of an electronic communications | |
network, as may be so specified or described; or | |
(c) for the purposes only of the provision of such conduit system, or part | 35 |
of a conduit system, as may be so specified or described. | |
(6) The Secretary of State may by order provide for the electronic communications | |
code to have effect for all purposes with a different amount substituted for the | |
amount for the time being specified in paragraph 16(3) of the code (minimum | |
compensation). | 40 |
(7) In this section “conduit” includes a tunnel, subway, tube or pipe. | |
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