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Communications Act 2003

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This version of this Act contains provisions that are prospective.

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There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations.

E+W+S+N.I.

Communications Act 2003

2003 CHAPTER 21

An Act to confer functions on the Office of Communications; to make provision about the regulation of the provision of electronic communications networks and services and of the use of the electro-magnetic spectrum; to make provision about the regulation of broadcasting and of the provision of television and radio services; to make provision about mergers involving newspaper and other media enterprises and, in that connection, to amend the Enterprise Act 2002; and for connected purposes.

[17th July 2003]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1 E+W+S+N.I.Functions of OFCOM

Prospective

Transferred and assigned functionsE+W+S+N.I.

1Functions and general powers of OFCOME+W+S+N.I.

(1)The Office of Communications (“OFCOM”) shall have the following functions—

(a)the functions transferred to OFCOM under section 2; and

(b)such other functions as may be conferred on OFCOM by or under any enactment (including this Act).

(2)OFCOM shall also have any functions in relation to telephone numbers that are conferred on them by the law of the Isle of Man or of any of the Channel Islands.

(3)OFCOM may do anything which appears to them to be incidental or conducive to the carrying out of their functions, including borrow money.

(4)OFCOM are not to borrow money except with the consent of the Secretary of State, or in accordance with a general authorisation given by him.

(5)OFCOM’s powers under subsection (3) include, in particular—

(a)power to undertake research and development work in connection with any matter in relation to which they have functions;

(b)power to promote the carrying out of such research and development by others, or otherwise to arrange for it to be carried out by others;

(c)power to institute and carry on criminal proceedings in England and Wales or Northern Ireland for an offence relating to a matter in relation to which they have functions; and

(d)power, in such cases and in such circumstances as they may think fit, to make payments (where no legal liability arises) to persons adversely affected by the carrying out by OFCOM of any of their functions.

(6)In exercise of their powers under subsection (3), OFCOM must establish and maintain separate offices in each of the following parts of the United Kingdom—

(a)England;

(b)Wales;

(c)Scotland; and

(d)Northern Ireland.

(7)Part 2 of the Deregulation and Contracting Out Act 1994 (c. 40) (contracting out) is to have effect in relation to the functions conferred on OFCOM by or under any enactment as if—

(a)OFCOM were an office holder within the meaning of that Part; and

(b)a power of OFCOM to make subordinate legislation were excluded from section 69 of that Act to the extent only that it is exercisable by statutory instrument.

(8)In this section “telephone numbers” has the same meaning as in Chapter 1 of Part 2.

2Transfer of functions of pre-commencement regulatorsE+W+S+N.I.

(1)As from such date as the Secretary of State may appoint for the coming into force of this section, the functions that are set out in Schedule 1 (functions of the Secretary of State and of the pre-commencement regulators) shall become functions of OFCOM in accordance with that Schedule.

(2)References in any enactment to a person who is a person from whom functions are transferred by virtue of this section are to have effect, so far as necessary for the purposes of the transfers, as references to OFCOM.

(3)The functions of OFCOM are to include the carrying out of the transferred functions, at times after the time when they become functions of OFCOM, in relation to anything occurring before that time.

(4)The provisions of this section have effect subject to—

(a)the modifications made by this Act of the enactments relating to the transferred functions; and

(b)any express transitional or consequential provisions made by or under this Act in relation to those enactments.

Prospective

General duties in carrying out functionsE+W+S+N.I.

3General duties of OFCOME+W+S+N.I.

(1)It shall be the principal duty of OFCOM, in carrying out their functions—

(a)to further the interests of citizens in relation to communications matters; and

(b)to further the interests of consumers in relevant markets, where appropriate by promoting competition.

(2)The things which, by virtue of subsection (1), OFCOM are required to secure in the carrying out of their functions include, in particular, each of the following—

(a)the optimal use for wireless telegraphy of the electro-magnetic spectrum;

(b)the availability throughout the United Kingdom of a wide range of electronic communications services;

(c)the availability throughout the United Kingdom of a wide range of television and radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests;

(d)the maintenance of a sufficient plurality of providers of different television and radio services;

(e)the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services;

(f)the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public and all other persons from both—

(i)unfair treatment in programmes included in such services; and

(ii)unwarranted infringements of privacy resulting from activities carried on for the purposes of such services.

(3)In performing their duties under subsection (1), OFCOM must have regard, in all cases, to—

(a)the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

(b)any other principles appearing to OFCOM to represent the best regulatory practice.

(4)OFCOM must also have regard, in performing those duties, to such of the following as appear to them to be relevant in the circumstances—

(a)the desirability of promoting the fulfilment of the purposes of public service television broadcasting in the United Kingdom;

(b)the desirability of promoting competition in relevant markets;

(c)the desirability of promoting and facilitating the development and use of effective forms of self-regulation;

(d)the desirability of encouraging investment and innovation in relevant markets;

(e)the desirability of encouraging the availability and use of high speed data transfer services throughout the United Kingdom;

(f)the different needs and interests, so far as the use of the electro-magnetic spectrum for wireless telegraphy is concerned, of all persons who may wish to make use of it;

(g)the need to secure that the application in the case of television and radio services of standards falling within subsection (2)(e) and (f) is in the manner that best guarantees an appropriate level of freedom of expression;

(h)the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection;

(i)the needs of persons with disabilities, of the elderly and of those on low incomes;

(j)the desirability of preventing crime and disorder;

(k)the opinions of consumers in relevant markets and of members of the public generally;

(l)the different interests of persons in the different parts of the United Kingdom, of the different ethnic communities within the United Kingdom and of persons living in rural and in urban areas;

(m)the extent to which, in the circumstances of the case, the furthering or securing of the matters mentioned in subsections (1) and (2) is reasonably practicable.

(5)In performing their duty under this section of furthering the interests of consumers, OFCOM must have regard, in particular, to the interests of those consumers in respect of choice, price, quality of service and value for money.

(6)Where it appears to OFCOM, in relation to the carrying out of any of the functions mentioned in section 4(1), that any of their general duties conflict with one or more of their duties under sections 4, 24 and 25, priority must be given to their duties under those sections.

(7)Where it appears to OFCOM that any of their general duties conflict with each other in a particular case, they must secure that the conflict is resolved in the manner they think best in the circumstances.

(8)Where OFCOM resolve a conflict in an important case between their duties under paragraphs (a) and (b) of subsection (1), they must publish a statement setting out—

(a)the nature of the conflict;

(b)the manner in which they have decided to resolve it; and

(c)the reasons for their decision to resolve it in that manner.

(9)Where OFCOM are required to publish a statement under subsection (8), they must—

(a)publish it as soon as possible after making their decision but not while they would (apart from a statutory requirement to publish) be subject to an obligation not to publish a matter that needs to be included in the statement; and

(b)so publish it in such manner as they consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters to which the decision relates.

(10)Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (OFCOM’s annual report) for a financial year must contain a summary of the manner in which, in that year, OFCOM resolved conflicts arising in important cases between their general duties.

(11)A case is an important case for the purposes of subsection (8) or (10) only if—

(a)it involved one or more of the matters mentioned in subsection (12); or

(b)it otherwise appears to OFCOM to have been of unusual importance.

(12)Those matters are—

(a)a major change in the activities carried on by OFCOM;

(b)matters likely to have a significant impact on persons carrying on businesses in any of the relevant markets; or

(c)matters likely to have a significant impact on the general public in the United Kingdom or in a part of the United Kingdom.

(13)This section is subject to sections 370(11) and 371(11) of this Act and to section 119A(4) of the Enterprise Act 2002 (c. 40) (which applies to functions conferred on OFCOM by Chapter 2 of Part 5 of this Act).

(14)In this section—

  • citizens” means all members of the public in the United Kingdom;

  • communications matters” means the matters in relation to which OFCOM have functions;

  • general duties”, in relation to OFCOM, means—

    (a)

    their duties under subsections (1) to (5); and

    (b)

    the duty which, under section 107(5), is to rank equally for the purposes of subsections (6) and (7) with their duties under this section;

  • relevant markets” means markets for any of the services, facilities, apparatus or directories in relation to which OFCOM have functions.

4Duties for the purpose of fulfilling Community obligationsE+W+S+N.I.

(1)This section applies to the following functions of OFCOM—

(a)their functions under Chapter 1 of Part 2;

(b)their functions under the enactments relating to the management of the radio spectrum;

(c)their functions under Chapter 3 of Part 2 in relation to disputes referred to them under section 185;

(d)their functions under sections 24 and 25 so far as they relate to information required for purposes connected with matters in relation to which functions specified in this subsection are conferred on OFCOM; and

(e)their functions under section 26 so far as they are carried out for the purpose of making information available to persons mentioned in subsection (2)(a) to (c) of that section.

(2)It shall be the duty of OFCOM, in carrying out any of those functions, to act in accordance with the six Community requirements (which give effect, amongst other things, to the requirements of Article 8 of the Framework Directive and are to be read accordingly).

(3)The first Community requirement is a requirement to promote competition—

(a)in relation to the provision of electronic communications networks and electronic communications services;

(b)in relation to the provision and making available of services and facilities that are provided or made available in association with the provision of electronic communications networks or electronic communications services; and

(c)in relation to the supply of directories capable of being used in connection with the use of electronic communications networks or electronic communications services.

(4)The second Community requirement is a requirement to secure that OFCOM’s activities contribute to the development of the European internal market.

(5)The third Community requirement is a requirement to promote the interests of all persons who are citizens of the European Union (within the meaning of Article 17 of the Treaty establishing the European Community).

(6)The fourth Community requirement is a requirement to take account of the desirability of OFCOM’s carrying out their functions in a manner which, so far as practicable, does not favour—

(a)one form of electronic communications network, electronic communications service or associated facility; or

(b)one means of providing or making available such a network, service or facility,

over another.

(7)The fifth Community requirement is a requirement to encourage, to such extent as OFCOM consider appropriate for the purpose mentioned in subsection (8), the provision of network access and service interoperability.

(8)That purpose is the purpose of securing—

(a)efficiency and sustainable competition in the markets for electronic communications networks, electronic communications services and associated facilities; and

(b)the maximum benefit for the persons who are customers of communications providers and of persons who make such facilities available.

(9)The sixth Community requirement is a requirement to encourage such compliance with the standards mentioned in subsection (10) as is necessary for—

(a)facilitating service interoperability; and

(b)securing freedom of choice for the customers of communications providers.

(10)Those standards are—

(a)standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive;

(b)the standards and specifications from time to time adopted by—

(i)the European Committee for Standardisation;

(ii)the European Committee for Electrotechnical Standardisation; or

(iii)the European Telecommunications Standards Institute; and

(c)the international standards and recommendations from time to time adopted by—

(i)the International Telecommunication Union;

(ii)the International Organisation for Standardisation; or

(iii)the International Electrotechnical Committee.

(11)Where it appears to OFCOM that any of the Community requirements conflict with each other, they must secure that the conflict is resolved in the manner they think best in the circumstances.

(12)In this section—

  • the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services;

  • network access” and “service interoperability” each has the same meaning as in Chapter 1 of Part 2.

5Directions in respect of networks and spectrum functionsE+W+S+N.I.

(1)This section applies to the following functions of OFCOM—

(a)their functions under Part 2; and

(b)their functions under the enactments relating to the management of the radio spectrum that are not contained in that Part.

(2)It shall be the duty of OFCOM to carry out those functions in accordance with such general or specific directions as may be given to them by the Secretary of State.

(3)The Secretary of State’s power to give directions under this section shall be confined to a power to give directions for one or more of the following purposes—

(a)in the interests of national security;

(b)in the interests of relations with the government of a country or territory outside the United Kingdom;

(c)for the purpose of securing compliance with international obligations of the United Kingdom;

(d)in the interests of the safety of the public or of public health.

(4)The Secretary of State is not entitled by virtue of any provision of this section to direct OFCOM to suspend or restrict—

(a)a person’s entitlement to provide an electronic communications network or electronic communications service; or

(b)a person’s entitlement to make available associated facilities.

(5)The Secretary of State must publish a direction under this section in such manner as appears to him to be appropriate for bringing it to the attention of the persons who, in his opinion, are likely to be affected by it.

(6)The Secretary of State is not required by subsection (5) to publish a direction, and he may exclude matter from a direction he does publish, if he considers the publication of the direction or matter to be—

(a)against the interests of national security; or

(b)against the interests of relations with the government of a country or territory outside the United Kingdom.

(7)Subsection (4) does not affect the Secretary of State’s powers under section 132.

6Duties to review regulatory burdensE+W+S+N.I.

(1)OFCOM must keep the carrying out of their functions under review with a view to securing that regulation by OFCOM does not involve—

(a)the imposition of burdens which are unnecessary; or

(b)the maintenance of burdens which have become unnecessary.

(2)In reviewing their functions under this section it shall be the duty of OFCOM—

(a)to have regard to the extent to which the matters which they are required under section 3 to further or to secure are already furthered or secured, or are likely to be furthered or secured, by effective self-regulation; and

(b)in the light of that, to consider to what extent it would be appropriate to remove or reduce regulatory burdens imposed by OFCOM.

(3)In determining for the purposes of this section whether procedures for self-regulation are effective OFCOM must consider, in particular—

(a)whether those procedures are administered by a person who is sufficiently independent of the persons who may be subjected to the procedures; and

(b)whether adequate arrangements are in force for funding the activities of that person in relation to those procedures.

(4)OFCOM must, from time to time, publish a statement setting out how they propose, during the period for which the statement is made, to secure that regulation by OFCOM does not involve the imposition or maintenance of unnecessary burdens.

(5)The first statement to be published under this section—

(a)must be published as soon as practicable after the commencement of this section; and

(b)shall be a statement for the period of twelve months beginning with the day of its publication.

(6)A subsequent statement—

(a)must be published during the period to which the previous statement related; and

(b)must be a statement for the period of twelve months beginning with the end of the previous period.

(7)It shall be the duty of OFCOM, in carrying out their functions at times during a period for which a statement is in force under this section, to have regard to that statement.

(8)OFCOM may, if they think fit, revise a statement under this section at any time before or during the period for which it is made.

(9)Where OFCOM revise a statement, they must publish the revision as soon as practicable.

(10)The publication under this section of a statement, or of a revision of a statement, 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 the matters to which it relates.

7Duty to carry out impact assessmentsE+W+S+N.I.

(1)This section applies where—

(a)OFCOM are proposing to do anything for the purposes of, or in connection with, the carrying out of their functions; and

(b)it appears to them that the proposal is important;

but this section does not apply if it appears to OFCOM that the urgency of the matter makes it impracticable or inappropriate for them to comply with the requirements of this section.

(2)A proposal is important for the purposes of this section only if its implementation would be likely to do one or more of the following—

(a)to involve a major change in the activities carried on by OFCOM;

(b)to have a significant impact on persons carrying on businesses in the markets for any of the services, facilities, apparatus or directories in relation to which OFCOM have functions; or

(c)to have a significant impact on the general public in the United Kingdom or in a part of the United Kingdom.

(3)Before implementing their proposal, OFCOM must either—

(a)carry out and publish an assessment of the likely impact of implementing the proposal; or

(b)publish a statement setting out their reasons for thinking that it is unnecessary for them to carry out an assessment.

(4)An assessment under subsection (3)(a) must set out how, in OFCOM’s opinion, the performance of their general duties (within the meaning of section 3) is secured or furthered by or in relation to what they propose.

(5)An assessment carried out under this section—

(a)may take such form, and

(b)must relate to such matters,

as OFCOM consider appropriate.

(6)In determining the matters to which an assessment under this section should relate, OFCOM must have regard to such general guidance relating to the carrying out of impact assessments as they consider appropriate.

(7)Where OFCOM publish an assessment under this section—

(a)they must provide an opportunity of making representations to them about their proposal to members of the public and other persons who, in OFCOM’s opinion, are likely to be affected to a significant extent by its implementation;

(b)the published assessment must be accompanied by a statement setting out how representations may be made; and

(c)OFCOM are not to implement their proposal unless the period for making representations about it has expired and they have considered all the representations that were made in that period.

(8)Where OFCOM are required (apart from this section)—

(a)to consult about a proposal to which this section applies, or

(b)to give a person an opportunity of making representations about it,

the requirements of this section are in addition to, but may be performed contemporaneously with, the other requirements.

(9)Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (OFCOM’s annual report) must set out—

(a)a list of the assessments under this section carried out during the financial year to which the report relates; and

(b)a summary of the decisions taken during that year in relation to proposals to which assessments carried out in that year or previous financial years relate.

(10)The publication of anything under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected if their proposal is implemented.

8Duty to publish and meet promptness standardsE+W+S+N.I.

(1)It shall be the duty of OFCOM to publish a statement setting out the standards they are proposing to meet with respect to promptness in—

(a)the carrying out of their different functions; and

(b)the transaction of business for purposes connected with the carrying out of those functions.

(2)This section does not require standards to be set out with respect to anything which (apart from this section) is required to be done by a time, or within a period, provided for by or under an enactment.

(3)OFCOM may, if they think fit, at any time revise the statement for the time being in force under this section.

(4)It shall be the duty of OFCOM—

(a)in carrying out their functions, and

(b)in transacting business for purposes connected with the carrying out of their functions,

to have regard to the statement for the time being in force under this section.

(5)Where OFCOM revise a statement under this section, they must publish the revision as soon as practicable.

(6)The publication under this section of a statement, or of a revision of a statement, 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 the matters to which it relates.

(7)OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (annual report) for each financial year must contain a statement by OFCOM summarising the extent to which they have complied during that year with the standards set out under this section.

9Secretary of State’s powers in relation to promptness standardsE+W+S+N.I.

(1)Where the Secretary of State considers that the statement published by OFCOM under section 8 is not adequate for securing that they meet satisfactory promptness standards, he may give them a notification to that effect.

(2)If the period of three months after the date of the giving of a notification under subsection (1) expires without OFCOM taking steps which the Secretary of State is satisfied remedy the situation, he may give them a direction under this section.

(3)A direction under this section is one requiring OFCOM to issue a new or revised statement under section 8 in accordance with the direction.

(4)Before giving a direction under this section, the Secretary of State must—

(a)give OFCOM an opportunity of making representations to him about his proposed direction; and

(b)have regard to any representations made to him by them.

(5)Where the Secretary of State gives a direction to OFCOM under this section, he must publish a copy of it in such manner as he considers appropriate for bringing it to the attention of persons who, in his opinion, are likely to be affected by OFCOM’s promptness standards.

(6)It shall be the duty of OFCOM to revise their statement under section 8 in accordance with any direction of the Secretary of State under this section.

(7)In this section “promptness standards” means standards of promptness in—

(a)the carrying out by OFCOM of their different functions; and

(b)the transaction by them of business for purposes connected with the carrying out of those functions.

(8)No notification is to be given under subsection (1) at any time in the period of twelve months beginning with the commencement of section 8.

Prospective

Accessible domestic communications apparatusE+W+S+N.I.

10Duty to encourage availability of easily usable apparatusE+W+S+N.I.

(1)It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated to encourage others to secure—

(a)that domestic electronic communications apparatus is developed which is capable of being used with ease, and without modification, by the widest possible range of individuals (including those with disabilities); and

(b)that domestic electronic communications apparatus which is capable of being so used is as widely available as possible for acquisition by those wishing to use it.

(2)It shall be the duty of OFCOM from time to time to review whether they need to take further steps, or to enter into further arrangements, for the purpose of performing their duty under this section.

(3)OFCOM must not do anything under this section that would be inconsistent with the Community requirements set out in section 4.

(4)In this section “electronic communications apparatus” means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals that are transmitted by means of an electronic communications network.

(5)For the purposes of this section electronic communications apparatus is domestic electronic communications apparatus except to the extent that it is designed or adapted for use solely for the purposes of, or in connection with, a business.

(6)In this section “signal” includes—

(a)anything comprising speech, music, sounds, visual images or communications or data of any description; and

(b)signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus.

Prospective

Media literacyE+W+S+N.I.

11Duty to promote media literacyE+W+S+N.I.

(1)It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated—

(a)to bring about, or to encourage others to bring about, a better public understanding of the nature and characteristics of material published by means of the electronic media;

(b)to bring about, or to encourage others to bring about, a better public awareness and understanding of the processes by which such material is selected, or made available, for publication by such means;

(c)to bring about, or to encourage others to bring about, the development of a better public awareness of the available systems by which access to material published by means of the electronic media is or can be regulated;

(d)to bring about, or to encourage others to bring about, the development of a better public awareness of the available systems by which persons to whom such material is made available may control what is received and of the uses to which such systems may be put; and

(e)to encourage the development and use of technologies and systems for regulating access to such material, and for facilitating control over what material is received, that are both effective and easy to use.

(2)In this section, references to the publication of anything by means of the electronic media are references to its being—

(a)broadcast so as to be available for reception by members of the public or of a section of the public; or

(b)distributed by means of an electronic communications network to members of the public or of a section of the public.

Prospective

OFCOM’s Content BoardE+W+S+N.I.

12Duty to establish and maintain Content BoardE+W+S+N.I.

(1)It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM) to establish and maintain a committee to be known as “the Content Board”.

(2)The Content Board shall consist of—

(a)a chairman appointed by OFCOM; and

(b)such number of other members appointed by OFCOM as OFCOM think fit.

(3)The chairman of the Content Board must be a non-executive member of OFCOM but is not to be the chairman of OFCOM.

(4)At least one of the other members of the Content Board must also be a non-executive member of OFCOM other than the chairman of OFCOM.

(5)In appointing persons to be members of the Content Board, OFCOM must secure that, for each of the following parts of the United Kingdom—

(a)England,

(b)Scotland,

(c)Wales, and

(d)Northern Ireland,

there is a different member of the Board capable of representing the interests and opinions of persons living in that part of the United Kingdom.

(6)In appointing a person for the purposes of subsection (5)(a), OFCOM must have regard to the desirability of ensuring that the person appointed is able to represent the interests and opinions of persons living in all the different regions of England.

(7)The validity of any proceedings of the Content Board shall not be affected by any failure by OFCOM to comply with subsection (5) or (6).

(8)It shall be the duty of OFCOM when appointing members of the Content Board to secure, so far as practicable, that a majority of the members of the Board (counting the chairman) consists of persons who are neither members nor employees of OFCOM.

(9)The following shall be disqualified from being the chairman or another member of the Content Board—

(a)governors and employees of the BBC;

(b)members and employees of the Welsh Authority; and

(c)members and employees of C4C.

(10)Before appointing a person to be the chairman or another member of the Content Board, OFCOM must satisfy themselves that he will not have any financial or other interest which would be likely prejudicially to affect the carrying out by him of any of his functions as chairman or member of the Content Board.

(11)A person is not to be taken to have such an interest by reason only that he is or will be a member or employee of OFCOM.

(12)Every person whom OFCOM propose to appoint to be the chairman or another member of the Content Board, shall, whenever requested to do so by OFCOM, furnish OFCOM with any information they consider necessary for the performance of their duty under subsection (10).

(13)In addition to paying remuneration and expenses under paragraph 14(4) of the Schedule to the Office of Communications Act 2002 (c. 11), OFCOM may—

(a)pay to, or in respect of, any member of the Content Board who is not a member or employee of OFCOM, such sums by way of pensions, allowances or gratuities as OFCOM may determine; and

(b)provide for the making of such payments to or in respect of any such member of the Content Board.

(14)In subsection (13)—

(a)the reference to pensions, allowances and gratuities includes a reference to similar benefits payable on death or retirement; and

(b)the reference to providing for the payment of a pension, allowance or gratuity to, or in respect of, a person includes a reference to the making of payments towards the provision or payment of a pension, allowance or gratuity, or of any such similar benefits, to or in respect of that person.

13Functions of the Content BoardE+W+S+N.I.

(1)The Content Board shall have such functions as OFCOM, in exercise of their powers under the Schedule to the Office of Communications Act 2002 (c. 11), may confer on the Board.

(2)The functions conferred on the Board must include, to such extent and subject to such restrictions and approvals as OFCOM may determine, the carrying out on OFCOM’s behalf of—

(a)functions in relation to matters that concern the contents of anything which is or may be broadcast or otherwise transmitted by means of electronic communications networks; and

(b)functions in relation to the promotion of public understanding or awareness of matters relating to the publication of matter by means of the electronic media.

(3)In determining what functions to confer on the Content Board, OFCOM must have particular regard to the desirability of securing that the Board have at least a significant influence on decisions which—

(a)relate to the matters mentioned in subsection (2); and

(b)involve the consideration of different interests and other factors as respects different parts of the United Kingdom.

(4)It shall be the duty of the Content Board to ensure, in relation to—

(a)the carrying out of OFCOM’s functions under Part 3 of this Act, Parts 1 and 3 of the 1990 Act and Parts 1 and 2 of the 1996 Act,

(b)the matters with respect to which functions are conferred on the Board, and

(c)such other matters mentioned in subsection (2) as OFCOM may determine,

that OFCOM are aware of the different interests and other factors which, in the Board’s opinion, need to be taken into account as respects the different parts of the United Kingdom in relation to the carrying out of OFCOM’s functions.

(5)The power of OFCOM to determine the Content Board’s functions includes power to authorise the Board to establish committees and panels to advise the Board on the carrying out of some or all of the Board’s functions.

(6)The power of OFCOM to authorise the establishment of a committee or panel by the Content Board includes power to authorise the establishment of a committee or panel that includes persons who are not members of the Board.

(7)In this section references to the publication of anything by means of the electronic media are references to its being—

(a)broadcast so as to be available for reception by members of the public or of a section of the public; or

(b)distributed by means of an electronic communications network to members of the public or of a section of the public.

Prospective

Functions for the protection of consumersE+W+S+N.I.

14Consumer researchE+W+S+N.I.

(1)OFCOM must make arrangements for ascertaining—

(a)the state of public opinion from time to time about the manner in which electronic communications networks and electronic communications services are provided;

(b)the state of public opinion from time to time about the manner in which associated facilities are made available;

(c)the experiences of consumers in the markets for electronic communications services and associated facilities, in relation to the manner in which electronic communications networks and electronic communications services are provided and associated facilities made available;

(d)the experiences of such consumers in relation to the handling, by communications providers and by persons making such facilities available, of complaints made to them by such consumers;

(e)the experiences of such consumers in relation to the resolution of disputes with communications providers or with persons making associated facilities available; and

(f)the interests and experiences of such consumers in relation to other matters that are incidental to, or are otherwise connected with, their experiences of the provision of electronic communications networks and electronic communications services or of the availability of associated facilities.

(2)The matters to which the arrangements must relate do not include the incidence or investigation of interference (within the meaning of the Wireless Telegraphy Act 1949 (c. 54)) with wireless telegraphy.

(3)The matters to which the arrangements must relate do not (except so far as authorised or required by subsections (4) to (6)) include public opinion with respect to—

(a)the contents of anything broadcast or otherwise published by means of an electronic communications network; or

(b)the experiences or interests of consumers in any market for electronic communications services with respect to anything so broadcast or published.

(4)OFCOM must make arrangements for ascertaining—

(a)the state of public opinion from time to time concerning programmes included in television and radio services;

(b)any effects of such programmes, or of other material published by means of the electronic media, on the attitudes or behaviour of persons who watch, listen to or receive the programmes or material; and

(c)so far as necessary for the purpose mentioned in subsection (5), the types of programmes that members of the public would like to see included in television and radio services.

(5)That purpose is the carrying out by OFCOM of their functions under Chapter 4 of Part 3 of this Act.

(6)OFCOM must make arrangements for the carrying out of research into the following—

(a)the matters mentioned in section 11(1);

(b)matters relating to, or connected with, the setting of standards under section 319 of this Act;

(c)matters relating to, or connected with, the observance of those standards by persons providing television and radio services;

(d)matters relating to, or connected with, the prevention of unjust or unfair treatment in programmes included in such services; and

(e)matters relating to, or connected with, the prevention of unwarranted infringements of privacy resulting from activities carried on for the purposes of such services.

(7)Arrangements made by OFCOM for the purposes of this section may include arrangements for the carrying out of research in one or more of the following ways—

(a)by members or employees of OFCOM;

(b)by the Content Board;

(c)in accordance with arrangements made by that Board;

(d)by persons who are neither members nor employees of OFCOM.

(8)In this section references to the publication of anything by means of the electronic media are references to its being—

(a)broadcast so as to be available for reception by members of the public or of a section of the public; or

(b)distributed by means of an electronic communications network to members of the public or of a section of the public.

(9)This section does not restrict OFCOM’s power to make any arrangements they consider to be incidental or conducive to the carrying out of any of their functions.

15Duty to publish and take account of researchE+W+S+N.I.

(1)It shall be the duty of OFCOM—

(a)to publish the results of any research carried out by them or on their behalf under section 14; and

(b)to consider and, to such extent as they think fit, to take account of the results of such research in the carrying out of their functions.

(2)OFCOM are not required under this section—

(a)to publish any matter that is confidential in accordance with subsection (3) or (4); or

(b)to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.

(3)A matter is confidential under this subsection if—

(a)it relates specifically to the affairs of a particular body; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(4)A matter is confidential under this subsection if—

(a)it relates to the private affairs of an individual; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(5)The publication of research under this section must be in such manner as OFCOM consider appropriate.

16Consumer consultationE+W+S+N.I.

(1)It shall be the duty of OFCOM to establish and maintain effective arrangements for consultation about the carrying out of their functions with—

(a)consumers in the markets for the services and facilities in relation to which OFCOM have functions;

(b)consumers in the markets for apparatus used in connection with any such services or facilities;

(c)consumers in the markets for directories capable of being used in connection with the use of an electronic communications network or electronic communications service.

(2)The arrangements must include the establishment and maintenance of a panel of persons (in this Act referred to as “the Consumer Panel”) with the function of advising both—

(a)OFCOM; and

(b)such other persons as the Panel think fit.

(3)The arrangements must secure that the matters about which the Consumer Panel are able to give advice include the interests of domestic and small business consumers in relation to the following matters—

(a)the provision of electronic communications networks;

(b)the provision and making available of the services and facilities mentioned in subsection (4);

(c)the supply of apparatus designed or adapted for use in connection with any such services or facilities;

(d)the supply of directories capable of being used in connection with the use of an electronic communications network or electronic communications service;

(e)the financial and other terms on which such services or facilities are provided or made available, or on which such apparatus or such a directory is supplied;

(f)standards of service, quality and safety for such services, facilities, apparatus and directories;

(g)the handling of complaints made by persons who are consumers in the markets for such services, facilities, apparatus or directories to the persons who provide the services or make the facilities available, or who are suppliers of the apparatus or directories;

(h)the resolution of disputes between such consumers and the persons who provide such services or make such facilities available, or who are suppliers of such apparatus or directories;

(i)the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

(j)the information about service standards and the rights of consumers that is made available by persons who provide or make available such services or facilities, or who are suppliers of such apparatus or directories;

(k)any other matter appearing to the Panel to be necessary for securing effective protection for persons who are consumers in the markets for any such services, facilities, apparatus or directories.

(4)Those services and facilities are—

(a)electronic communications services;

(b)associated facilities;

(c)directory enquiry facilities;

(d)a service consisting in the supply of information for use in responding to directory enquiries or of an electronic programme guide; and

(e)every service or facility not falling within any of the preceding paragraphs which is provided or made available to members of the public—

(i)by means of an electronic communications network; and

(ii)in pursuance of agreements entered into between the person by whom the service or facility is provided or made available and each of those members of the public.

(5)The matters about which the Consumer Panel are to be able to give advice do not include any matter that concerns the contents of anything which is or may be broadcast or otherwise transmitted by means of electronic communications networks.

(6)The arrangements made by OFCOM under this section must also secure that the Consumer Panel are able, in addition to giving advice on the matters mentioned in subsection (3), to do each of the following—

(a)at the request of OFCOM, to carry out research for OFCOM in relation to any of the matters in relation to which OFCOM have functions under section 14;

(b)to make arrangements for the carrying out of research into such other matters appearing to the Panel to be relevant to the carrying out of the Panel’s functions as they think fit;

(c)to give advice to OFCOM in relation to any matter referred to the Panel by OFCOM for advice;

(d)to publish such information as the Panel think fit about the advice they give, about the carrying out of the Panel’s other functions and about the results of research carried out by them or on their behalf.

(7)It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to—

(a)any advice given to OFCOM by the Consumer Panel; and

(b)any results notified to OFCOM of any research undertaken by that Panel.

(8)It shall also be the duty of OFCOM (subject to subsection (9))—

(a)to provide the Consumer Panel with all such information as, having regard, in particular, to the need to preserve commercial confidentiality, OFCOM consider appropriate to disclose to the Panel for the purpose of enabling the Panel to carry out their functions; and

(b)to provide the Panel with all such further information as the Panel may require.

(9)OFCOM are not required to provide information by virtue of subsection (8)(b) if, having regard to—

(a)the need to preserve commercial confidentiality, and

(b)any other matters that appear to OFCOM to be relevant,

it is reasonable for OFCOM to refuse to disclose it to the Panel.

(10)It shall be the duty of OFCOM, in the case of any advice or opinion received from and published by the Panel which OFCOM propose to disregard in whole or in part, or with which OFCOM disagree in whole or in part—

(a)to ensure that the Panel know OFCOM’s reasons for disregarding or disagreeing with the advice or opinion; and

(b)to ensure that those reasons are or have been published in such manner as OFCOM consider appropriate for bringing them to the attention of persons who are aware of the Panel’s advice or opinion.

(11)The Consumer Panel must—

(a)as soon as practicable after the end of the period of twelve months beginning with the commencement of this section, and

(b)as soon as practicable after the end of each subsequent period of twelve months,

prepare a report on the carrying out of their functions in that period.

(12)The Consumer Panel must publish each report—

(a)as soon as practicable after its preparation is complete; and

(b)in such manner as they consider appropriate.

(13)In this section—

  • domestic and small business consumer” means a person who—

    (a)

    is a consumer in the market for services or facilities mentioned in subsection (4) or for apparatus designed or adapted for use in connection with any such services or facilities; but

    (b)

    is neither—

    (i)

    a communications provider or a person who makes associated facilities available; nor

    (ii)

    a person who is a consumer in the market in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise);

  • electronic programme guide” means a service which consists of—

    (a)

    the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; and

    (b)

    a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide.

17Membership etc. of the Consumer PanelE+W+S+N.I.

(1)The members of the Consumer Panel shall be appointed by OFCOM and shall comprise a chairman and such other members as OFCOM may determine.

(2)The approval of the Secretary of State is required for the appointment of a person to be the chairman or to be another member of the Panel.

(3)In appointing persons to be members of the Consumer Panel, OFCOM must secure that, for each of the following parts of the United Kingdom—

(a)England,

(b)Scotland,

(c)Wales, and

(d)Northern Ireland,

there is a different member of the Panel capable of representing the interests and opinions of persons living in that part of the United Kingdom.

(4)In appointing persons to be members of the Consumer Panel, OFCOM must secure, so far as practicable, that the Panel are able to give informed advice about matters referable to each of the following—

(a)the interests of persons living in rural areas;

(b)the interests of persons living in urban areas;

(c)the interests of small businesses;

(d)the interests of disadvantaged persons, persons with low incomes and persons with disabilities; and

(e)the interests of the elderly.

(5)The validity of any proceedings of the Consumer Panel shall not be affected by any failure by OFCOM to comply with subsection (3) or (4).

(6)It shall be the duty of the Consumer Panel, in carrying out their functions, to have regard to the following interests—

(a)the interests of persons from the different parts of the United Kingdom; and

(b)the interests specified in subsection (4).

(7)A person shall be disqualified from being the chairman or a member of the Consumer Panel if he is a member or employee of OFCOM.

(8)The chairman and every member of the Consumer Panel—

(a)shall be appointed for a fixed period specified in the terms of his appointment but shall be eligible for re-appointment at the end of that period; and

(b)may at any time be removed from the Panel by a notice given by OFCOM with the approval of the Secretary of State.

(9)OFCOM may pay to the chairman and to any other member of the Consumer Panel such remuneration and allowances as OFCOM consider appropriate.

18Committees and other procedure of the Consumer PanelE+W+S+N.I.

(1)The Consumer Panel may make such arrangements as they think fit for committees established by the Panel to give advice to them about matters relating to the carrying out of the Panel’s functions.

(2)The Consumer Panel may make such other arrangements for regulating their own procedure, and for regulating the procedure of the committees established by them, as they think fit.

(3)Those arrangements may include arrangements as to quorums and as to the making of decisions by a majority.

(4)The committees established by the Panel may include committees the membership of which includes persons (including persons constituting a majority of the committee) who are not members of the Panel.

(5)The membership of every committee established by the Consumer Panel must contain at least one person who is a member of the Panel.

(6)Where a person who is not a member of the Consumer Panel is a member of a committee established by the Panel, OFCOM may pay to that person such remuneration and expenses as OFCOM may determine.

19Power to amend remit of Consumer PanelE+W+S+N.I.

(1)The Secretary of State may by order modify subsection (3) of section 16 so as to add to the matters about which the Consumer Panel are required to be able to give advice.

(2)Before making an order under this section the Secretary of State must consult OFCOM and such other persons as he thinks fit.

(3)No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(4)The power to amend or revoke an order under this section does not include power to provide for a matter to cease to be a matter about which the Consumer Panel are required to be able to give advice.

Prospective

Advisory committeesE+W+S+N.I.

20Advisory committees for different parts of the United KingdomE+W+S+N.I.

(1)It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM) to establish and maintain a committee for each of the following parts of the United Kingdom—

(a)England;

(b)Wales;

(c)Scotland; and

(d)Northern Ireland.

(2)Each committee shall consist of—

(a)a chairman appointed by OFCOM; and

(b)such number of other members appointed by OFCOM as OFCOM think fit.

(3)In appointing a person in accordance with this section to be a member of a committee, OFCOM must have regard to the desirability of ensuring that the person appointed is able to represent the interests and opinions, in relation to communications matters, of persons living in the part of the United Kingdom for which the committee has been established.

(4)The function of each committee shall be to provide advice to OFCOM (including other committees established by OFCOM) about the interests and opinions, in relation to communications matters, of persons living in the part of the United Kingdom for which the committee has been established.

(5)A committee established under this section may also, at the request of the Consumer Panel, provide advice about those interests and opinions to the Consumer Panel.

(6)The consent of OFCOM is required for the giving of advice under subsection (5).

(7)In this section “communications matters” has the same meaning as in section 3.

21Advisory committee on elderly and disabled personsE+W+S+N.I.

(1)It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM) to establish and maintain a committee to provide the advice specified in this section.

(2)The committee shall consist of—

(a)a chairman appointed by OFCOM; and

(b)such number of other members appointed by OFCOM as OFCOM think fit.

(3)In appointing persons to be members of the committee, OFCOM must have regard to the desirability of ensuring that the members of the committee include—

(a)persons who are familiar with the needs of the elderly; and

(b)persons who are familiar with the needs of persons with disabilities.

(4)The function of the committee shall be to provide advice to OFCOM (including other committees established by OFCOM) about the interests, in relation to communications matters, of—

(a)the elderly; and

(b)persons with disabilities.

(5)The committee may also, at the request of the Consumer Panel, provide advice about those interests to the Consumer Panel.

(6)The consent of OFCOM is required for the giving of advice under subsection (5).

(7)In this section “communications matters” has the same meaning as in section 3.

Prospective

International mattersE+W+S+N.I.

22Representation on international and other bodiesE+W+S+N.I.

(1)It shall be the duty of OFCOM to do, as respects the United Kingdom, such of the following things as they are required to do by the Secretary of State—

(a)provide representation on behalf of Her Majesty’s Government in the United Kingdom on international and other bodies having communications functions;

(b)become or serve as a member of an international or other body having such functions;

(c)subscribe to such a body;

(d)provide representation on behalf of Her Majesty’s Government in the United Kingdom at international meetings about communications.

(2)OFCOM shall also have the power, if requested to do so by the Secretary of State, to do one or more of those things as respects any of the Channel Islands, the Isle of Man or a British overseas territory.

(3)It shall be the duty of OFCOM to carry out their functions under this section in accordance with such general or specific directions as may be given to them by the Secretary of State.

(4)The Secretary of State—

(a)is not entitled to direct OFCOM to comply with a request made under subsection (2); but

(b)may give directions about how OFCOM are to carry out any representative role that they undertake in accordance with such a request.

(5)In this section—

  • communications functions” means—

    (a)

    functions relating to the use of the electro-magnetic spectrum for wireless telegraphy;

    (b)

    functions relating to the regulation of television or radio broadcasting or the provision of television and radio services; and

    (c)

    any other function which relates to, or is connected with, a matter in respect of which OFCOM have functions;

  • international meetings about communications” means international meetings relating to, or to matters connected with, one or more of the following—

    (a)

    the use of the electro-magnetic spectrum for wireless telegraphy;

    (b)

    the regulation of television or radio broadcasting or of the provision of television and radio services;

    (c)

    any other matter in respect of which OFCOM have functions.

(6)In relation to—

(a)a part of the British Islands outside the United Kingdom, or

(b)a British overseas territory,

the references in subsection (5) to matters in respect of which OFCOM have functions include references to matters corresponding, in the case of that part of those Islands or of that territory, to matters in respect of which OFCOM’s functions are confined to the United Kingdom.

(7)In subsection (5) “television or radio broadcasting” includes the provision by means other than broadcasting of services similar to those provided by television or radio broadcasts.

23Directions for international purposes in respect of broadcasting functionsE+W+S+N.I.

(1)This section applies to—

(a)OFCOM’s functions under the enactments relating to broadcasting; and

(b)the matters in relation to which those functions are conferred.

(2)It shall be the duty of OFCOM—

(a)to carry out those functions in accordance with any general or specific directions given to them by the Secretary of State for the purpose mentioned in subsection (3); and

(b)to carry out such other functions in relation to the matters to which this this section applies as they are required to carry out by any general or specific directions so given.

(3)The Secretary of State is not to give a direction under this section except for the purpose of securing compliance, in relation to a matter to which this section applies, with an international obligation of the United Kingdom.

(4)A direction under this section must be contained in an order made by the Secretary of State.

(5)In this section “the enactments relating to broadcasting” means—

(a)the 1990 Act;

(b)the 1996 Act;

(c)Part 3 of this Act; and

(d)the other provisions of this Act so far as relating to the 1990 Act, the 1996 Act or that Part.

Prospective

General information functionsE+W+S+N.I.

24Provision of information to the Secretary of StateE+W+S+N.I.

(1)It shall be the duty of OFCOM to comply with a direction by the Secretary of State to provide him with information falling within subsection (2).

(2)The information that may be the subject of a direction under this section is any information reasonably required by the Secretary of State for the purpose of enabling him to secure compliance with an international obligation of the United Kingdom.

(3)Information that is required to be provided by a direction under this section must be provided in such manner and at such times as may be required by the direction.

25Community requirement to provide informationE+W+S+N.I.

(1)This section applies if—

(a)the European Commission requires OFCOM to provide it with information for the purpose of enabling it to perform any of its functions in relation to electronic communications networks, electronic communications services or associated facilities; and

(b)the information is information obtained by OFCOM in the course of carrying out any of their functions under—

(i)Part 2; or

(ii)the enactments relating to the management of the radio spectrum that are not contained in that Part.

(2)It shall be the duty of OFCOM to comply with the requirement.

(3)If information provided to the European Commission under this section has been obtained by OFCOM from a person who is or, at the time the information was obtained from him, was—

(a)a communications provider, or

(b)a person making associated facilities available,

OFCOM must notify him that they have provided the information to the Commission.

(4)It shall be for OFCOM to determine the manner in which a notification is given under subsection (3).

26Publication of information and advice for consumers etc.E+W+S+N.I.

(1)OFCOM may arrange for the publication of such information and advice about matters in relation to which they have functions as it appears to them to be appropriate to make available to the persons mentioned in subsection (2).

(2)Those persons are—

(a)the customers of communications providers;

(b)the customers of persons who make associated facilities available;

(c)persons who use electronic communications networks, electronic communications services or associated facilities; and

(d)persons to whom radio and television services are provided or who are otherwise able or likely to take advantage of any of those services.

(3)In arranging for the publication of information or advice under this section, OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (4) and (5).

(4)A matter is confidential under this subsection if—

(a)it relates specifically to the affairs of a particular body; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(5)A matter is confidential under this subsection if—

(a)it relates to the private affairs of an individual; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(6)The publication of information or advice under this section must be in such manner as OFCOM consider appropriate.

Prospective

Employment in broadcastingE+W+S+N.I.

27Training and equality of opportunityE+W+S+N.I.

(1)It shall be the duty of OFCOM to take all such steps as they consider appropriate for promoting the development of opportunities for the training and retraining of persons—

(a)for employment by persons providing television and radio services; and

(b)for work in connection with the provision of such services otherwise than as an employee.

(2)It shall be the duty of OFCOM to take all such steps as they consider appropriate for promoting equality of opportunity in relation to both—

(a)employment by those providing television and radio services; and

(b)the training and retraining of persons for such employment.

(3)It shall also be the duty of OFCOM, in relation to such employment, training and retraining, to take all such steps as they consider appropriate for promoting the equalisation of opportunities for disabled persons.

(4)The reference in subsection (2) to equality of opportunity is a reference to equality of opportunity—

(a)between men and women; and

(b)between persons of different racial groups.

(5)In this section—

  • disabled” has the same meaning as in the Disability Discrimination Act 1995 (c. 50);

  • racial group” has the same meaning as in the Race Relations Act 1976 (c. 74) or, in Northern Ireland, the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)).

(6)The Secretary of State may by order amend subsection (4) by adding any other form of equality of opportunity that he considers appropriate.

(7)No order is to be made containing provision authorised by subsection (6) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Prospective

ChargingE+W+S+N.I.

28General power to charge for servicesE+W+S+N.I.

(1)OFCOM may provide a service to which this section applies to any person on such terms as to the making of payments to OFCOM—

(a)as they may determine in advance; or

(b)as may be agreed between that person and OFCOM.

(2)This section applies to a service which is provided by OFCOM to a person in the course of carrying out their functions and is neither—

(a)a service which OFCOM are under a duty to provide to that person; nor

(b)one in respect of which express provision is made by or under an enactment for authorising or forbidding the payment of fees or charges.

(3)In this section references to providing a service to a person include references to a service consisting in—

(a)the giving of advice to that person;

(b)the entry of his particulars in a register or other record kept by OFCOM otherwise than in pursuance of an express statutory duty to keep the register or record; or

(c)the taking of steps for the purposes of determining whether to grant an application for an entry in a register or record so kept.

Prospective

GuaranteesE+W+S+N.I.

29Secretary of State guarantees for OFCOM borrowingE+W+S+N.I.

(1)The Secretary of State may guarantee—

(a)the repayment of the principal of any borrowing by OFCOM;

(b)the payment of interest on any such borrowing; and

(c)the discharge of other financial obligations incurred by OFCOM in connection with any such borrowing.

(2)The power of the Secretary of State to give a guarantee under this section is a power (subject to subsection (3)) to give it in such manner and on such conditions as he thinks fit.

(3)The Secretary of State must not give a guarantee under this section if the aggregate of—

(a)the amounts that he may be required to pay for fulfilling that guarantee, and

(b)the amounts that he may be required to pay for fulfilling other guarantees previously given under this section and still in force,

exceeds £5 million.

(4)The Secretary of State may by order substitute another amount for the amount for the time being specified in subsection (3).

(5)No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of the House of Commons.

(6)Immediately after a guarantee is given under this section, the Secretary of State must lay a statement of the guarantee before each House of Parliament.

(7)Where any sum is paid by the Secretary of State under a guarantee given under this section, he must lay a statement relating to that sum before each House of Parliament as soon as practicable after the end of each of the financial years—

(a)beginning with the one in which the sum is paid; and

(b)ending with the one in which OFCOM’s liabilities under subsection (8) in respect of that sum are finally discharged.

(8)If sums are paid by the Secretary of State in fulfilment of a guarantee given under this section OFCOM must pay him—

(a)such amounts in or towards the repayment to him of those sums as he may direct; and

(b)interest, at such rates as he may determine, on amounts outstanding under this subsection.

(9)Payments to the Secretary of State under subsection (8) must be made at such times and in such manner as he may determine.

Provisions supplemental to transfer of functionsE+W+S+N.I.

Prospective

30Transfers of property etc. from pre-commencement regulatorsE+W+S+N.I.

(1)The Secretary of State may, by a direction to any of the pre-commencement regulators, require that regulator to make one or more schemes for the transfer from that regulator to OFCOM of such of the regulator’s property, rights and liabilities as may be specified or described in the direction.

(2)Where a pre-commencement regulator is required to make a scheme, the scheme must be made by such date as may be specified in the direction.

(3)Before making a scheme in pursuance of a direction under subsection (1), a pre-commencement regulator must consult OFCOM.

(4)A pre-commencement regulator who makes a scheme in pursuance of a direction under subsection (1) shall submit that scheme to the Secretary of State for approval.

(5)A scheme that is required to be so submitted shall have effect only if, and to the extent that, it is approved by the Secretary of State.

(6)The Secretary of State, in approving a scheme, may do so subject to such modifications as he thinks fit.

(7)Where the Secretary of State approves a scheme subject to modifications specified by him, it shall have effect with those modifications.

(8)A scheme approved by the Secretary of State under this section shall come into force either—

(a)if no time is appointed under paragraph (b), at the time when the approval is given; or

(b)if the Secretary of State appoints a later time for the coming into force of the scheme (whether when approving the scheme or by subsequently varying a time appointed under this paragraph), at that later time.

(9)Where a scheme is submitted to the Secretary of State under this section, he must—

(a)consult OFCOM about any proposal of his to approve the scheme; and

(b)consult both OFCOM and the pre-commencement regulator in question about any modifications subject to which he proposes to give his approval, or about any proposal of his to refuse approval.

(10)The Secretary of State may, after consulting OFCOM, himself make a scheme for the transfer of property, rights and liabilities—

(a)from a pre-commencement regulator to OFCOM; or

(b)from himself to OFCOM;

and such a scheme shall come into force on such day as the Secretary of State may appoint (whether in the scheme or subsequently).

(11)The Secretary of State is not to make a scheme for the transfer of property, rights and liabilities from a pre-commencement regulator to OFCOM unless—

(a)that regulator has failed to comply with a direction under subsection (1); or

(b)that regulator has complied with such a direction by submitting a scheme to the Secretary of State that he has decided not to approve (with or without modifications).

(12)Schedule 2 (which makes further provision about schemes under this section) shall have effect.

31Transitional functions and abolition of pre-commencement regulatorsE+W+S+N.I.

(1)It shall be the duty of the pre-commencement regulators to take all such steps as are necessary or expedient for ensuring that OFCOM are able effectively to carry out OFCOM’s functions from the time when they are vested in OFCOM.

(2)The pre-commencement regulators, in taking those steps, must comply with every direction given to them by the Secretary of State.

(3)The pre-commencement regulators and OFCOM shall each have a duty to provide the Secretary of State with all such information and assistance as he may require for the purposes of, or in connection with—

(a)his power to give directions under subsection (1) of section 30; and

(b)his powers and duties in relation to the approval and making of schemes under that section.

(4)On such day as the Secretary of State may by order appoint—

(a)the office of the Director General of Telecommunications shall be abolished; and

(b)the Broadcasting Standards Commission, the Independent Television Commission and the Radio Authority shall cease to exist.

(5)Section 54 of the Telecommunications Act 1984 (c. 12) (which provides for the establishment of advisory bodies) shall cease to have effect; and each of the bodies established under that section shall cease to exist on such day as the Secretary of State may by order appoint.

(6)Different days may be appointed under this section for the Director General of Telecommunications and for each of the different bodies mentioned in subsections (4)(b) and (5).

Annotations:

Commencement Information

I1S. 31 partly in force; s. 31(1)(2)(3)(4)(6) in force at Royal Assent see s. 411(3)

Prospective

Part 2 E+W+S+N.I.Networks, services and the radio spectrum

Chapter 1E+W+S+N.I.Electronic communications networks and services

PreliminaryE+W+S+N.I.

32Meaning of electronic communications networks and servicesE+W+S+N.I.

(1)In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; and

(iii)software and stored data.

(2)In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.

(3)In this Act “associated facility” means a facility which—

(a)is available for use in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility available); and

(b)is so available for the purpose of—

(i)making the provision of that network or service possible;

(ii)making possible the provision of other services provided by means of that network or service; or

(iii)supporting the provision of such other services.

(4)In this Act—

(a)references to the provision of an electronic communications network include references to its establishment, maintenance or operation;

(b)references, where one or more persons are employed or engaged to provide the network or service under the direction or control of another person, to the person by whom an electronic communications network or electronic communications service is provided are confined to references to that other person; and

(c)references, where one or more persons are employed or engaged to make facilities available under the direction or control of another person, to the person by whom any associated facilities are made available are confined to references to that other person.

(5)Paragraphs (a) and (b) of subsection (4) apply in relation to references in subsection (1) to the provision of a transmission system as they apply in relation to references in this Act to the provision of an electronic communications network.

(6)The reference in subsection (1) to a transmission system includes a reference to a transmission system consisting of no more than a transmitter used for the conveyance of signals.

(7)In subsection (2) “a content service” means so much of any service as consists in one or both of the following—

(a)the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;

(b)the exercise of editorial control over the contents of signals conveyed by means of a such a network.

(8)In this section references to the conveyance of signals include references to the transmission or routing of signals or of parts of signals and to the broadcasting of signals for general reception.

(9)For the purposes of this section the cases in which software and stored data are to be taken as being used for a particular purpose include cases in which they—

(a)have been installed or stored in order to be used for that purpose; and

(b)are available to be so used.

(10)In this section “signal” includes—

(a)anything comprising speech, music, sounds, visual images or communications or data of any description; and

(b)signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus.

Notification by providersE+W+S+N.I.

33Advance notification to OFCOME+W+S+N.I.

(1)A person shall not—

(a)provide a designated electronic communications network,

(b)provide a designated electronic communications service, or

(c)make available a designated associated facility,

unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.

(2)An electronic communications network, electronic communications service or associated facility is designated for the purposes of this section if it is of a description of networks, services or facilities that is for the time being designated by OFCOM as a description of networks, services or facilities for which notification under this section is required.

(3)A person who has given a notification for the purposes of subsection (1) must, before—

(a)providing or making available the notified network, service or facility with any significant differences, or

(b)ceasing to provide it or to make it available,

give a notification to OFCOM of the differences or (as the case may be) of his intention to cease to provide the network or service or to make the facility available.

(4)A notification for the purposes of this section must—

(a)be sent to OFCOM in such manner as OFCOM may require; and

(b)contain all such information as OFCOM may require.

(5)The only information OFCOM may require a notification to contain is—

(a)a declaration of the relevant proposal of the person giving the notification;

(b)the time when it is intended that effect should be given to the relevant proposal;

(c)particulars identifying the person giving the notification;

(d)particulars identifying one or more persons with addresses in the United Kingdom who, for the purposes of matters relating to the notified network, service or facility, are authorised to accept service at an address in the United Kingdom on behalf of the person giving the notification;

(e)particulars identifying one or more persons who may be contacted if there is an emergency that is caused by or affects the provision of the notified network, service or facility;

(f)addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) to (e).

(6)The declaration of the relevant proposal that may be required under subsection (5) is whichever of the following is appropriate in the case of the person giving the notification—

(a)a declaration of his proposal to provide the network or service described in the notification or to make available the facility so described;

(b)a declaration of his proposal to make the modifications that are so described of the network, service or facility specified in the notification; or

(c)a declaration of his proposal to cease to provide the network or service so specified or to cease to make available the facility so specified.

(7)Requirements imposed under subsection (4) are not to require a notification by a person to contain particulars falling within subsection (5)(d) in a case in which—

(a)that person is resident in a member State or has a place of business in a member State;

(b)the notification contains a statement under subsection (8);

(c)the notification sets out an address in a member State at which service will be accepted by the person who, in accordance with that statement, is authorised to accept it; and

(d)OFCOM are satisfied that adequate arrangements exist for effecting service on that person at that address.

(8)That statement is one which—

(a)declares that the person authorised, for the purposes of matters relating to the notified network, service or facilities, to accept service on behalf of the person giving the notification is that person himself; or

(b)identifies another person who is resident in a member State, or has a place of business in such State, as the person so authorised.

(9)The reference in subsection (3) to providing or making available a notified network, service or facility with significant differences is a reference to continuing to provide it, or to make it available, after a change in whatever falling within subsection (5)(a) to (f) was last notified to OFCOM under this section.

(10)References in this section to accepting service at an address are references—

(a)to accepting service of documents or process at that address; or

(b)otherwise to receiving notifications at that address;

and the reference in subsection (7) to effecting service at an address is to be construed accordingly.

(11)Where a description of electronic communications network, electronic communications service or associated facility is designated for the purposes of this section at a time when a network, service or facility of that description is already being provided or made available by a person—

(a)that person’s obligation under this section to give a notification before beginning to provide or make available that network, service or facility shall have effect as an obligation to give a notification within such period after the coming into force of the designation as may be specified in the notice in which the designation is contained; and

(b)that notification is to be one stating that that person is already providing the network or service, or making the facility available (rather than that it is his intention to do so).

(12)Subsection (11) has effect subject to any transitional provision—

(a)which is contained in the notification setting out the designation; and

(b)treats a person as having given the notification required by that subsection.

34Designations and requirements for the purposes of s. 33E+W+S+N.I.

(1)Before—

(a)making or withdrawing a designation for the purposes of section 33, or

(b)imposing or modifying a requirement under subsection (4) of that section,

OFCOM must consult such of the persons who, in their opinion, are likely to be affected by it as they think fit.

(2)Before making or withdrawing a designation for the purposes of section 33 OFCOM must also consult the Secretary of State.

(3)The way in which a designation for the purposes of section 33 or a requirement under subsection (4) of that section—

(a)is to be made or imposed, or

(b)may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the designation, requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(4)A designation for the purposes of section 33 may be framed by reference to any such description of networks, services or facilities, or such other factors, as OFCOM think fit.

(5)Requirements imposed under section 33(4) may make different provision for different cases.

35Notification of contraventions of s. 33E+W+S+N.I.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, they may give him a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM; and

(b)specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

(3)Those things are—

(a)making representations about the determination; and

(b)providing OFCOM with the information which the notified person should have provided for the purposes of section 33 but has not.

(4)Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(5)OFCOM may, if they think fit, allow a longer period for doing those things either—

(a)by specifying a longer period in the notification; or

(b)by subsequently, on one or more occasions, extending the specified period.

(6)The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(7)The person notified shall also have a shorter period if—

(a)OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

(b)they have determined that, in those circumstances, a shorter period would be appropriate; and

(c)the shorter period has been specified in the notification.

(8)A notification under this section—

(a)may be given in respect of more than one contravention of section 33; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(9)Where a notification under this section has been given to a person in respect of a contravention of section 33, OFCOM may give a further notification in respect of the same contravention if, and only if—

(a)the subsequent notification is in respect of so much of a period during which the contravention in question was continuing as falls after a period to which the earlier notification relates; or

(b)the earlier notification has been withdrawn without a penalty having been imposed by reference to the notified contravention.

(10)For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of section 33; and

(b)the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 36(2) or 37(2) that the contravention to which the previous notification related did occur.

36Enforcement notification for contravention of s. 33E+W+S+N.I.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 35;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the notified determination; and

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

(2)OFCOM may give the notified provider an enforcement notification if they are satisfied—

(a)that he has, in one or more of the respects notified, been in contravention of section 33; and

(b)that he has not, during the period allowed under section 35, provided OFCOM with all the information which he should have provided to them to remedy the contravention.

(3)An enforcement notification is a notification which imposes a requirement on the notified provider to take all such steps for providing OFCOM with that information as may be specified in the notification.

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

(a)must be notified to that person, together with the reasons for the decision, no later than a week after the day on which it is taken; and

(b)must fix a reasonable period for the taking of the steps 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—

(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.

37Penalties for contravention of s. 33E+W+S+N.I.

(1)This section applies (in addition to section 36) where—

(a)a person (“the notified provider”) has been given a notification under section 35;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

(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, in one or more of the respects notified, been in contravention of section 33; and

(b)has not, during the period allowed under section 35, provided OFCOM with all the information which he should have provided to remedy the contravention.

(3)Where a notification under section 35 relates to more than one contravention, 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 in respect of the period of contravention specified in the notification.

(5)OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 36 in respect of the notified contravention.

(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

(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; and

(b)any steps taken by him towards complying with his obligations under section 33.

(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 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

(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).

(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.

Administrative charges imposed on providersE+W+S+N.I.

38Fixing of chargesE+W+S+N.I.

(1)A person who, at any time in a charging year, is a person to whom this section applies shall—

(a)in respect of the network, service or facility provided or made available by him,

(b)in respect of the application to him of a universal service condition relating to matters mentioned in section 66(3),

(c)in respect of the application to him of an SMP apparatus condition, or

(d)in respect of the application of the electronic communications code in his case,

pay to OFCOM the administrative charge (if any) that is fixed by them for the case that is applicable to him.

(2)This section applies to a person at a time if, at that time, he is—

(a)providing an electronic communications network of a description which is, at that time, designated for the purposes of this section;

(b)providing an electronic communications service of a description which is, at that time, so designated;

(c)making available an associated facility of a description which is, at that time, so designated;

(d)a person who without being a communications provider is designated in accordance with regulations under section 66;

(e)a supplier of apparatus to whom an SMP apparatus condition applies; or

(f)a person in whose case the electronic communications code applies by virtue of a direction given under section 106 otherwise than for the purposes of the provision by him of an electronic communications network of a designated description.

(3)OFCOM are not to fix the administrative charge for a charging year unless—

(a)at the time the charge is fixed there is in force a statement by OFCOM of the principles that OFCOM are proposing to apply in fixing charges under this section for that year; and

(b)the charge is fixed in accordance with those charging principles.

(4)Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make—

(a)that, on a year by year basis, the aggregate amount of the charges payable to OFCOM is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out the functions mentioned in subsection (5);

(b)that the cost of carrying out those functions is met by the imposition of charges that are objectively justifiable and proportionate to the matters in respect of which they are imposed;

(c)that the relationship between meeting the cost of carrying out those functions and the amounts of the charges is transparent;

(d)that the charges fixed for persons who are liable to charges by reason only of being persons to whom SMP apparatus conditions apply are referable only to things done in, or in connection with, the setting, modification or enforcement of SMP apparatus conditions or the carrying out of the functions mentioned in subsection (6)(l); and

(e)that the charges fixed for persons who are liable to charges by reason only of being persons falling within subsection (2)(f), are referable only to costs incurred in, or in connection with, the carrying out of the functions mentioned in subsection (6)(g) and (l).

(5)Those functions are—

(a)the relevant Chapter 1 functions;

(b)the carrying out for a Chapter 1 purpose of any research by OFCOM or the Consumer Panel into any of the matters mentioned in section 14(1)(c) to (f);

(c)the publication under section 26 of any information or advice that it appears to OFCOM to be appropriate to make available to the persons mentioned in subsection (2)(a) to (c) of that section; and

(d)the function of taking any steps that OFCOM consider it necessary to take—

(i)in preparation for the carrying out of any of the functions mentioned in paragraphs (a) to (c) of this subsection; or

(ii)for the purpose of facilitating the carrying out of those functions or otherwise in connection with carrying them out.

(6)The relevant Chapter 1 functions are—

(a)OFCOM’s functions under sections 33 to 37 and 44;

(b)the setting, modification and enforcement of conditions under section 45;

(c)the supervision, as respects the requirements of sections 33 to 37 and of any such conditions, of communications providers and of persons who make associated facilities available;

(d)the monitoring of compliance with those requirements and with any such conditions;

(e)the functions conferred on OFCOM by or under section 55;

(f)their functions under section 105;

(g)their functions under sections 106 to 119;

(h)their functions under sections 185 to 191;

(i)securing international co-operation in relation to the regulation of electronic communications networks, electronic communications services and associated facilities;

(j)securing the harmonisation and standardisation of the regulation of electronic communications networks, electronic communications services and associated facilities;

(k)market analysis and any monitoring of the controls operating in the markets for electronic communications networks, electronic communications services and associated facilities;

(l)OFCOM’s functions under this section and sections 39 to 43.

(7)A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is the purpose of ascertaining the effectiveness of one or more of the following—

(a)the regulation of the provision of electronic communications networks or electronic communications services;

(b)the regulation of the making available of associated facilities;

(c)the mechanisms in place for the handling, by communications providers and by persons making such facilities available, of complaints made to them by consumers in markets for such services or facilities;

(d)the mechanisms in place for resolving disputes between such consumers and communications providers or persons who make such facilities available.

(8)OFCOM’s power to fix charges for a particular case includes—

(a)power to provide that the charges in that case are to be equal to the amounts produced by a computation made in the manner, and by reference to the factors, specified by them;

(b)power to provide for different charges to be imposed in that case on different descriptions of persons; and

(c)power to provide for particular descriptions of persons falling within subsection (2)(d) to (f) to be excluded from the liability to pay charges in that case.

(9)As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement setting out, in respect of that year—

(a)the aggregate amounts of the administrative charges for that year that have been received by OFCOM;

(b)the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and

(c)the cost to OFCOM of carrying out the functions mentioned in subsection (5).

(10)Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (9) shall be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (4)(a) in relation to the following year.

(11)Section 34 applies in relation to the making and withdrawal of a designation for the purposes of this section as it applies to the making and withdrawal of a designation for the purposes of section 33.

(12)In this section “charging year” means—

(a)the period beginning with the commencement of this section and ending with the next 31st March; or

(b)any subsequent period of twelve months beginning with 1st April.

39Supplemental provision about fixing chargesE+W+S+N.I.

(1)OFCOM’s power to fix a charge under section 38—

(a)is to be exercisable only by the publication or giving of such notification as they consider appropriate for bringing the charge to the attention of the persons who, in their opinion, are likely to be affected by it; and

(b)includes power, by setting it out in that notification, to fix the time at which the charge is to become due to OFCOM.

(2)A charge fixed under section 38 for a charging year may be fixed in terms providing for a deduction from the charge on a proportionate basis to be made for a part of the year during which—

(a)the network, service or facility in respect of which it is fixed is not provided or made available by the person otherwise liable to the charge;

(b)the universal service condition in respect of which it is fixed does not apply in that person’s case;

(c)the SMP apparatus condition in respect of which it is fixed does not apply in that person’s case; or

(d)the electronic communications code does not apply in that person’s case.

(3)Such a charge may also be fixed (subject to subsection (4)) so that it is referable, in whole or in part—

(a)to the provision or making available of a network, service or facility during a part of the year falling before the fixing of the charge;

(b)to the application of a universal service condition to a person for a part of the year so falling;

(c)to a person’s being a person to whom an SMP apparatus condition applies for a part of the year so falling; or

(d)to the application of the electronic communications code in a person’s case during a part of the year so falling.

(4)A charge may be fixed so as to be referable to a time before it is fixed to the extent only that both—

(a)the imposition of the charge, and

(b)the amount of the charge,

are required by, and consistent with, the statement of charging principles in force at the beginning of the charging year.

(5)Before making or revising a statement of charging principles, OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.

(6)The way in which a statement of charging principles must be made or may be revised is by the publication of the statement or revised statement 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.

(7)References in this section to a statement of charging principles are references to a statement by OFCOM of the principles that they are proposing to apply in fixing charges under section 38 for a charging year.

(8)In this section “charging year” has the same meaning as in section 38.

40Notification of non-payment of chargesE+W+S+N.I.

(1)OFCOM are not entitled to bring proceedings for the recovery from a person of an administrative charge fixed for any year under section 38 unless they have given that person a notification under this section with respect to the amount they are seeking to recover.

(2)Where OFCOM determine that there are reasonable grounds for believing that a person is in contravention (whether in respect of the whole or a part of a charge) of a requirement to pay such an administrative charge, they may give him a notification under this section.

(3)A notification under this section is one which—

(a)sets out the determination made by OFCOM; and

(b)specifies the period during which the person notified has an opportunity of doing the things specified in subsection (4).

(4)Those things are—

(a)making representations about the notified determination; and

(b)paying the unpaid charge or (as the case may be) the amount outstanding.

(5)Subject to subsections (6) to (8), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(6)OFCOM may, if they think fit, allow a longer period for doing those things either—

(a)by specifying a longer period in the notification; or

(b)by subsequently, on one or more occasions, extending the specified period.

(7)The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(8)The person notified shall also have a shorter period if—

(a)OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

(b)they have determined that, in those circumstances, a shorter period would be appropriate; and

(c)the shorter period has been specified in the notification.

(9)A notification under this section—

(a)may be given in respect of contraventions of more than one requirement to pay an administrative charge; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(10)Where a notification under this section has been given to a person in respect of an amount outstanding, OFCOM may give a further notification in respect of the whole or a part of that amount if, and only if—

(a)the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates; or

(b)the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.

(11)For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of a requirement to pay an administrative charge; and

(b)the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 41(2) that the contravention to which the previous notification related did occur.

41Penalties for non-payment of chargesE+W+S+N.I.

(1)This section applies where—

(a)a person (“the notified charge payer”) has been given a notification under section 40;

(b)OFCOM have allowed the notified charge payer an opportunity of making representations about the notified determination; and

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

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

(a)has, in one or more of the respects notified, been in contravention of a requirement to pay an administrative charge fixed under section 38; and

(b)has not, during the period allowed under section 40, paid the whole of the notified amount outstanding.

(3)Where a notification under section 40 relates to more than one contravention, 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 in respect of the period of contravention specified in the notification.

(5)The amount of a penalty imposed under this section is to be such amount, not exceeding twice the amount of the charge fixed for the relevant year, as OFCOM determine to be—

(a)appropriate; and

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

(6)In making that determination OFCOM must have regard to—

(a)any representations made to them by the notified charge payer; and

(b)any steps taken by him towards paying the amounts that he was notified under section 40 were outstanding.

(7)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 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.

(8)A penalty imposed under this section—

(a)must be paid to OFCOM; and

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

(9)In this section “the relevant year”, in relation to a contravention of a requirement to pay the whole or a part of the administrative charge fixed for any year, means that year.

(10)The provisions of this section do not affect OFCOM’s power, apart from those provisions, to bring proceedings (whether before or after the imposition of a penalty under this section) for the recovery of the whole or part of an amount due to them under section 38(1).

42Suspending service provision for non-paymentE+W+S+N.I.

(1)OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) 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 38 (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 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;

(d)that an attempt, by the imposition of penalties under section 41, 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 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 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 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 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 40, OFCOM have determined for the purposes of section 41(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 administrative charges.

43Enforcement of directions under s. 42E+W+S+N.I.

(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 42; or

(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 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 42 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

(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 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 42 as they apply in relation to a contravention of conditions set under section 45.

Register of providers required to notify or to pay chargesE+W+S+N.I.

44Duty of OFCOM to keep publicly accessible registerE+W+S+N.I.

(1)It shall be the duty of OFCOM to establish and maintain a register for the purposes of section 33.

(2)OFCOM must record in the register—

(a)every designation by them for the purposes of section 33 or 38;

(b)every withdrawal by them of such a designation;

(c)every notification given to them under section 33; 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 inspection; and

(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.

(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.E+W+S+N.I.

45Power of OFCOM to set conditionsE+W+S+N.I.

(1)OFCOM shall have the power to set conditions under this section binding the persons to whom they are applied in accordance with section 46.

(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 51, 52, 57, 58 or 64.

(4)A universal service condition is a condition which contains only provisions authorised or required by section 67.

(5)An access-related condition is a condition which contains only provisions authorised by section 73.

(6)A privileged supplier condition is a condition which contains only the provision required by section 77.

(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 which—

(a)are authorised or required by one or more of sections 87 to 92; or

(b)in the case of a condition applying to a person falling within section 46(8)(b), correspond to provision authorised or required by one or more of sections 87 to 89.

(9)An SMP apparatus condition is a condition containing only provisions authorised by section 93.

(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, for the purposes of provision made by virtue of either 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;

(d)power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and

(e)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 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.

46Persons to whom conditions may applyE+W+S+N.I.

(1)A condition set under section 45 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 the condition.

(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 77; or

(b)to every such person who is of a particular description specified in the condition.

(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 66, 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 matters.

(6)The particular person to whom an access-related condition is applied—

(a)in the case of a condition falling within section 74(1), may be any person 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 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 87 to 89.

(9)The particular person to whom an SMP apparatus condition is applied must be—

(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”).

47Test for setting or modifying conditionsE+W+S+N.I.

(1)OFCOM must not, in exercise or performance of any power or duty under this Chapter—

(a)set a condition under section 45, or

(b)modify such a condition,

unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in subsection (2).

(2)That test is that the condition or modification is—

(a)objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what the condition or modification is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

48Procedure for setting, modifying and revoking conditionsE+W+S+N.I.

(1)Subject to the following provisions of this Chapter—

(a)the way in which conditions are to be set or modified under section 45 is by the publication of a notification setting out the conditions or modifications; and

(b)the way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.

(2)Before setting conditions under section 45, or modifying or revoking a condition so set, OFCOM must publish a notification—

(a)stating that they are proposing to set, modify or revoke the conditions that are specified in the notification;

(b)setting out the effect of those conditions, modifications or revocations;

(c)giving their reasons for making the proposal; and

(d)specifying the period within which representations may be made to OFCOM about their proposal.

(3)That period must end no less than one month after the day of the publication of the notification.

(4)In the case of a notification under subsection (2) with respect to an SMP condition, the applicable requirements of sections 79 to 86 must also be complied with.

(5)OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (2) only if—

(a)they have considered every representation about the proposal that is made to them within the period specified in the notification; and

(b)they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(6)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification—

(a)in the case of a notification setting general conditions, to the attention of such persons as OFCOM consider appropriate; and

(b)in any other case, to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the contents of the notification.

(7)Nothing in the following provisions of this Chapter imposing a duty on OFCOM to set or modify a condition shall be taken as dispensing with any of the requirements of this section.

49Directions and approvals for the purposes of a s. 45 conditionE+W+S+N.I.

(1)This section applies where—

(a)a condition set under section 45 has effect by reference to directions, approvals or consents given by a person (whether OFCOM themselves or another); and

(b)that person is proposing to give a direction, approval or consent that affects the operation of that condition or to modify or withdraw a direction, approval or consent so as to affect the condition’s operation.

(2)A person must not give, modify or withdraw the direction, approval or consent unless he is satisfied that to do so is—

(a)objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what it is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

(3)In giving, modifying or withdrawing the direction, approval or consent, a person other than OFCOM shall be under the same duty as OFCOM to act in accordance with the six Community requirements set out in section 4.

(4)Before the direction, approval or consent is given, modified or withdrawn, a notification must be published—

(a)stating that there is a proposal to give, modify or withdraw it;

(b)identifying the person whose proposal it is;

(c)setting out the direction, approval or consent to which the proposal relates;

(d)setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;

(e)giving reasons for the making of the proposal; and

(f)specifying the period within which representations may be made about the proposal to the person whose proposal it is.

(5)That period must be one ending not less than one month after the day of the publication of the notification.

(6)But, where—

(a)the person giving the notification is satisfied that there are exceptional circumstances justifying the use of a shorter period, and

(b)the notification is not one that is required to be sent to the European Commission under section 50(4) or (5),

the period specified as the period for making representations may be whatever shorter period that person considers reasonable in those circumstances.

(7)In a case in which—

(a)a person other than OFCOM is proposing to give, modify or withdraw a direction, approval or consent, and

(b)the condition for the purposes of which the direction, approval or consent has effect, or will have effect, provides for notifications of proposals for the purposes of that condition to be given by that person,

the obligation of publishing the notification for the purposes of subsection (4) of that proposal falls on that person.

(8)In any other case, the obligation of publishing a notification for the purposes of subsection (4) falls on OFCOM.

(9)The person who is authorised to give the direction, approval or consent may give effect, with or without modifications, to a proposal with respect to which a notification has been given under subsection (4) only if—

(a)he has considered every representation about the proposal that is made to him within the period specified in the notification; and

(b)he has had regard to every international obligation of the United Kingdom (if any) which has been notified to OFCOM for the purposes of this paragraph by the Secretary of State.

(10)The publication of a notification under this section must be in such manner as appears to the person publishing it to be appropriate for bringing the contents of the notification to the attention of such persons as he considers appropriate.

50Delivery of copies of notifications etc.E+W+S+N.I.

(1)The relevant person must send to the Secretary of State—

(a)a copy of every notification published under section 48(1) or (2);

(b)a copy of every notification published under section 49(4);

(c)a copy of every direction, approval or consent given for the purpose of giving effect to a proposal required to be published under section 49(4); and

(d)a copy of every instrument modifying or withdrawing a direction, approval or consent for the purpose of giving effect to such a proposal.

(2)The relevant person must send to the European Commission—

(a)a copy of every notification published under section 48(1) with respect to an SMP services condition;

(b)a copy of every direction, approval or consent given for the purposes of such a condition; and

(c)a copy of every instrument modifying or withdrawing such a direction, approval or consent.

(3)OFCOM must send to the European Commission and to the regulatory authorities of every other member State a copy of every notification published by them under section 48(2) with respect to a proposal which—

(a)relates to the setting, modification or revocation of an access-related condition falling within section 73(2) or (4) or of an SMP services condition; and

(b)is a proposal which, in OFCOM’s opinion, would affect trade between member States.

(4)OFCOM must send to the European Commission and to the regulatory authorities of every other member State a copy of every notification published by them under section 49(4) with respect to a proposal which—

(a)relates to the giving of a direction, approval or consent for the purposes of—

(i)an access-related condition falling within section 73(2) or (4), or

(ii)an SMP services condition,

or to the modification or withdrawal of such a direction, approval or consent; and

(b)is a proposal which, in OFCOM’s opinion, would affect trade between member States.

(5)Where it is a person other than OFCOM who is the relevant person who is required to publish a notification under section 49(4) relating to the giving, modification or withdrawal of a direction, approval or consent given for purposes mentioned in subsection (4)(a) of this section—

(a)that person must refer to OFCOM the question whether, in their opinion, the proposal would affect trade between member States;

(b)OFCOM must immediately determine that question on that reference; and

(c)the relevant person must send a copy of the notification to the European Commission and to the regulatory authorities of every other member State if OFCOM determine that the proposal is one which, in their opinion, would affect trade between member States.

(6)The relevant person must, in every other case in which it appears to him appropriate to do so, send a copy of—

(a)every notification published under section 48(1) or (2) or 49(4),

(b)every direction, approval or consent given for the purposes of a condition set under section 45, and

(c)every instrument modifying or withdrawing such a direction, approval or consent,

to the European Commission and to such of the regulatory authorities of the other member States as the relevant person thinks fit.

(7)Subsection (6) does not apply where—

(a)the notification or the notified proposal relates to an SMP apparatus condition, or to a direction, approval or consent for the purposes of such a condition; or

(b)the direction, approval or consent given, modified or withdrawn is for the purposes of such a condition.

(8)In this section “the relevant person”, in relation to a notification, direction, approval or consent—

(a)except in a case falling within paragraph (b), means the person by whom it is published or (as the case may be) the person by whom it has been or is to be given, modified or withdrawn; and

(b)in the case of a direction, approval or consent given, modified or withdrawn by a person other than OFCOM for the purpose of giving effect to a proposal published by OFCOM under section 49(4), means OFCOM.

General conditions: subject-matterE+W+S+N.I.

51Matters to which general conditions may relateE+W+S+N.I.

(1)Subject to sections 52 to 64, the only conditions that may be set under section 45 as general conditions are conditions falling within one or more of the following paragraphs—

(a)conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;

(b)conditions making such provision as OFCOM consider appropriate for securing service interoperability and for securing, or otherwise relating to, network access;

(c)conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;

(d)conditions for giving effect to determinations or regulations made under section 71;

(e)conditions requiring or regulating the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;

(f)conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;

(g)conditions requiring compliance with relevant international standards.

(2)The power under subsection (1)(a) to set conditions for protecting the interests of the end-users of public electronic communications services includes power to set conditions for that purpose which—

(a)relate to the supply, provision or making available of goods, services or facilities in association with the provision of public electronic communications services; and

(b)give effect to Community obligations to provide protection for such end-users in relation to the supply, provision or making available of those goods, services or facilities.

(3)The power to set general conditions in relation to a description of electronic communications network or electronic communications service does not include power—

(a)to set conditions that are made applicable according to the identity of the provider of a network or service; or

(b)to set conditions that differ according to the identity of the provider of the networks or services to which they relate.

(4)The power to set general conditions falling within subsection (1)(b) does not include power to set conditions containing provision which under—

(a)section 73, or

(b)any of sections 87 to 92,

must be or may be included, in a case in which it appears to OFCOM to be appropriate to do so, in an access-related condition or SMP condition.

(5)The conditions falling within subsection (1)(c) include conditions making such provision as OFCOM consider appropriate for the purpose, in accordance with Community obligations, of preventing or restricting electro-magnetic interference—

(a)with the provision of an electronic communications network or electronic communications service; or

(b)with, or with the receipt of, anything conveyed or provided by means of such a network or service.

(6)In this section “electro-magnetic interference” means interference by means of the emission or reflection of electro-magnetic energy in the course of, or in connection with, the provision any electronic communications network or electronic communications service.

(7)In this section “disaster” includes any major incident having a significant effect on the general public; and for this purpose a major incident includes any incident of contamination involving radioactive substances or other toxic materials.

General conditions: customer interestsE+W+S+N.I.

52Conditions relating to customer interestsE+W+S+N.I.

(1)It shall be the duty of OFCOM to set such general conditions (if any) as they consider appropriate for securing that—

(a)public communications providers, or

(b)such descriptions of them as OFCOM consider appropriate,

establish and maintain procedures, standards and policies with respect to the matters mentioned in subsection (2).

(2)Those matters are—

(a)the handling of complaints made to public communications providers by any of their domestic and small business customers;

(b)the resolution of disputes between such providers and any of their domestic and small business customers;

(c)the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

(d)the information about service standards and about the rights of domestic and small business customers that is to be made available to those customers by public communications providers;

(e)any other matter appearing to OFCOM to be necessary for securing effective protection for the domestic and small business customers of such providers.

(3)It shall be the duty of OFCOM, in setting conditions in accordance with subsection (1), to secure so far as they consider appropriate—

(a)that the procedures established and maintained for the handling of complaints and the resolution of disputes are easy to use, transparent and effective;

(b)that domestic and small business customers have the right to use those procedures free of charge; and

(c)that where public communications providers are in contravention of conditions set in accordance with the preceding provisions of this section, the providers follow such procedures as may be required by the general conditions.

(4)Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for the handling of complaints are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers to establish and maintain procedures that conform with a code of practice which is—

(a)applicable to the providers to whom the conditions apply; and

(b)for the time being approved by OFCOM for the purposes of this subsection.

(5)Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for resolving disputes are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers—

(a)to establish and maintain procedures for resolving disputes; and

(b)to secure that those procedures are, and continue to be, approved by OFCOM.

(6)In this section “domestic and small business customer”, in relation to a public communications provider, means a customer of that provider who is neither—

(a)himself a communications provider; nor

(b)a person who is such a customer in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise).

53Approval of codes of practice for the purposes of s. 52E+W+S+N.I.

(1)Where a code of practice is submitted to OFCOM for approval, they shall approve that code if and only if, in their opinion, it makes all such provision as they consider necessary in relation to the matters dealt with in the code for the protection of the domestic and small business customers of the public communications providers to whom the code applies.

(2)It shall be the duty of OFCOM to keep under review the codes of practice for the time being approved by them.

(3)OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a)approve modifications that have been made to an approved code;

(b)withdraw their approval from a code; or

(c)give notice that the withdrawal of their approval will take effect from such time as may be specified in the notification unless such modifications of the code as are specified in the notification are made before that time.

(4)In considering—

(a)whether to approve a code of practice, or

(b)whether or in what manner to exercise their powers under subsections (2) and (3) of this section,

OFCOM must have regard to the matters mentioned in subsection (5).

(5)Those matters are—

(a)the need to secure that customers are able readily to comprehend the procedures that are provided for by an approved code of practice;

(b)the need to secure that there is consistency between the different codes for the time being approved by OFCOM; and

(c)the need to secure that the number of different codes so approved is kept to a minimum.

(6)In this section—

  • approval” means approval for the purposes of section 52(4) and “approve” and “approved” are to be construed accordingly; and

  • domestic and small business customer” has the same meaning as in section 52.

54Approval of dispute procedures for the purposes of s. 52E+W+S+N.I.

(1)Before giving their approval to any dispute procedures, OFCOM must consult the Secretary of State.

(2)OFCOM are not to approve dispute procedures unless they are satisfied that the arrangements under which the procedures have effect—

(a)are administered by person who is for practical purposes independent (so far as decisions in relation to disputes are concerned) of both OFCOM and the communications providers to whom the arrangements apply;

(b)give effect to procedures that are easy to use, transparent and effective;

(c)give, in the case of every communications provider to whom the arrangements apply, a right to each of his domestic and small business customers to use the procedures free of charge;

(d)ensure that all information necessary for giving effect to the procedures is obtained;

(e)ensure that disputes are effectively investigated;

(f)include provision conferring power to make awards of appropriate compensation; and

(g)are such as to enable awards of compensation to be properly enforced.

(3)OFCOM may approve dispute procedures subject to such conditions (including conditions as to the provision of information to OFCOM) as they may think fit.

(4)It shall be the duty of OFCOM to keep under review the dispute procedures for the time being approved by them.

(5)OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a)modify the conditions of their approval of any dispute procedures or withdraw such an approval; or

(b)give notice that the modification of those conditions, or the withdrawal of such an approval, will take effect from such time as may be specified in the notification unless the procedures (or the arrangements under which they have effect) are modified before that time in the manner required by the notification.

(6)In considering—

(a)whether to approve dispute procedures, or

(b)whether or in what manner to exercise their powers under subsections (3) to (5),

OFCOM must have regard to the matters mentioned in subsection (7).

(7)Those matters are—

(a)the need to secure that customers are able readily to comprehend dispute procedures;

(b)the need to secure that there is consistency between the different procedures for the time being approved by OFCOM; and

(c)the need to secure that the number of different sets of procedures so approved is kept to a minimum.

(8)In this section—

  • approval” means approval for the purposes of subsection (5) of section 52 and “approve” and “approved” are to be construed accordingly;

  • dispute procedures” means any such procedures as may fall to be approved for the purposes of that subsection; and

  • domestic and small business customer” has the same meaning as in section 52.

55Orders by OFCOM in the absence of conditions under s. 52E+W+S+N.I.

(1)OFCOM may make an order under this section if, at any time, they consider in relation to any one or more public communications providers—

(a)that it is not practicable, or at least not appropriate, for OFCOM’s duties under subsections (1) and (3) of section 52 to be performed in a particular respect by the setting of general conditions; and

(b)that it is necessary to make the order for the purpose—

(i)of securing the necessary protection for the customers of that provider or of those providers; or

(ii)of securing compliance with a Community obligation.

(2)An order under this section may make such of the following provisions as OFCOM think fit—

(a)provision imposing requirements with respect to the complaints and disputes mentioned in section 52(2);

(b)provision for the enforcement of those requirements;

(c)provision making other arrangements for the purposes of those requirements.

(3)The power to make provision by an order under this section includes, in particular—

(a)power to establish a body corporate with the capacity to make its own rules and to establish its own procedures;

(b)power to determine the jurisdiction of a body established by such an order or, for the purposes of the order, of any other person;

(c)power to confer jurisdiction with respect to any matter on OFCOM themselves;

(d)power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e)power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order; and

(f)power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4)An order under this section may require such public communications providers as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a)the establishment and maintenance, in accordance with such an order, of a body corporate or of a procedure; or

(b)the making of any other arrangements for the purposes of the requirements of such an order.

(5)The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(6)Section 403 applies to the power of OFCOM to make an order under this section.

(7)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

General conditions: telephone numbersE+W+S+N.I.

56The National Telephone Numbering PlanE+W+S+N.I.

(1)It shall be the duty of OFCOM to publish a document (to be known as “the National Telephone Numbering Plan”) setting out—

(a)the numbers that they have determined to be available for allocation by them as telephone numbers;

(b)such restrictions as they consider appropriate on the adoption of numbers available for allocation in accordance with the plan; and

(c)such restrictions as they consider appropriate on the other uses to which numbers available for allocation in accordance with the plan may be put.

(2)It shall be OFCOM’s duty—

(a)from time to time to review the National Telephone Numbering Plan; and

(b)to make any revision of that plan that they think fit in consequence of such a review;

but this duty must be performed in compliance with the requirements, so far as applicable, of section 60.

(3)OFCOM must also keep such day to day records as they consider appropriate of the telephone numbers allocated by them in accordance with the National Telephone Numbering Plan.

(4)The publication of the National Telephone Numbering Plan, or of a revision of it, must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the Plan, or of the revised Plan, to the attention of such persons as OFCOM consider appropriate.

(5)In this Chapter references to a telephone number are (subject to subsection (7)) references to any number that is used (whether or not in connection with telephony) for any one or more of the following purposes—

(a)identifying the destination for, or recipient of, an electronic communication;

(b)identifying the origin, or sender, of an electronic communication;

(c)identifying the route for an electronic communication;

(d)identifying the source from which an electronic communication or electronic communications service may be obtained or accessed;

(e)selecting the service that is to be obtained or accessed, or required elements or characteristics of that service; or

(f)identifying the communications provider by means of whose network or service an electronic communication is to be transmitted, or treated as transmitted.

(6)In this Chapter references to the adoption of a telephone number by a communications provider are references to his doing any of the following in relation to a number allocated (whether or not to that provider) by OFCOM—

(a)allocating or transferring that number to a particular customer or piece of apparatus;

(b)using that number for identifying a service or route used by that provider or by any of his customers;

(c)using that number for identifying a communication as one to be transmitted by that provider;

(d)designating that number for use in selecting a service or the required elements or characteristics of a service;

(e)authorising the use of that number by others for any of the purposes mentioned in subsection (5).

(7)The Secretary of State may by order exclude such numbers as may be described in the order from the numbers that are to be treated as telephone numbers for the purposes of this Chapter.

(8)No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(9)References in this section to the allocation of a number are references to its allocation for the purposes of general conditions under section 58 or in accordance with conditions under section 59.

(10)In this section—

  • electronic communication” means a communication for transmission by means of an electronic communications network; and

  • number” includes data of any description.

57Conditions to secure access to telephone numbersE+W+S+N.I.

(1)General conditions may impose such requirements as OFCOM consider appropriate for securing that every end-user of a public electronic communications service is able, by means of that service—

(a)to make calls or otherwise transmit electronic communications to every normal telephone number; and

(b)to receive every call or other electronic communication that is made or transmitted to him using such a service from apparatus identified by a normal telephone number.

(2)A normal telephone number is one which—

(a)has been made available, in accordance with the National Telephone Numbering Plan, as a number to be used for the purpose of identifying the destination for, or the recipient of, electronic communications; and

(b)is for the time being—

(i)a number adopted by a communications provider to be used for such a purpose; or

(ii)a number in use for such a purpose by a person other than a communications provider to whom it has been allocated in accordance with conditions under section 59.

(3)In this section “electronic communication” has the same meaning as in section 56.

58Conditions about allocation and adoption of numbersE+W+S+N.I.

(1)General conditions may include conditions which—

(a)prohibit the adoption of telephone numbers by a communications provider except in cases where the numbers have been allocated by OFCOM to a person;

(b)regulate the use by a communications provider, for the purpose of providing an electronic communications network or electronic communications service, of telephone numbers not allocated to that provider;

(c)impose restrictions on the adoption of telephone numbers by a communications provider, and on other practices by communications providers in relation to telephone numbers allocated to them;

(d)impose requirements on a communications provider in connection with the adoption by him of telephone numbers;

(e)require an allocation of particular telephone numbers to be transferred from one communications provider to another in the circumstances provided for in the conditions;

(f)impose such requirements and restrictions on a communications provider from whom an allocation is required to be transferred as may be provided for, in relation to the transfer, in the conditions;

(g)require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of the allocation to him of telephone numbers;

(h)require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of transfers of allocations from one person to another; and

(i)require communications providers to secure compliance with such rules relating to the use of telephone numbers by their customers as OFCOM may set out in general conditions or determine in accordance with provision made by the general conditions.

(2)General conditions may also—

(a)provide for the procedure to be followed on the making of applications to OFCOM for the allocation of telephone numbers;

(b)provide for the information that must accompany such applications and for the handling of such applications;

(c)provide a procedure for telephone numbers to be reserved pending the making and disposal of an application for their allocation;

(d)provide for the procedure to be followed on the making of applications for telephone numbers to be reserved, and for the handling of such applications;

(e)regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the adoption by a communications provider of telephone numbers allocated to that provider;

(f)regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the transfer of an allocation from one person to another.

(3)The conditions that may be set under subsection (1)(d) include conditions imposing requirements with respect to the provision of information for purposes connected with—

(a)the compilation of directories; and

(b)the provision of directory enquiry facilities.

(4)The procedure to be followed on the making of an application for the allocation of numbers that are available for allocation in accordance with the National Telephone Numbering Plan must require OFCOM’s determination of the application to be made—

(a)in the case of an application made in response to an invitation in accordance with subsection (5), before the end of six weeks after the day on which the application is received; and

(b)in any other case, before the end of three weeks after that day.

(5)Where OFCOM are proposing to allocate any telephone numbers, they may—

(a)invite persons to indicate the payments each would be willing to make to OFCOM if allocated the numbers; and

(b)make the allocation according to the amounts indicated.

(6)General conditions providing for payments to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a)must set out the principles according to which the amounts of the payments are to be determined;

(b)may provide for the payments to consist of a lump sum in respect of a particular allocation or transfer or of sums payable periodically while an allocation remains in force, or of both;

(c)may provide for the amounts to be determined by reference to—

(i)any indication according to which the allocation has been made as mentioned in subsection (5); or

(ii)any other factors (including the costs incurred by OFCOM in connection with the carrying out of their functions by virtue of section 56 and this section) as OFCOM think fit.

(7)General conditions may—

(a)make modifications from time to time of, or of the method of determining, the amounts of periodic payments falling to be made by virtue of conditions containing provision authorised by this section; and

(b)make different provision in relation to different descriptions of communications provider and different descriptions of telephone number.

(8)Nothing in subsection (7) authorises the modification, after it has been fixed, of the amount of a periodic payment fixed in accordance with arrangements made in relation to numbers allocated as mentioned in subsection (5)(b).

(9)Payments that are required to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a)must be paid to them as soon as they become due in accordance with the conditions imposing the obligation to pay; and

(b)if not so paid, are to be recoverable by them accordingly.

59Telephone numbering conditions binding non-providersE+W+S+N.I.

(1)OFCOM may set conditions under this section that apply to persons other than communications providers and relate to—

(a)the allocation of telephone numbers to such persons;

(b)the transfer of allocations to and from such persons; and

(c)the use of telephone numbers by such persons.

(2)The conditions that may be set under this section include conditions imposing obligations corresponding to any of the obligations that may be imposed on communications providers by general conditions making provision for, or in connection with—

(a)the allocation of telephone numbers;

(b)the transfer of allocations; or

(c)the use of telephone numbers.

(3)Subsection (10) of section 45 applies to OFCOM’s power to set a condition under this section as it applies to their power to set a condition under that section.

(4)Sections 47 to 49 apply in relation to—

(a)the setting of conditions under this section and the modification and revocation of such conditions; and

(b)the giving, modification or withdrawal of any direction, approval or consent for the purposes of a condition under this section,

as they apply in the case of general conditions and in the case of directions, approvals and consents given for the purposes of general conditions.

(5)It shall be the duty of a person who—

(a)is not a communications provider, but

(b)applies for the allocation of a telephone number, or is allocated such a number,

to comply with any conditions set under this section.

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

(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.

(7)Subsection (6) does not apply in the case of a person against whom the obligations contained in the condition in question are enforceable (by virtue of his having become a communications provider) as obligations imposed by general conditions.

60Modification of documents referred to in numbering conditionsE+W+S+N.I.

(1)This section applies where numbering conditions for the time being have effect by reference to provisions, as they have effect from time to time, of—

(a)the National Telephone Numbering Plan; or

(b)another document published by OFCOM.

(2)OFCOM must not revise or otherwise modify the relevant provisions unless they are satisfied that the revision or modification is—

(a)objectively justifiable in relation to the matters to which it relates;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what the modification is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

(3)Before revising or otherwise modifying the relevant provisions, OFCOM must publish a notification—

(a)stating that they are proposing to do so;

(b)specifying the Plan or other document that they are proposing to revise or modify;

(c)setting out the effect of their proposed revisions or modifications;

(d)giving their reasons for making the proposal; and

(e)specifying the period within which representations may be made to OFCOM about their proposal.

(4)That period must be one ending not less than one month after the day of the publication of the notification.

(5)OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (3) only if—

(a)they have considered every representation about the proposal that is made to them within the period specified in the notification; and

(b)they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(6)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.

(7)In this section—

  • numbering conditions” means—

    (a)

    general conditions the making of which is authorised by section 57 or 58;

    (b)

    conditions set under section 59;

  • the relevant provisions”, in relation to the Plan or document, means the provisions of the Plan or document by reference to which (as they have effect from time to time) the numbering conditions in question have effect.

61Withdrawal of telephone number allocationsE+W+S+N.I.

(1)Where OFCOM have allocated telephone numbers for the purposes of any numbering conditions, they may withdraw that allocation if, and only if, the case is one in which the withdrawal of an allocation is authorised by this section.

(2)The withdrawal of an allocation is authorised (subject to section 62) if—

(a)consent to the withdrawal is given by the person to whom the numbers are for the time being allocated;

(b)the withdrawal is made for the purposes of a transfer of the allocation required by numbering conditions;

(c)the withdrawal is made for the purposes of a numbering reorganisation applicable to a particular series of telephone numbers;

(d)the withdrawal is made in circumstances specified in the numbering conditions and for the purpose of securing that what appears to OFCOM to be the best and most efficient use is made of the numbers and other data that are appropriate for use as telephone numbers;

(e)the allocated numbers are numbers that have not been adopted during such period after their allocation as may be specified in the numbering conditions; or

(f)the allocated numbers are comprised in a series of numbers which have not to a significant extent been adopted or used during such period as may be so specified.

(3)The withdrawal of an allocation is also authorised where—

(a)there have been serious and repeated contraventions, by the person to whom the allocation is for the time being allocated, of the numbering conditions; and

(b)it appears to OFCOM that the taking of other steps in respect of the contraventions is likely to prove ineffective for securing future compliance.

(4)The withdrawal of an allocation is also authorised where—

(a)the person to whom the allocation is for the time being allocated is not a communications provider; and

(b)it appears to OFCOM that contraventions by that person of numbering conditions makes the withdrawal of the allocation appropriate.

(5)OFCOM’s power to set conditions specifying circumstances for the purposes of subsection (2)(d), and their power to withdraw an allocation in the specified circumstances, are each exercisable only in a manner that does not discriminate unduly—

(a)against particular communications providers;

(b)against particular users of the allocated numbers; or

(c)against a particular description of such providers or users;

and the purposes for which those powers may be exercised do not include the carrying out of a numbering reorganisation of the sort mentioned in subsection (2)(c).

(6)Where OFCOM are proposing to withdraw an allocation in exercise of the power conferred by virtue of subsection (2)(e) or (f), they must—

(a)give a notification of their proposal;

(b)consider any representations made to them about the proposal within the period of one month following the day on which the notification is given; and

(c)ensure that the withdrawal (if OFCOM decide to proceed with it after considering those representations) does not take effect until the end of the three months beginning with the end of the period mentioned in paragraph (b).

(7)A notification for the purposes of subsection (6) must be given in such manner as OFCOM consider appropriate for bringing it to the attention of—

(a)the person to whom the numbers to which the proposed withdrawal relates are for the time being allocated;

(b)every person appearing to OFCOM to be a person to whom communications are or may be transmitted using one of those numbers for identifying the destination or route;

(c)every person who uses one or more of those numbers for obtaining access to services or for communication; and

(d)every other person who, in OFCOM’s opinion, is likely to be affected by the proposal.

(8)For the purposes of this section there are repeated contraventions by a person of numbering conditions to the extent that—

(a)in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that a contravention of a numbering condition 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 contraventions of numbering conditions;

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different conditions.

(9)In this section “numbering conditions” means—

(a)general conditions the making of which is authorised by section 58; or

(b)conditions set under section 59.

62Numbering reorganisationsE+W+S+N.I.

(1)This section applies to the withdrawal of an allocation for the purposes of a numbering reorganisation that is applicable to a particular series of telephone numbers.

(2)The allocation is to be withdrawn only if the reorganisation, so far as it relates to numbers of any description, is not such as to discriminate unduly—

(a)against particular communications providers;

(b)against particular users of the allocated numbers; or

(c)against a particular description of such providers or users.

(3)The allocation must not be withdrawn if the reorganisation fails to provide for withdrawn allocations to be replaced by allocations of telephone numbers so nearly resembling the numbers to which the withdrawal relates as the purpose of the reorganisation allows.

(4)Where a replacement allocation is made for the purposes of the re-organisation—

(a)no payment is to be made to OFCOM in respect of the making of the replacement allocation; but

(b)subsection (5) is to apply.

(5)Where this subsection applies—

(a)a provision for the making of periodic payments in respect of the withdrawn allocation is to be treated, to the extent that OFCOM determine that it should, as a provision requiring the making of periodic payments in respect of the replacement allocation; and

(b)OFCOM may, if they think fit, make such repayments or adjustments of a provision for payment as appear to them to be appropriate in consequence of differences between—

(i)the numbers to which the withdrawn allocation relates; and

(ii)the numbers to which the replacement allocation relates.

63General duty as to telephone numbering functionsE+W+S+N.I.

(1)It shall be the duty of OFCOM, in the carrying out of their functions under sections 56 to 62—

(a)to secure that what appears to them to be the best use is made of the numbers that are appropriate for use as telephone numbers; and

(b)to encourage efficiency and innovation for that purpose.

(2)It shall also be the duty of OFCOM, in carrying out those functions, to secure that there is no undue discrimination by communications providers against other communications providers in relation to the adoption of telephone numbers for purposes connected with the use by one communications provider, or his customers, of an electronic communications network or electronic communications service provided by another.

(3)In this section “number” has the same meaning as in section 56.

General conditions: must-carry obligationsE+W+S+N.I.

64Must-carry obligationsE+W+S+N.I.

(1)General conditions may include conditions making any provision that OFCOM consider appropriate for securing that particular services are broadcast or otherwise transmitted by means of the electronic communications networks described in the conditions.

(2)A general condition containing provision authorised by this section is not (subject to subsection (4)) to require a service to be broadcast or otherwise transmitted by means of an electronic communications network unless—

(a)the service is included in the list of must-carry services; and

(b)the effect of the requirement is confined to networks by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes.

(3)That list is as follows—

(a)any service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;

(b)the Channel 3 services so far as provided in digital form;

(c)Channel 4 so far as provided in digital form;

(d)Channel 5 so far as provided in digital form;

(e)S4C Digital;

(f)the digital public teletext service.

(4)General conditions making provision authorised by this section in relation to a listed service must, to such extent as OFCOM consider appropriate (and subject to subsection (5))—

(a)apply the requirement to broadcast or otherwise transmit that service to every service which is an ancillary service by reference to the listed service; and

(b)provide for the listed service to be treated for the purposes of the conditions as constituting such other services comprised in or provided with that service as may be determined by OFCOM.

(5)General conditions making provision authorised by this section must also comply with all such restrictions (if any) as may be imposed by order made by the Secretary of State as to the maximum and minimum amounts, or proportions, of available capacity that are to be required by such conditions to be used in the case of a network for the broadcasting or other transmission of particular services, or descriptions of service.

(6)In making an order under subsection (5) the Secretary of State must have regard to—

(a)the objective of securing that services included in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to be applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable; and

(b)the need to secure that the amount of capacity available in the case of every network for making other services available is reasonable and, accordingly, that the burden of complying with conditions set in accordance with this section is proportionate to the public benefit to be secured by that objective.

(7)It shall be the duty of the Secretary of State from time to time to review—

(a)the list of must-carry services; and

(b)any requirements for the time being in force under this section with respect to the terms on which services must be broadcast or otherwise transmitted.

(8)Where the Secretary of State carries out such a review, he must consult the following about the matters under review—

(a)OFCOM; and

(b)such persons who, in his opinion, are likely to be affected by a modification of the list of must-carry services, or who represent any of those persons, as he thinks fit.

(9)If, on such a review, he considers it appropriate to do so, the Secretary of State may by order modify the list of must-carry services.

(10)In determining whether it is appropriate for the purposes of subsection (9) to add a service to the list of must-carry services or to remove it, the Secretary of State must have regard, in particular, to—

(a)the public benefit to be secured by the addition of the service to the list, or by its retention in the list;

(b)the extent to which the service (if it were not included in the list) would nevertheless be made available to an acceptable technical standard by means of the networks to which conditions set in accordance with this section apply;

(c)the capacity left available, after the requirements of those conditions have been complied with, for the broadcasting or other transmission of material by means of each of those networks; and

(d)the need to secure that the burden of complying with conditions so set is proportionate to the objective of securing that the services in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable.

(11)The Secretary of State may also, if (whether on such a review or in any other circumstances) he considers it appropriate to do so, by order make provision imposing requirements as to what, as between—

(a)the person providing a must-carry service, and

(b)the person providing a network by means of which it is to be provided,

are to be the terms on which the service is to be broadcast or otherwise transmitted, in pursuance of general conditions set in accordance with this section, by means of that network.

(12)An order under subsection (11) may provide for the terms to be determined by OFCOM in accordance with the provisions of the order.

(13)Before making an order under subsection (5), and before making an order under subsection (11) in a case in which there has been no review under subsection (7), the Secretary of State must consult—

(a)OFCOM, and

(b)such persons who, in his opinion, are likely to be affected by the order, or who represent any of those persons, as he thinks fit.

(14)Section 362 applies for construing this section as it applies for the purposes of Part 3.

Universal service conditionsE+W+S+N.I.

65Obligations to be secured by universal service conditionsE+W+S+N.I.

(1)The Secretary of State must by order (“the universal service order”) set out the extent to which the things falling within subsection (2) must, for the purpose of securing compliance with Community obligations for the time being in force, be provided, made available or supplied throughout the United Kingdom.

(2)Those things are—

(a)electronic communications networks and electronic communications services;

(b)facilities capable of being made available as part of or in connection with an electronic communications service;

(c)particular methods of billing for electronic communications services or of accepting payment for them;

(d)directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and

(e)directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.

(3)The universal service order may contain guidance about matters relating to the pricing of things that the order says must be provided, made available or supplied.

(4)Before making or varying the universal service order, the Secretary of State must consult OFCOM and such other persons as he considers appropriate.

66Designation of universal service providersE+W+S+N.I.

(1)OFCOM may by regulations make provision for the designation of the persons to whom universal service conditions are to be applicable.

(2)Subject to subsection (3), those regulations are not to authorise the designation of a person other than a communications provider.

(3)The regulations may provide for a person other than a communications provider to be designated for the purposes only of conditions relating to—

(a)the supply of directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and

(b)the making available of directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.

(4)OFCOM may from time to time—

(a)review the designations for the time being in force in accordance with regulations under this section; and

(b)on such a review, consider what (if any) universal service conditions should continue to apply to each of the designated persons.

(5)The procedure to be followed in the case of every such review must be the procedure provided for in regulations made by OFCOM.

(6)Regulations made by OFCOM under this section must provide for a person’s designation as a person to whom universal service conditions are to be applicable to cease to have effect where, in any such case as may be described in the regulations, the universal service conditions applied to him are all revoked.

(7)Regulations made by OFCOM under this section providing a procedure for the designation of persons, or for the conduct of a review under subsection (4), must not provide for any procedure other than one appearing to OFCOM—

(a)to be efficient, objective and transparent; and

(b)not to involve, or to tend to give rise to, any undue discrimination against any person or description of persons.

(8)Where—

(a)OFCOM designate a person in accordance with regulations under this section, or

(b)a designation of a person in accordance with any such regulations ceases to have effect,

they must give a notification of that designation, or of that fact, to the European Commission.

(9)A notification under this section must identify the person who has been designated, or the person whose designation has ceased to have effect.

(10)Section 403 applies to the power of OFCOM to make regulations under this section.

67Subject-matter of universal service conditionsE+W+S+N.I.

(1)OFCOM may set any such universal service conditions as they consider appropriate for securing compliance with the obligations set out in the universal service order.

(2)Universal service conditions applied to a person must include a condition requiring him to publish information about his performance in complying with the universal service conditions that apply to him.

(3)A condition set in accordance with subsection (2) must contain provision which—

(a)requires information published in accordance with it to be updated from time to time and published again;

(b)requires information so published to satisfy the requirements that OFCOM consider appropriate for securing that it is adequate; and

(c)requires information so published to be framed by reference to the quality of service parameters, definitions and measurement methods for the time being set out in Annex III to the Universal Service Directive.

(4)A condition set in accordance with that subsection may impose requirements as to—

(a)the times at which information published in accordance with it is to be published; and

(b)the manner in which that information is to be published.

(5)Universal service conditions may impose an obligation on a person to whom they apply to do one or both of the following, if required to do so by OFCOM—

(a)to make facilities available for enabling information published in pursuance of a condition applied to that person under subsection (2) to be independently audited;

(b)to meet the costs of any independent auditing of that information that is required by OFCOM.

(6)The reference in subsection (5) to the independent auditing of information is a reference to its being audited by a qualified auditor—

(a)for accuracy; and

(b)for its usefulness in the making of comparisons with information published by other designated universal service providers.

(7)Universal service conditions may impose performance targets on designated universal service providers with respect to any of the matters in relation to which obligations may be imposed by such conditions.

(8)In setting a universal service condition, OFCOM must have regard to any guidance about matters relating to pricing that is contained in the universal service order.

(9)In this section “qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor.

68Tariffs etc. for universal servicesE+W+S+N.I.

(1)It shall be the duty of OFCOM—

(a)to keep under review universal service tariffs; and

(b)to monitor changes to those tariffs.

(2)Universal service conditions may require one or more of the following—

(a)the use of a common tariff, or of common tariffs, in relation to anything mentioned in section 65(2);

(b)the use, in such cases as may be specified or described in the conditions, of such special tariffs in relation to anything so mentioned as may be so specified or described;

(c)the fixing of tariffs used in accordance with the conditions by the use of such methods, and by reference to such methods of computing costs, as may be so specified or described.

(3)Universal service conditions must secure that the terms on which a person is provided with anything required by the universal service order do not require him—

(a)to pay for an unnecessary additional service; or

(b)to pay, in respect of anything required by the order, any amount that is attributable to the provision to him of such a service.

(4)The references in subsection (3), in relation to a person, to an unnecessary additional service are references to anything the provision of which—

(a)he has to accept by reason of his being provided, at his request, with something required by the order (“the requested service”); and

(b)is not necessary for the purpose of providing him with the requested service.

(5)It shall be the duty of OFCOM, in setting a universal service condition about universal service tariffs, to have regard to anything ascertained by them in the performance of their duty under subsection (1).

(6)References in this section to a universal service tariff are references to any of the tariffs used by designated universal service providers in relation to the things for the time being required by the universal service order.

(7)References in this section to providing a person with anything include references to making it available or supplying it to him.

(8)In this section “tariff” includes a pricing structure.

69Directories and directory enquiry facilitiesE+W+S+N.I.

(1)This section applies where universal service conditions require a designated universal service provider—

(a)to supply a directory capable of being used in connection with the use of an electronic communications network or electronic communications service; or

(b)to make available directory enquiry facilities capable of being used for purposes connected with use of such a network or service.

(2)The universal service conditions applied to the provider must include the conditions that OFCOM consider appropriate for securing that the provider does not unduly discriminate against a source of relevant information—

(a)in the compiling of the directory or the answering of directory enquiries; or

(b)in the treatment in the directory, or for the purposes of the facilities, of any relevant information from that source.

(3)In this section—

(a)references to relevant information are references to information provided for inclusion in the directory or for use in the answering of directory enquiries; and

(b)references to a source of relevant information are references to a communications provider or designated universal service provider who provides relevant information.

70Review of compliance costsE+W+S+N.I.

(1)OFCOM may from time to time review the extent (if any) of the financial burden for a particular designated universal service provider of complying in relation to any matter with any one or more of the universal service conditions applied to him.

(2)Where—

(a)regulations under section 66 require the financial burden of so complying to be taken into account in determining whom to designate, and

(b)the regulations provide for a particular method of calculating that burden to be used for the purposes of that determination,

that must be the method of calculation applied on a review under this section.

(3)Where subsection (2) does not apply, the financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the designated universal service provider from—

(a)his designation; and

(b)the application to him of universal service conditions.

(4)After carrying out a review under this section OFCOM must either—

(a)cause the calculations made by them on the review to be audited by a person who appears to them to be independent of designated universal service providers; or

(b)themselves carry out an audit of those calculations.

(5)OFCOM must ensure, in the case of every audit carried out under subsection (4), that a report on the audit—

(a)is prepared; and

(b)if not prepared by OFCOM, is provided to them.

(6)It shall be the duty of OFCOM, in the case of every review under this section, to publish—

(a)their conclusions on the review; and

(b)a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.

(7)The publication of anything under subsection (6) must be a publication 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.

71Sharing of burden of universal service obligationsE+W+S+N.I.

(1)This section applies where OFCOM—

(a)have concluded, on a review under section 70, that complying in relation to any matter with universal service conditions imposes a financial burden on a particular designated universal service provider; and

(b)have published that conclusion in accordance with that section.

(2)OFCOM must determine, in the case of the designated universal service provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.

(3)If—

(a)OFCOM determine that it would be unfair for the designated universal service provider to bear, or to continue to bear, the whole or a part of the burden, and

(b)an application for a determination under this subsection is made to OFCOM by that provider,

OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.

(4)The making of any of the following must be in accordance with regulations made by OFCOM—

(a)a determination by OFCOM of the extent of the financial burden that exists for the designated universal service provider of complying in relation to any matter with universal service conditions;

(b)an application for the purposes of subsection (3)(b);

(c)a determination by OFCOM of whether it is or would be unfair for the designated universal service provider to bear, or to continue to bear, the burden of complying in relation to any matter with universal service conditions;

(d)a determination of the extent (if any) to which that is or would be unfair.

(5)The assessment, collection and distribution of contributions under subsection (3) is not to be carried out except in accordance with a mechanism provided for in a scheme contained in regulations made by OFCOM.

(6)It shall be the duty of OFCOM to exercise their power to make regulations under this section in the manner which they consider will secure that the assessment, collection and distribution of contributions under subsection (3) is carried out—

(a)in an objective and transparent manner;

(b)in a manner that does not involve, or tend to give rise to, any undue discrimination against particular communications providers or particular designated universal service providers, or against a particular description of them; and

(c)in a manner that avoids, or (if that is impracticable) at least minimises, any distortion of competition or of customer demand.

(7)Regulations made by OFCOM under this section may provide for a scheme containing the provision mentioned in subsection (5), and for any fund set up for the purposes of such a scheme, to be administered either—

(a)by OFCOM; or

(b)by such other person as may be specified in the regulations.

(8)A person other than OFCOM is not to be specified in regulations under this section as the administrator of such a scheme or fund unless he is a person who OFCOM are satisfied is independent of both—

(a)the persons who are designated universal service providers; and

(b)communications providers to whom general conditions are applicable.

(9)Section 403 applies to the powers of OFCOM to make regulations under this section.

72Report on sharing mechanismE+W+S+N.I.

(1)This section applies where regulations under section 71 provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.

(2)OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—

(a)every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in the universal service order;

(b)the market benefits for each designated universal service provider that have accrued to him during that period from his designation and from the application to him of universal service conditions; and

(c)the contribution made under section 71(3) by every person who has made a contribution during that period.

(3)The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71.

(4)Every subsequent report must be prepared in relation to the period of twelve months beginning with the end of the period to which the previous report applied.

(5)Every report under this section—

(a)must be prepared as soon as practicable after the end of the period to which it is to apply; and

(b)must be published as soon as practicable after its preparation is complete.

(6)OFCOM are not required under this section—

(a)to publish any matter that is confidential in accordance with subsection (7) or (8); or

(b)to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.

(7)A matter is confidential under this subsection if—

(a)it relates specifically to the affairs of a particular body; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(8)A matter is confidential under this subsection if—

(a)it relates to the private affairs of an individual; and

(b)publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(9)The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.

Access-related conditionsE+W+S+N.I.

73Permitted subject-matter of access-related conditionsE+W+S+N.I.

(1)The only conditions that may be set under section 45 as access-related conditions are those authorised by this section.

(2)Access-related conditions may include conditions relating to the provision of such network access and service interoperability as appears to OFCOM appropriate for the purpose of securing—

(a)efficiency on the part of communications providers and persons making associated facilities available;

(b)sustainable competition between them; and

(c)the greatest possible benefit for the end-users of public electronic communications services.

(3)Access-related conditions may include conditions appearing to OFCOM to be appropriate for securing that persons to whom the electronic communications code applies participate, in cases where there are no viable alternative arrangements that may be made, in arrangements for—

(a)sharing the use of electronic communications apparatus; and

(b)apportioning and making contributions towards costs incurred in relation to shared electronic communications apparatus.

(4)Access-related conditions may include one which—

(a)is of a technical or operational nature;

(b)appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with any SMP services condition falling within section 87(3); and

(c)is applied to—

(i)a person who is required by such an SMP services condition to confer any entitlements to network access; or

(ii)a person on whom such an entitlement is or may be conferred in pursuance of a requirement imposed by such an SMP services condition.

(5)Access-related conditions may include conditions containing any provision required by section 75(2).

74Specific types of access-related conditionsE+W+S+N.I.

(1)The conditions that may be set by virtue of section 73(2) include conditions which, for the purpose of securing end-to-end connectivity for the end-users of public electronic communications services provided by means of a series of electronic communications networks—

(a)impose obligations on a person controlling network access to any of those networks; and

(b)require the interconnection of the networks.

(2)The conditions that may be set by virtue of section 73(2) also include such conditions imposing obligations on a person providing facilities for the use of application programme interfaces or electronic programme guides as OFCOM consider to be necessary for securing—

(a)that persons are able to have access to such programme services provided in digital form as OFCOM may determine; and

(b)that the facility for using those interfaces or guides is provided on terms which—

(i)are fair and reasonable; and

(ii)do not involve, or tend to give rise to, any undue discrimination against any person or description of persons.

(3)In this section—

  • application programme interface” means a facility for allowing software to make use, in connection with any of the matters mentioned in subsection (4), of facilities contained in other software;

  • electronic programme guide” means a facility by means of which a person has access to any service which consists of—

    (a)

    the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services; and

    (b)

    a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

  • end-to-end connectivity” means the facility—

    (a)

    for different end-users of the same public electronic communications service to be able to communicate with each other; and

    (b)

    for the end-users of different such services to be able, each using the service of which he is the end-user, to communicate with each other.

(4)The matters mentioned in subsection (3), in the definition of “application programme interface”, are—

(a)allowing a person to have access to programme services;

(b)allowing a person, other than a communications provider or a person who makes associated facilities available, to make use of an electronic communications network by means of which a programme service is broadcast or otherwise transmitted;

(c)allowing a person to become the end-user of a description of public electronic communications service.

(5)This section is not to be construed as restricting the provision that may be made under section 73(2).

75Conditional access systems and access to digital servicesE+W+S+N.I.

(1)It shall be the duty of OFCOM, when setting a condition falling within section 73(4), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.

(2)It shall be the duty of OFCOM to ensure—

(a)that access-related conditions are applied to every person who provides a conditional access system in relation to a protected programme service; and

(b)that those conditions make all such provision as is required by the provision contained from time to time in Part I of Annex I to the Access Directive (conditions relating to access to digital programme services).

(3)In this section—

  • conditional access system” means any system, facility, arrangements or technical measure under or by means of which access to programme services requires—

    (a)

    a subscription to the service or to a service that includes that service; or

    (b)

    an authorisation to view it, or to listen to it, on a particular occasion;

  • protected programme service” means a programme service the programmes included in which cannot be viewed or listened to in an intelligible form except by the use of a conditional access system.

76Modification and revocation of conditions imposed under s. 75E+W+S+N.I.

(1)This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).

(2)OFCOM must not give effect to a proposal to modify or revoke any of the conditions unless—

(a)they have carried out an analysis for the purpose of determining in accordance with this Chapter whether that person is or remains a person on whom SMP services conditions are capable of being imposed;

(b)they have determined in consequence of that analysis that he is not; and

(c)they are satisfied that the modification or revocation will not have an adverse effect on any or all of the matters mentioned in subsection (3).

(3)Those matters are—

(a)the accessibility to any persons of services that are for the time being included in the list of must-carry services in section 64;

(b)the prospects for effective competition in the market for programme services provided by being broadcast or otherwise transmitted in digital form; and

(c)the prospects for effective competition in the markets for conditional access systems and other associated facilities.

(4)In this section “conditional access system” has the same meaning as in section 75.

Privileged supplier conditionsE+W+S+N.I.

77Imposition of privileged supplier conditionsE+W+S+N.I.

(1)It shall be the duty of OFCOM to secure that privileged supplier conditions containing all such provision falling within subsection (3) as they consider appropriate are applied to every public communications provider to whom this section applies.

(2)This section applies to every public communications provider who—

(a)enjoys special or exclusive rights in relation to the provision of any non-communications services; and

(b)is not such a provider in respect only of associated facilities.

(3)The provision that may be contained in a condition set under section 45 as a privileged supplier condition is any provision that OFCOM consider appropriate for any one or more of the following purposes—

(a)requiring the provider to whom it applies to keep separate accounts in relation to his public electronic communications network or public electronic communications service and other matters;

(b)requiring that provider to submit the accounts of the different parts of his undertaking, and any financial report relating to a part of that undertaking, to a qualified auditor for auditing;

(c)requiring the accounts of the different parts of his undertaking to be published;

(d)securing, by means other than the keeping of separate accounts, the structural separation of the different parts of his undertaking.

(4)OFCOM are not required under this section to apply a condition to a person where they are satisfied that that person has an annual turnover in relation to all his communications activities that is less than ?50 million.

(5)Where in a case falling within subsection (4) OFCOM are not required to apply a privileged supplier condition to a person, they may apply such a condition to him if they think fit.

(6)The reference in subsection (4) to a person’s communications activities is a reference to any activities of his that consist in, or are connected with, either or both of the following—

(a)the provision of any one or more electronic communications networks;

(b)the provision of any one or more electronic communications services.

(7)The making, for the purposes of subsection (4), of—

(a)a determination of the period in respect of which a person’s annual turnover in relation to any activities is computed, and

(b)a determination of the amount in Euros of that turnover for any period,

must be in accordance with such rules as OFCOM consider to be reasonable.

(8)OFCOM must publish any rules made by them for the purposes of subsection (7) in such manner as they consider appropriate for bringing them to the attention of the persons who, in their opinion, are likely to be affected by them.

(9)In this section—

  • non-communications services”, in relation to a person, means services other than those consisting in, or connected with, the provision by him of—

    (a)

    an electronic communications network; or

    (b)

    an electronic communications service;

  • qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor;

  • special or exclusive rights” has the same meaning as in Article 86 of the Treaty establishing the European Community.

SMP conditions: procedureE+W+S+N.I.

78Circumstances required for the setting of SMP conditionsE+W+S+N.I.

(1)For the purposes of this Chapter a person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.

(2)References in this section to dominance of a market must be construed in accordance with any applicable provisions of Article 14 of the Framework Directive.

(3)A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.

(4)A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.

(5)The matters that must be taken into account in determining whether a combination of persons enjoys a position of dominance of a services market include, in particular, the matters set out in Annex II to the Framework Directive.

79Market power determinationsE+W+S+N.I.

(1)Before making a market power determination, OFCOM must—

(a)identify (by reference, in particular, to area and locality) the markets which in their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and

(b)carry out an analysis of the identified markets.

(2)In identifying or analysing any services market for the purposes of this Chapter, OFCOM must take due account of all applicable guidelines and recommendations which—

(a)have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and

(b)relate to market identification and analysis.

(3)In considering whether to make or revise a market power determination in relation to a services market, OFCOM must take due account of all applicable guidelines and recommendations which—

(a)have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and

(b)relate to market analysis or the determination of what constitutes significant market power.

(4)The way in which—

(a)a market is to be identified for the purposes of this section, or

(b)a market power determination is to be made,

is by the publication of a notification containing the identification or determination.

(5)Notifications for the purposes of subsection (4)—

(a)may be given separately;

(b)may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or

(c)may be contained in a single notification under section 48(1) with respect to the setting or modification of an SMP condition and either—

(i)the making of the market power determination by reference to which OFCOM set or modify that condition; or

(ii)the making of that market power determination and the identification of the market in relation to which they make that determination.

(6)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

(7)References in this section to guidelines and recommendations issued by the European Commission and to a Community instrument include references, respectively, to guidelines and recommendations issued after the commencement of this section and to a Community instrument made after the commencement of this section.

80Proposals for identifying markets and for market power determinationsE+W+S+N.I.

(1)Before OFCOM—

(a)identify a market for the purposes of making a market power determination, or

(b)make a market power determination,

they must publish a notification of what they are proposing to do.

(2)Notifications for the purposes of subsection (1)—

(a)may be given separately;

(b)may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or

(c)may be contained in a single notification under section 48(2) with respect to the setting or modification of an SMP condition and either—

(i)the making of the market power determination by reference to which OFCOM are proposing to set or modify that condition; or

(ii)the making of that market power determination and the identification of the market in relation to which they are proposing to make that determination.

(3)A notification under this section relating to a proposal to identify a market or to make a market power determination must—

(a)state that OFCOM are proposing to identify that market or to make that market power determination;

(b)set out the effect of the proposal;

(c)give their reasons for making the proposal; and

(d)specify the period within which representations may be made to OFCOM about their proposal.

(4)That period must be a period of not less than one month after the day of the publication of the notification.

(5)The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

(6)OFCOM may give effect, with or without modifications, to a proposal with respect to which they have given a notification under this section only if—

(a)they have considered every representation about the proposal that is made to them within the period specified in the notification; and

(b)they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(7)The power of OFCOM to give effect to such a proposal is subject to sections 82 and 83.

81Delivery of copies of notifications under ss. 79 and 80E+W+S+N.I.

(1)OFCOM must send a copy of every notification published under section 79(4) or 80 to the Secretary of State.

(2)OFCOM must send to the European Commission a copy of every notification published under section 79(4) with respect to a market power determination in relation to a services market.

(3)OFCOM must send a copy of every notification published under section 80 which—

(a)relates to a proposal to identify a services market or to make a market power determination in relation to such a market; and

(b)in OFCOM’s opinion would affect trade between member States,

to the European Commission and to the regulatory authorities of every other member State.

(4)OFCOM must, in every other case in which it appears to them appropriate to do so, send—

(a)to the European Commission, and

(b)to such of the regulatory authorities of the other member States as OFCOM think fit,

a copy of a notification published under section 80 which relates to a proposal to identify a services market or to make a market power determination in relation to such a market.

82European Commission’s powers in respect of proposalsE+W+S+N.I.

(1)This section applies, in the case of a notification under section 80 with respect to a proposal—

(a)to identify a particular market; or

(b)to make a market power determination.

(2)If, within the representations period, OFCOM are notified by the European Commission for the purposes of Article 7(4) of the Framework Directive (market identifications that do not conform to Commission recommendations and determinations that affect trade between member States)—

(a)that the Commission considers that giving effect to the proposal would create a barrier in relation to the single European market, or

(b)that the Commission has serious doubts as to whether giving effect to the proposal would be compatible with the requirements of any Community obligations,

OFCOM are not to give effect to the proposal before the end of a further two months beginning with the end of the representations period.

(3)Where, before the end of that two month period, the European Commission makes a decision in accordance with Article 7(4) of the Framework Directive that the proposal should be withdrawn, OFCOM—

(a)must withdraw it; and

(b)shall not be entitled to give effect to it.

(4)In this section “the representations period”, in relation to a notification under section 80, means the period specified in that notification for the making of representations about the proposals contained in it.

83Special rules for transnational marketsE+W+S+N.I.

(1)This section applies where a services market is for the time being identified by a decision of the European Commission under Article 15(4) of the Framework Directive as a transnational market.

(2)Where the market area includes the whole or a part of the United Kingdom, OFCOM must enter into and maintain arrangements with the other relevant regulatory authorities about—

(a)the extent to which the agreement of all the relevant regulatory authorities is required for the doing of any of the things mentioned in subsection (3); and

(b)the procedures to be followed for securing that agreement where it is required.

(3)Those things are—

(a)the identification of the whole or a part of the market as a market in relation to which it is appropriate to determine whether a person has significant market power;

(b)the making of such a determination in relation to the whole or a part of the market;

(c)the setting of a condition the setting of which requires such a determination to have been made;

(d)the modification or revocation of such a condition.

(4)OFCOM must not do any of the things mentioned in subsection (3) except in accordance with arrangements maintained under that subsection.

(5)Those arrangements may include arrangements requiring OFCOM, when doing any of those things, to comply with—

(a)a decision made, by one or more other regulatory authorities; or

(b)a decision made by a person appointed under the arrangements to act on behalf of some or all of the relevant regulatory authorities.

(6)In this section—

  • market area”, in relation to a services market identified by the European Commission as a transnational market, means the area identified by that Commission as the area for which the market operates; and

  • relevant regulatory authorities”, in relation to such a market, means the regulatory authorities for each member State the whole or a part of which is comprised in the market area.

84Review of services market identifications and determinationsE+W+S+N.I.

(1)This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.

(2)OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—

(a)reviewing market power determinations made on the basis of an earlier analysis;

(b)deciding whether to make proposals for the modification of SMP conditions set by reference to a market power determination made on such a basis.

(3)It shall be the duty of OFCOM to carry out such a further analysis of a services market as soon as reasonably practicable after recommendations are made by the European Commission that affect the matters that were taken into account, or could have been taken into account, in the case of the last analysis by OFCOM of that market.

(4)Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they must revoke every SMP services condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(5)Before carrying out a further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out an earlier analysis.

(6)Where, on such a review, OFCOM conclude that the appropriate markets have changed—

(a)they must identify the markets they now consider to be the appropriate ones; and

(b)those markets shall be the identified markets for the purposes of the further analysis.

(7)Sections 79 to 83 apply—

(a)in relation to the identification of a services market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b)in relation to the review of such a determination, as they apply in relation to the making of such a determination.

85Review of apparatus market identifications and determinationsE+W+S+N.I.

(1)This section applies where OFCOM have identified and analysed an apparatus market for the purposes of making a market power determination.

(2)OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—

(a)reviewing market power determinations made on the basis of an earlier analysis;

(b)deciding whether to make proposals for the modification of SMP conditions set by reference to any such market power determination.

(3)Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they shall revoke every SMP apparatus condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(4)Before carrying out any further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out any earlier analysis.

(5)Where on such a review OFCOM conclude that the appropriate markets have changed—

(a)they shall identify the markets they now consider to be the appropriate ones; and

(b)those markets shall be the identified markets for the purposes of the further analysis.

(6)Where on such a review OFCOM conclude that there is no person at all with significant market power in relation to the identified market—

(a)they must so inform the Secretary of State; and

(b)the Secretary of State may by order remove or restrict OFCOM’s power under this Chapter to set SMP apparatus conditions by reference to that market.

(7)Sections 79, 80 and 81(1) apply—

(a)in relation to the identification of a apparatus market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b)in relation to the review of such a determination, as they apply in relation to the making of such a determination.

86Cases where review requiredE+W+S+N.I.

(1)OFCOM must not set an SMP services condition by a notification which does not also make the market power determination by reference to which the condition is set unless—

(a)the condition is set by reference to a market power determination which has been reviewed under section 84 and, in consequence of that review, is confirmed in the notification setting the condition; or

(b)the condition is set by reference to a market power determination made in relation to a market in which OFCOM are satisfied there has been no material change since the determination was made.

(2)OFCOM must not modify or revoke SMP services conditions applying to a person except in a case falling within subsection (3) or (4).

(3)The first case is where, for the purpose of determining whether to make the modification or revocation, OFCOM have—

(a)carried out a further analysis under section 84 of the market in question; and

(b)reviewed the market power determination for the time being in force in that person’s case.

(4)The second case is where OFCOM are satisfied that there has not—

(a)in the case of an unmodified condition, since the condition was set, or

(b)in any other case, since the condition was last modified,

been a material change in the market identified or otherwise used for the purposes of the market power determination by reference to which the condition was set or last modified.

(5)OFCOM must not modify SMP apparatus conditions applying to a person except where, for the purpose of determining whether to make the modification or revocation, they have—

(a)carried out a further analysis under section 85 of the market in question; and

(b)reviewed the market power determination for the time being in force in that person’s case.

(6)A change is a material change for the purposes of subsection (1) or (4) if it is one that is material to—

(a)the setting of the condition in question; or

(b)the modification or revocation in question.

SMP services conditions: subject-matterE+W+S+N.I.

87Conditions about network access etc.E+W+S+N.I.

(1)Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—

(a)set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and

(b)apply those conditions to that person.

(2)This section applies to—

(a)a person who provides a public electronic communications network; and

(b)a person who makes available facilities that are associated facilities by reference to such a network.

(3)This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects—

(a)the provision of network access to the relevant network;

(b)the use of the relevant network; and

(c)the availability of the relevant facilities.

(4)In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—

(a)the technical and economic viability, having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;

(b)the feasibility of the provision of the proposed network access;

(c)the investment made by the person initially providing or making available the network or other facility in respect of which an entitlement to network access is proposed;

(d)the need to secure effective competition in the long term;

(e)any rights to intellectual property that are relevant to the proposal; and

(f)the desirability of securing that electronic communications services are provided that are available throughout the member States.

(5)The conditions authorised by subsection (3) may include provision—

(a)for securing fairness and reasonableness in the way in which requests for network access are made and responded to; and

(b)for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions.

(6)The SMP conditions authorised by this section also include one or more of the following—

(a)a condition requiring the dominant provider not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with network access to the relevant network or with the availability of the relevant facilities;

(b)a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;

(c)a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which he is willing to enter into an access contract;

(d)a condition requiring the terms and conditions on which the dominant provider is willing to enter into an access contract to include such terms and conditions as may be specified or described in the condition;

(e)a condition requiring the dominant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which he is willing to enter into an access contract.

(7)The SMP conditions authorised by this section also include conditions requiring the dominant provider to maintain a separation for accounting purposes between such different matters relating—

(a)to network access to the relevant network, or

(b)to the availability of the relevant facilities,

as OFCOM may from time to time direct.

(8)The SMP conditions authorised by subsection (7) include conditions imposing requirements about the accounting methods to be used in maintaining the separation.

(9)The SMP conditions authorised by this section also include (subject to section 88) conditions imposing on the dominant provider—

(a)such price controls as OFCOM may direct in relation to matters connected with the provision of network access to the relevant network, or with the availability of the relevant facilities;

(b)such rules as they may make in relation to those matters about the recovery of costs and cost orientation;

(c)such rules as they may make for those purposes about the use of cost accounting systems; and

(d)obligations to adjust prices in accordance with such directions given by OFCOM as they may consider appropriate.

(10)The SMP conditions authorised by subsection (9) include conditions requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations imposed by virtue of that subsection.

(11)Where OFCOM set a condition authorised by this section which imposes rules on the dominant provider about the use of cost accounting systems, it shall be their duty also to set, and to apply to him, an SMP condition which imposes on him an obligation—

(a)to make arrangements for a description to be made available to the public of the cost accounting system used in pursuance of that condition; and

(b)to include in that description details of—

(i)the main categories under which costs are brought into account for the purposes of that system; and

(ii)the rules applied for the purposes of that system with respect to the allocation of costs.

(12)In this section—

  • access contract” means—

    (a)

    a contract for the provision by a person to whom this section applies to another person of network access to the relevant network; or

    (b)

    a contract under which the relevant facilities are made available by a person to whom this section applies to another person;

  • the relevant facilities”, in relation to a person to whom this section applies, means the associated facilities made available by that person in relation to a public electronic communications network; and

  • the relevant network”, in relation to such a person, means the public electronic communications network provided by him.

88Conditions about network access pricing etc.E+W+S+N.I.

(1)OFCOM are not to set an SMP condition falling within section 87(9) except where—

(a)it appears to them from the market analysis carried out for the purpose of setting that condition that there is a relevant risk of adverse effects arising from price distortion; and

(b)it also appears to them that the setting of the condition is appropriate for the purposes of—

(i)promoting efficiency;

(ii)promoting sustainable competition; and

(iii)conferring the greatest possible benefits on the end-users of public electronic communications services.

(2)In setting an SMP condition falling within section 87(9) OFCOM must take account of the extent of the investment in the matters to which the condition relates of the person to whom it is to apply.

(3)For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—

(a)so fix and maintain some or all of his prices at an excessively high level, or

(b)so impose a price squeeze,

as to have adverse consequences for end-users of public electronic communications services.

(4)In considering the matters mentioned in subsection (1)(b) OFCOM may—

(a)have regard to the prices at which services are available in comparable competitive markets;

(b)determine what they consider to represent efficiency by using such cost accounting methods as they think fit.

(5)In this section “the dominant provider” has the same meaning as in section 87.

89Conditions about network access in exceptional casesE+W+S+N.I.

(1)This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

(b)that person is the provider of an electronic communications network or a person who makes associated facilities available; and

(c)OFCOM consider that there are exceptional circumstances making it appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.

(2)OFCOM may set the additional SMP conditions and apply them to the dominant provider if—

(a)they have submitted the additional conditions to the European Commission for approval; and

(b)the Commission has approved the imposition on the dominant provider of the obligations contained in those conditions.

90Conditions about carrier selection and pre-selectionE+W+S+N.I.

(1)This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market; and

(b)it appears to OFCOM that the market is a market relating to services for the provision of public electronic communications networks for use by means of connections at fixed locations.

(2)It shall be the duty of OFCOM to set, and to apply to the dominant provider, such SMP conditions authorised by this section as they think fit.

(3)The SMP conditions authorised by this section are conditions requiring the dominant provider to do one or both of the following—

(a)to make a relevant connection facility available to every person to whom he provides a public electronic communications service;

(b)for the purpose of making such a connection facility available to such persons, to make facilities for interconnection available to a person providing an electronic communications service.

(4)Where OFCOM set a condition requiring the dominant provider to make a relevant connection facility available, they shall also set such SMP conditions as they consider appropriate—

(a)with respect to the relationship to costs of any prices fixed for the use of the facility; and

(b)for the purpose of securing that prices and other charges imposed on the persons to whom public electronic communications services are provided by the dominant provider do not constitute a disincentive to the use of the facility.

(5)Where OFCOM set conditions authorised by this section, those conditions may include provision imposing obligations as to the manner in which one or both of the following are to be made available in accordance with the conditions—

(a)the relevant connection facility in question;

(b)the facilities for interconnection that are to be made available to a person providing an electronic communications service.

(6)In this section “relevant connection facility” is a facility which—

(a)allows a person to whom a public electronic communications service is provided by means of an electronic communications network to select which public electronic communications service provided wholly or partly by means of that network is the service that he wishes to use; and

(b)enables that selection to be made either—

(i)by the use of a telephone number on each separate occasion on which a selection is made; or

(ii)by designating in advance the selection that is to apply on every occasion when no such selection as is mentioned in sub-paragraph (i) is made.

91Conditions about regulation of services etc. for end-usersE+W+S+N.I.

(1)Where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market (“the relevant market”),

(b)the relevant market is one for the end-users of public electronic communications services that are available in that market, and

(c)it appears to OFCOM that the test in subsection (2) is satisfied in the case of that provider,

they shall set, and apply to that provider, such SMP conditions authorised by this section as they consider appropriate.

(2)That test is that OFCOM are unable, by the setting of conditions of the sorts specified in subsection (3), to perform, or fully to perform, their duties under section 4 in relation to the market situation in the relevant market.

(3)The sorts of conditions referred to in subsection (2) are—

(a)access-related conditions; and

(b)SMP conditions authorised or required by sections 87 to 90.

(4)The reference in subsection (2) to the market situation in the relevant market is a reference to the situation revealed by such market analyses of that market as may have been carried out for the purposes of this Chapter.

(5)The SMP conditions authorised by this section are conditions imposing on the dominant provider such regulatory controls as OFCOM may from time to time direct in relation to the provision by that provider of any public electronic communications service to the end-users of that service.

(6)Where OFCOM set a condition which is authorised by this section and imposes regulatory control on tariffs or other matters to which costs are relevant, they shall also set, and apply to the dominant provider, an SMP condition which requires him, to the extent that they consider it appropriate—

(a)to use such cost accounting systems as may be determined by them;

(b)to have the use of those systems audited annually by a qualified auditor; and

(c)to publish an annual statement about compliance by the dominant provider with the obligations imposed by virtue of paragraph (a).

(7)It shall be the duty of OFCOM to provide the European Commission with all such information as the Commission requires them to provide about—

(a)conditions authorised by this section that are set by OFCOM; and

(b)the cost accounting systems used, by the persons to whom those conditions apply, in relation to the services regulated in accordance with the conditions.

(8)In this section “qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor.

92Conditions about leased linesE+W+S+N.I.

(1)This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market; and

(b)it appears to OFCOM that the market in relation to which that market power determination has been made is a market relating to the provision of any such leased lines as are for the time being identified by the European Commission in the List of Standards published in the Official Journal of the European Communities.

(2)It shall be the duty of OFCOM to set, and to apply to the dominant provider, such SMP conditions authorised by this section as they consider appropriate.

(3)The SMP conditions authorised by this section are conditions for applying, so far as required by the provisions for the time being contained in Annex VII to the Universal Service Directive, the principles of non-discrimination, cost orientation and transparency in relation to the leased lines identified as mentioned in subsection (1).

(4)In this section “leased line” means an electronic communications service the provision of which consists in the reservation of a fixed amount of transmission capacity between fixed points on the same or different electronic communications networks.

SMP apparatus conditions: subject-matterE+W+S+N.I.

93Conditions about apparatus supplyE+W+S+N.I.

(1)Where OFCOM have made a determination that a person (“the dominant supplier”) has significant market power in an identified apparatus market, they may—

(a)set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the supply of electronic communications apparatus; and

(b)apply those conditions to that person.

(2)This section authorises the setting of SMP conditions of each of the following descriptions—

(a)conditions requiring the dominant supplier to maintain such a separation for accounting purposes between matters relating to the supply of electronic communications apparatus and other matters as may be described in the conditions;

(b)conditions imposing requirements about the accounting methods to be used in maintaining the separation; and

(c)conditions imposing such rules as OFCOM may make, for the purpose of securing the maintenance of the separation, about the use of cost accounting systems.

(3)This section also authorises the setting of SMP conditions imposing price controls in relation to the hiring of telephones which are hardwired to an electronic communications network.

(4)Conditions set under this section must not make provision in relation to the supply of electronic communications apparatus unless the apparatus is of a description of apparatus as respects the supply of which the dominant supplier has been found to have significant market power.

(5)For the purposes of this section a telephone is hardwired to an electronic communications network where, in order for it to be used with that network—

(a)it has to be physically attached to apparatus comprised in the network; and

(b)the attachment has to be effected by a process that requires the use of a tool.

Enforcement of conditionsE+W+S+N.I.

94Notification of contravention of conditionsE+W+S+N.I.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a condition set under section 45, they may give that person a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM;

(b)specifies the condition and contravention in respect of which that determination has been made; and

(c)specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

(3)Those things are—

(a)making representations about the matters notified;

(b)complying with notified conditions of which he remains in contravention; and

(c)remedying the consequences of notified contraventions.

(4)Subject to subsections (5) to (7) and section 98(3), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(5)OFCOM may, if they think fit, allow a longer period for doing those things either—

(a)by specifying a longer period in the notification; or

(b)by subsequently, on one or more occasions, extending the specified period.

(6)The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(7)The person notified shall also have a shorter period if—

(a)OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

(b)they have determined that, in those circumstances, a shorter period would be appropriate; and

(c)the shorter period has been specified in the notification.

(8)A notification under this section—

(a)may be given in respect of more than one contravention; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(9)Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

(a)the contravention is one occurring after the time of the giving of the earlier notification;

(b)the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c)the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

(10)OFCOM must not give a notification under this section in a case in which—

(a)they decide that a more appropriate way of proceeding in relation to the contravention in question would be under the Competition Act 1998 (c. 41); and

(b)they publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of the persons who, in their opinion, are likely to be affected by it.

(11)For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same condition; and

(b)the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 95(2) or 96(2) that the contravention to which the previous notification related did occur.

95Enforcement notification for contravention of conditionsE+W+S+N.I.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 94;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

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

(2)OFCOM may give the notified provider an enforcement notification if they are satisfied—

(a)that he has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and

(b)that he has not, during the period allowed under that section, taken all such steps as they consider appropriate—

(i)for complying with that condition; and

(ii)for remedying the consequences of the notified contravention of that condition.

(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 condition as may be specified in the notification;

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

(b)must fix a reasonable period for the taking of the steps 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—

(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.

96Penalties for contravention of conditionsE+W+S+N.I.

(1)This section applies (in addition to section 95) where—

(a)a person (“the notified provider”) has been given a notification under section 94;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

(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, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and

(b)has not, during the period allowed under that section, taken the steps OFCOM consider appropriate—

(i)for complying with the notified condition; and

(ii)for remedying the consequences of the notified contravention of that condition.

(3)Where a notification under section 94 relates to more than one contravention, 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 in respect of the period of contravention specified in the notification.

(5)OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 95 in respect of the notified contravention.

(6)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 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—

(a)must be paid to OFCOM; and

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

97Amount of penalty under s. 96E+W+S+N.I.

(1)The amount of a penalty imposed under section 96 is to be such amount not exceeding ten per cent. of the turnover of the notified provider’s relevant business for the relevant period as OFCOM determine to be—

(a)appropriate; and

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

(2)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 conditions contraventions of which have been notified to him under section 94; and

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

(3)For the purposes of this section—

(a)the turnover of a person’s relevant business for a period shall be calculated in accordance with such rules as may be set out by order made by the Secretary of State; and

(b)provision may also be made by such an order for determining what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made.

(4)No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5)In this section—

  • relevant business” means (subject to the provisions of an order under subsection (3) and to subsections (6) and (7)) so much of any business carried on by the notified provider as consists in any one or more of the following—

    (a)

    the provision of an electronic communications network;

    (b)

    the provision of an electronic communications service;

    (c)

    the making available of associated facilities;

    (d)

    the supply of directories for use in connection with the use of such a network or service;

    (e)

    the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service;

    (f)

    any business not falling within any of the preceding paragraphs which is carried on in association with any business in respect of which any access-related condition is applied to the person carrying it on;

  • relevant period”, in relation to a contravention by a person of a condition set under section 45, means—

    (a)

    except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 94;

    (b)

    in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; and

    (c)

    in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.

(6)In the case of a contravention of an SMP apparatus condition the relevant business is so much of any business carried on by the person in respect of whose contravention the penalty is imposed as consists in the supply of electronic communications apparatus.

(7)So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—

(a)a contravention of an access-related condition imposed in respect of that business; or

(b)a contravention of an enforcement notification given under section 95 relating to such a condition.

(8)In this section “the notified provider” has the same meaning as in section 96.

98Power to deal with urgent casesE+W+S+N.I.

(1)This section applies where OFCOM determine—

(a)that they are entitled to give a notification under section 94 with respect to a contravention by a person (“the contravening provider”) of a condition set under section 45, other than an SMP apparatus condition;

(b)that there are reasonable grounds for suspecting that the case is an urgent case; and

(c)that the urgency of the case makes it appropriate for OFCOM to take action under this section.

(2)A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates 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 (other than the contravening provider) 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 services or associated facilities.

(3)OFCOM may, in a notification under section 94 with respect to the contravention, specify a period of less than one month for doing the things mentioned in subsection (3) of that section.

(4)OFCOM shall also have power to give to the contravening provider—

(a)a direction that his entitlement 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 direction.

(5)A direction under subsection (4)—

(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.

(6)A direction under subsection (4)—

(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 his customers.

(7)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.

(8)OFCOM have power to revoke a direction given under subsection (4)—

(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.

99Confirmation of directions under s. 98E+W+S+N.I.

(1)As soon as reasonably practicable after giving a direction under section 98(4), OFCOM must give the person to whom it is given—

(a)an opportunity of making representations to them about the grounds on which it was given and its effect; and

(b)an opportunity of proposing steps to remedy the situation.

(2)As soon as practicable after the period allowed by OFCOM for making those representations has ended, they must determine—

(a)whether the contravention providing the grounds for the giving of the direction did occur; and

(b)whether the circumstances made it an urgent case justifying the giving of the direction.

(3)If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(4)If not, they must exercise their power to revoke it.

(5)As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.

(6)Conditions included in a direction by virtue of section 98(7) have effect only if the direction is confirmed.

100Suspending service provision for contraventions of conditionsE+W+S+N.I.

(1)OFCOM may give a direction under this section to a person who is a communications provider or makes associated facilities available (“the contravening provider”) if they are satisfied—

(a)that he is or has been in serious and repeated contravention of conditions set under section 45, other than an SMP apparatus condition;

(b)that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 or both, to secure compliance with the contravened conditions has failed; and

(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 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 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 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)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—

(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 of conditions set under section 45 to the extent that—

(a)in the case of a previous notification given to that person under section section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

(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 contraventions of a condition set under section 45; and

(c)the previous notification and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

101Suspending apparatus supply for contraventions of conditionsE+W+S+N.I.

(1)OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—

(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 95 or both, to secure compliance with the contravened conditions has failed; and

(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 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 provides, 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)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 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

(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—

(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 of SMP apparatus conditions to the extent that—

(a)in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

(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 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 or different contraventions).

102Procedure for directions under ss. 100 and 101E+W+S+N.I.

(1)Except in an urgent case, OFCOM are not to give a direction under section 100 or 101 unless they have—

(a)notified the contravening provider or contravening supplier 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

(c)considered every representation and proposal made to them during the 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 100 or 101 in an urgent case, OFCOM must, provide the contravening provider or contravening supplier with an opportunity of—

(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 question fall within subsection (5), to allow time, before giving a direction under section 100 or 101, for the making and consideration of representations; and

(b)decide for that reason to act in accordance with subsection (3), instead of subsection (1).

(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 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 services or associated facilities.

(6)In this section—

  • contravening provider” has the same meaning as in section 100; and

  • contravening supplier” has the same meaning as in section 101.

103Enforcement of directions under ss. 98, 100 and 101E+W+S+N.I.

(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 98(4) or 100; or

(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 101; or

(b)in contravention of a restriction contained in such a direction.

(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 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 98, 100 or 101 as they apply in relation to a contravention of conditions set under section 45.

104Civil liability for breach of conditions or enforcement notificationE+W+S+N.I.

(1)The obligation of a person to comply with—

(a)the conditions set under section 45 which apply to him,

(b)requirements imposed on him by an enforcement notification under section 95, and

(c)the conditions imposed by a direction under section 98 or 100,

shall be a duty owed to every person who may be affected by a contravention 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—

(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 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).

(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 issuesE+W+S+N.I.

105Consideration and determination of network access questionsE+W+S+N.I.

(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 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 73(2) or (4); and

(b)SMP services conditions authorised by section 87.

(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 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 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 may be provided in a particular case.

Electronic communications codeE+W+S+N.I.

106Application of the electronic communications codeE+W+S+N.I.

(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 (c. 12) for 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 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 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 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 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 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).

(7)In this section “conduit” includes a tunnel, subway, tube or pipe.

107Procedure for directions applying codeE+W+S+N.I.

(1)OFCOM are not to give a direction applying the electronic communications code in any person’s case except on an application made for the purpose by that person.

(2)If OFCOM publish a notification setting out their requirements with respect to—

(a)the content of an application for a direction applying the electronic communications code, and

(b)the manner in which such an application is to be made,

such an application must be made in accordance with the requirements for the time being in force.

(3)OFCOM may—

(a)from time to time review the requirements for the time being in force for the purposes of subsection (2); and

(b)on any such review, modify them in such manner as they think fit by giving a notification of the revised requirements.

(4)In considering whether to apply the electronic communications code in any person’s case, OFCOM must have regard, in particular, to each of the following matters—

(a)the benefit to the public of the electronic communications network or conduit system by reference to which the code is to be applied to that person;

(b)the practicability of the provision of that network or system without the application of the code;

(c)the need to encourage the sharing of the use of electronic communications apparatus;

(d)whether the person in whose case it is proposed to apply the code will be able to meet liabilities arising as a consequence of—

(i)the application of the code in his case; and

(ii)any conduct of his in relation to the matters with which the code deals.

(5)For the purposes of subsections (6) and (7) of section 3 OFCOM’s duty under subsection (4) ranks equally with their duties under that section.

(6)Before giving a direction under section 106, OFCOM must—

(a)publish a notification of their proposal to give the direction; and

(b)consider any representations about that proposal that are made to them within the period specified in the notification.

(7)A notification for the purposes of subsection (6)(a) must contain the following—

(a)a statement of OFCOM’s proposal;

(b)a statement of their reasons for that proposal;

(c)a statement of the period within which representations may be made to them about the proposal.

(8)The statement of OFCOM’s proposal must—

(a)contain a statement that they propose to apply the code in the case of the person in question;

(b)set out any proposals of theirs to impose terms under section 106(5);

but this subsection is subject to sections 113(7) and 115(5).

(9)The period specified as the period within which representations may be made must end no less than one month after the day of the publication of the notification.

(10)The publication by OFCOM of a notification for any of the purposes of this section must be a publication in such manner as OFCOM consider appropriate for bringing the notification to the attention of the persons who, in their opinion, are likely to be affected by it.

108Register of persons in whose case code appliesE+W+S+N.I.

(1)It shall be the duty of OFCOM to establish and maintain a register of persons in whose case the electronic communications code applies by virtue of a direction under section 106.

(2)OFCOM must record in the register every direction given under that section.

(3)Information recorded in the register must be 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

(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 a publication 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).

109Restrictions and conditions subject to which code appliesE+W+S+N.I.

(1)Where the electronic communications code is applied in any person’s case by a direction given by OFCOM, that code is to have effect in that person’s case subject to such restrictions and conditions as may be contained in regulations made by the Secretary of State.

(2)In exercising his power to make regulations under this section it shall be the duty of the Secretary of State to have regard to each of the following—

(a)the duties imposed on OFCOM by sections 3 and 4;

(b)the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside;

(c)the need to ensure that highways are not damaged or obstructed, and traffic not interfered with, to any greater extent than is reasonably necessary;

(d)the need to encourage the sharing of the use of electronic communications apparatus;

(e)the need to secure that a person in whose case the code is applied will be able to meet liabilities arising as a consequence of—

(i)the application of the code in his case; and

(ii)any conduct of his in relation to the matters with which the code deals.

(3)The power of the Secretary of State to provide by regulations for the restrictions and conditions subject to which the electronic communications code has effect includes power to provide for restrictions and conditions which are framed by reference to any one or more of the following—

(a)the making of a determination in accordance with the regulations by a person specified in the regulations;

(b)the giving of an approval or consent by a person so specified; or

(c)the opinion of any person.

(4)Before making any regulations under this section, the Secretary of State must consult—

(a)OFCOM; and

(b)such other persons as he considers appropriate.

110Enforcement of restrictions and conditionsE+W+S+N.I.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person in whose case the electronic communications code applies is contravening, or has contravened, a requirement imposed by virtue of any restrictions or conditions under section 109, they may give him a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM;

(b)specifies the requirement and the contravention in respect of which that determination has been made; and

(c)specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

(3)Those things are—

(a)making representations about the matters notified;

(b)complying with any notified requirement of which he remains in contravention; and

(c)remedying the consequences of notified contraventions.

(4)Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(5)OFCOM may, if they think fit, allow a longer period for doing those things either—

(a)by specifying a longer period in the notification; or

(b)by subsequently, on one or more occasions, extending the specified period.

(6)The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(7)The person notified shall also have a shorter period if—

(a)OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

(b)they have determined that, in those circumstances, a shorter period would be appropriate; and

(c)the shorter period has been specified in the notification.

(8)A notification under this section—

(a)may be given in respect of more than one contravention; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(9)Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—

(a)the contravention is one occurring after the time of the giving of the earlier notification;

(b)the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c)the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

(10)For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same requirement; and

(b)the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 111(2) or 112(2) that the contravention to which the previous notification related did occur.

111Enforcement notification for contravention of code restrictionsE+W+S+N.I.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 110;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

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

(2)OFCOM may give the notified provider an enforcement notification if they are satisfied—

(a)that he has been in contravention, in one or more of the respects notified, of a requirement specified in the notification under section 110; and

(b)that he has not, during the period allowed under section 110, 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.

(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 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

(b)must fix a reasonable period for the taking of the steps 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—

(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.

112Penalties for contravention of code restrictionsE+W+S+N.I.

(1)This section applies (in addition to section 111) where—

(a)a person (“the notified provider”) has been given a notification under section 110;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

(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 110; and

(b)has not, during the period allowed under that section, taken all such 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 110 relates to more than one contravention, 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.

(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

(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 110; 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 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

(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).

(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.

113Suspension of application of codeE+W+S+N.I.

(1)OFCOM may suspend the application of the electronic communications code 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 38 (whether in respect of the whole or a part of the charges);

(b)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;

(c)that an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

(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—

(a)the electronic communications code has been applied by a direction under section 106 in any person’s case; and

(b)OFCOM give a direction under section 42, 100, 132 or 140 for the suspension or restriction of that person’s entitlement to provide an electronic communications network, or a part of such a network.

(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.

(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 106 in any person’s case; and

(b)that person is a person in whose case there have been repeated and serious contraventions of requirements imposed by virtue of any restrictions or conditions under section 109.

(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 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

(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 case must be by a further direction given to that person by OFCOM under section 106.

(7)The statement required by section 107(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.

(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 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 suspension or restriction by reference to which the application of the code was suspended under subsection (2).

(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 communications code does not, except so far as otherwise provided by a scheme contained in an order under section 117—

(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;

(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 42 applies for the purposes of subsection (1) as it applies for the purposes of that section.

114Procedure for directions under s. 113E+W+S+N.I.

(1)Except in an urgent case, OFCOM are not to give a direction under section 113(4) suspending the application of the electronic communications code in the case of any person (“the operator”) unless they have—

(a)notified the operator of the proposed suspension and of the steps (if any) that they are proposing to take under section 117;

(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

(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.

(3)As soon as practicable after giving a direction under section 113 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 117 in connection with the suspension; and

(b)proposing steps for remedying the situation that has given rise to 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 circumstances appearing to OFCOM to require the suspension fall within subsection (5), to allow time, before giving a direction under section 113, for the 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—

(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 operator) 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 services or associated facilities.

115Modification and revocation of application of codeE+W+S+N.I.

(1)OFCOM may at any time modify the terms on which, by virtue of section 106(5), the code is applied in a person’s case.

(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 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 106 to the person in whose case the electronic communications code has been applied by the direction being modified or revoked.

(5)The matters required by section 107(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 106(5);

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

116Notification of cessation by person to whom code appliesE+W+S+N.I.

(1)This section applies where, by virtue of a direction under section 106, the electronic communications code applies in any person’s case for the purposes of the provision by him of—

(a)an electronic communications network which is not of a description designated for the purposes of section 33; or

(b)such a system of conduits as is mentioned in section 106(4)(b).

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

(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 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—

(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—

(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 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.

117Transitional schemes on cessation of application of codeE+W+S+N.I.

(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

(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—

(a)the suspension under section 113 of the application of the code in the former operator’s case;

(b)the revocation or modification under section 115 of the direction applying the code in his case.

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

(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;

(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 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 under the scheme as are specified in the scheme, or are of a description so specified, to be referred to, and determined by, OFCOM.

(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

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

(5)Sections 110 to 112 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 109.

(6)Section 403 applies to the power of OFCOM to make an order under this section.

118Compulsory acquisition of land etc.E+W+S+N.I.

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 such a provider) shall have effect.

119Power to give assistance in relation to certain proceedingsE+W+S+N.I.

(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 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 a direction under section 106; 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;

(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—

(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 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;

(e)arranging for the giving of any other assistance by a solicitor or counsel;

(f)any other form of assistance which OFCOM consider appropriate.

(5)Nothing in subsection (4)(d) shall be taken to affect the law and practice regulating the descriptions of persons who may appear in, conduct or defend any proceedings, or who may address the court in any proceedings.

(6)In so far as expenses are incurred by OFCOM in providing the applicant with assistance under this section, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of OFCOM—

(a)on any costs or expenses which (whether by virtue of a judgment or order of a court, or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and

(b)so far as relates to costs or expenses, on the applicant’s rights under a compromise or settlement arrived at in connection with that matter to avoid proceedings, or to bring them to an end.

(7)A charge conferred by subsection (6) is subject to—

(a)any charge imposed by section 10(7) of the Access to Justice Act 1999 (c. 22) and any provision made by or under Part 1 of that Act for the payment of any sum to the Legal Services Commission;

(b)any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 (c. 47); or

(c)any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).

Regulation of premium rate servicesE+W+S+N.I.

120Conditions regulating premium rate servicesE+W+S+N.I.

(1)OFCOM shall have the power, for the purpose of regulating the provision, content, promotion and marketing of premium rate services, to set conditions under this section that bind the persons to whom they are applied.

(2)Conditions under this section may be applied either—

(a)generally to every person who provides a premium rate service; or

(b)to every person who is of a specified description of such persons, or who provides a specified description of such services.

(3)The only provision that may be made by conditions under this section is provision requiring the person to whom the condition applies to comply, to the extent required by the condition, with—

(a)directions given in accordance with an approved code by the enforcement authority and for the purpose of enforcing its provisions; and

(b)if there is no such code, the provisions of the order for the time being in force under section 122.

(4)The power to set a condition under this section includes power to modify or revoke the conditions for the time being in force under this section.

(5)Sections 47 and 48 apply to the setting, modification and revocation of a condition under this section as they apply to the setting, modification and revocation of a condition under section 45.

(6)OFCOM must send a copy of every notification published under section 48(1) with respect to a condition under this section to the Secretary of State.

(7)A service is a premium rate service for the purposes of this Chapter if—

(a)it is a service falling within subsection (8);

(b)there is a charge for the provision of the service;

(c)the charge is required to be paid to a person providing an electronic communications service by means of which the service in question is provided; and

(d)that charge is imposed in the form of a charge made by that person for the use of the electronic communications service.

(8)A service falls within this subsection if its provision consists in—

(a)the provision of the contents of communications transmitted by means of an electronic communications network; or

(b)allowing the user of an electronic communications service to make use, by the making of a transmission by means of that service, of a facility made available to the users of the electronic communications service.

(9)For the purposes of this Chapter a person provides a premium rate service (“the relevant service”) if—

(a)he provides the contents of the relevant service;

(b)he exercises editorial control over the contents of the relevant service;

(c)he is a person who packages together the contents of the relevant service for the purpose of facilitating its provision;

(d)he makes available a facility comprised in the relevant service; or

(e)he falls within subsection (10), (11) or (12).

(10)A person falls within this subsection if—

(a)he is the provider of an electronic communications service used for the provision of the relevant service; and

(b)under arrangements made with a person who is a provider of the relevant service falling within subsection (9)(a) to (d), he is entitled to retain some or all of the charges received by him in respect of the provision of the relevant service or of the use of his electronic communications service for the purposes of the relevant service.

(11)A person falls within this subsection if—

(a)he is the provider of an electronic communications network used for the provision of the relevant service; and

(b)an agreement relating to the use of the network for the provision of that service subsists between the provider of the network and a person who is a provider of the relevant service falling within subsection (9)(a) to (d).

(12)A person falls within this subsection if—

(a)he is the provider of an electronic communications network used for the provision of the relevant service; and

(b)the use of that network for the provision of premium rate services, or of services that include or may include premium rate services, is authorised by an agreement subsisting between that person and either an intermediary service provider or a person who is a provider of the relevant service by virtue of subsection (10) or (11).

(13)Where one or more persons are employed or engaged under the direction of another to do any of the things mentioned in subsection (9)(a) to (d), only that other person shall be a provider of the relevant service for the purposes of this Chapter.

(14)References in this section to a facility include, in particular, references to—

(a)a facility for making a payment for goods or services;

(b)a facility for entering a competition or claiming a prize; and

(c)a facility for registering a vote or recording a preference.

(15)In this section—

  • approved code” means a code for the time being approved under section 121;

  • enforcement authority”, in relation to such a code, means the person who under the code has the function of enforcing it; and

  • intermediary service provider” means a person who—

    (a)

    provides an electronic communications service used for the provision of the relevant service or an electronic communications network so used; and

    (b)

    is a party to an agreement with—

    (i)

    a provider of the relevant service falling within subsection (9)(a) to (d), or

    (ii)

    another intermediary service provider,

    which relates to the use of that electronic communications service or network for the provision of premium rate services, or of services that include or may include premium rate services.

121Approval of code for premium rate servicesE+W+S+N.I.

(1)If it appears to OFCOM—

(a)that a code has been made by any person for regulating the provision and contents of premium rate services, and the facilities made available in the provision of such services;

(b)that the code contains provision for regulating, to such extent (if any) as they think fit, the arrangements made by the providers of premium rate services for promoting and marketing those services; and

(c)that it would be appropriate for them to approve that code for the purposes of section 120,

they may approve that code for those purposes.

(2)OFCOM are not to approve a code for those purposes unless they are satisfied—

(a)that there is a person who, under the code, has the function of administering and enforcing it; and

(b)that that person is sufficiently independent of the providers of premium rate services;

(c)that adequate arrangements are in force for funding the activities of that person in relation to the code;

(d)that the provisions of the code are objectively justifiable in relation to the services to which it relates;

(e)that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(f)that those provisions are proportionate to what they are intended to achieve; and

(g)that, in relation to what those provisions are intended to achieve, they are transparent.

(3)OFCOM are not for those purposes to approve so much of a code as imposes an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless they are satisfied that the obligation—

(a)arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;

(b)arises only after a notice identifying the service and setting out respects in which requirements of the code have been contravened in relation to it has been given to the relevant provider by the person responsible for enforcing the code; and

(c)is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.

(4)The provision that may be contained in a code and approved under this section includes, in particular, provision about the pricing of premium rate services and provision for the enforcement of the code.

(5)The provision for the enforcement of a code that may be approved under this section includes—

(a)provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 123(2);

(b)provision requiring a provider of a premium rate service to secure that the provision of the service is suspended or otherwise ceases or is restricted in any respect;

(c)provision for the imposition on a person, in respect of a contravention of the code, of a temporary or permanent prohibition or restriction on his working in connection with the provision of premium rate services or, in the case of a body corporate, on its providing such services or on its carrying on other activities in connection with their provision.

(6)OFCOM may, at any time, for the purposes of section 120—

(a)approve modifications that have been made to an approved code; or

(b)withdraw their approval from an approved code.

(7)Where OFCOM give or withdraw an approval for the purposes of section 120, they must give notification of their approval or of its withdrawal.

(8)The notification must be published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the approval or withdrawal.

122Orders by OFCOM in the absence of a code under s. 121E+W+S+N.I.

(1)OFCOM may make an order under this section if, at any time, they consider that there is no code in force to which they think it would be appropriate to give, or to continue to give, their approval under section 121.

(2)An order under this section may make such of the following provisions as OFCOM think fit—

(a)provision imposing requirements with respect to the provision and contents of premium rate services, and with respect to the facilities made available in the provision of such services (including provision about pricing);

(b)provision imposing requirements with respect to the arrangements made by the providers of premium rate services for the promotion and marketing of those services;

(c)provision for the enforcement of requirements imposed by virtue of paragraph (a) or (b);

(d)provision making other arrangements for the purposes of those requirements.

(3)The power to make provision by an order under this section includes, in particular—

(a)power to establish a body corporate with the capacity to make its own rules and to establish its own procedures;

(b)power to determine the jurisdiction of a body established by such an order or, for the purposes of the order, of any other person;

(c)power to confer jurisdiction with respect to any matter on OFCOM themselves;

(d)power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e)power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order;

(f)power to make provision falling within section 121(5)(c) for the enforcement of the provisions of the order; and

(g)power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4)An order under this section may require such providers of premium rate services as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a)the establishment and maintenance, in accordance with such an order, of any body corporate or procedure; or

(b)the making of other arrangements for the purposes of the requirements of such an order.

(5)An order under this section is not to impose an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless the obligation—

(a)arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;

(b)arises only after a notice identifying the service and setting out respects in which requirements of the order have been contravened in relation to it has been given to the relevant provider by OFCOM; and

(c)is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.

(6)The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(7)Section 403 applies to the power of OFCOM to make an order under this section.

(8)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

123Enforcement of s. 120 conditionsE+W+S+N.I.

(1)Sections 94 to 96 apply in relation to a contravention of conditions set under section 120 as they apply in relation to a contravention of a condition set under section 45.

(2)The amount of the penalty imposed under section 96 as applied by this section is to be such amount not exceeding £100,000 as OFCOM determine to be—

(a)appropriate; and

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

(3)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 conditions contraventions of which have been notified to him under section 94 (as applied); and

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

(4)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 (2).

(5)No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

124Suspending service provision for contraventions of s. 120 conditionsE+W+S+N.I.

(1)OFCOM may give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—

(a)that he is or has been in serious and repeated contravention of conditions set under section 120;

(b)that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 (as applied by section 123) or both, to secure compliance with the contravened conditions has failed;

(c)that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions; and

(d)that the giving of the direction is required for reasons of public policy.

(2)OFCOM may also give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—

(a)that he is, or has been, in contravention of conditions set under section 120 in respect of a premium rate service;

(b)that the circumstances of the contravention make it appropriate for OFCOM to suspend or restrict the provision of premium rate services provided by the contravening provider without the conditions set out in subsection (1) being satisfied; and

(c)that in those circumstances the giving of the direction is urgently required for reasons of public policy.

(3)A direction under this section is—

(a)a direction to the contravening provider to secure the suspension of the provision of premium rate services provided by him; or

(b)a direction requiring him to secure compliance with restrictions, set out in the direction, on the provision of such services.

(4)A direction under this section—

(a)must specify the services 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.

(5)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.

(6)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.

(7)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—

(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 services as they may determine.

(8)Sections 102 and 103 apply in the case of a direction under this section as they apply in the case of a direction under section 100, but as if references in section 103(1) to an electronic communications network or electronic communications service were references to a premium rate service.

(9)For the purposes of this section there are repeated contraventions by a person of conditions set under section 120 to the extent that—

(a)in the case of a previous notification given to that person under section section 94 (as applied by section 123), OFCOM have determined for the purposes of section 95(2) or 96(2) (as so applied) 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 contraventions of a condition set under section 120.

(10)For the purposes of this section the seriousness of repeated contraventions of conditions set under section 120 has to be determined by reference to the seriousness of the contraventions of the approved code or order by reference to which the conditions have effect.

Offences relating to networks and servicesE+W+S+N.I.

125Dishonestly obtaining electronic communications servicesE+W+S+N.I.

(1)A person who—

(a)dishonestly obtains an electronic communications service, and

(b)does so with intent to avoid payment of a charge applicable to the provision of that service,

is guilty of an offence.

(2)It is not an offence under this section to obtain a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly obtaining a broadcasting or cable programme service provided from a place in the UK).

(3)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

126Possession or supply of apparatus etc. for contravening s. 125E+W+S+N.I.

(1)A person is guilty of an offence if, with an intention falling within subsection (3), he has in his possession or under his control anything that may be used—

(a)for obtaining an electronic communications service; or

(b)in connection with obtaining such a service.

(2)A person is guilty of an offence if—

(a)he supplies or offers to supply anything which may be used as mentioned in subsection (1); and

(b)he knows or believes that the intentions in relation to that thing of the person to whom it is supplied or offered fall within subsection (3).

(3)A person’s intentions fall within this subsection if he intends—

(a)to use the thing to obtain an electronic communications service dishonestly;

(b)to use the thing for a purpose connected with the dishonest obtaining of such a service;

(c)dishonestly to allow the thing to be used to obtain such a service; or

(d)to allow the thing to be used for a purpose connected with the dishonest obtaining of such a service.

(4)An intention does not fall within subsection (3) if it relates exclusively to the obtaining of a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48).

(5)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; and

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(6)In this section, references, in the case of a thing used for recording data, to the use of that thing include references to the use of data recorded by it.

127Improper use of public electronic communications networkE+W+S+N.I.

(1)A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a)sends by means of a public electronic communications network, a message that he knows to be false,

(b)causes such a message to be sent; or

(c)persistently makes use of a public electronic communications network.

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Persistent misuse of network or serviceE+W+S+N.I.

128Notification of misuse of networks and servicesE+W+S+N.I.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications services, they may give that person a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM;

(b)specifies the use that OFCOM consider constitutes persistent misuse; and

(c)specifies the period during which the person notified has an opportunity of making representations about the matters notified.

(3)That period must not be less than the following—

(a)in an urgent case, seven days; and

(b)in any other case, one month.

(4)A case is an urgent case for the purposes of subsection (3) if OFCOM consider—

(a)that the misuse in question is continuing; and

(b)that the harm it causes makes it necessary for it to be stopped as soon as possible.

(5)For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—

(a)the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or

(b)he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

(6)For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—

(a)a pattern of behaviour or practice; or

(b)recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

(7)For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—

(a)that the misuse was in relation to a network on some occasions and in relation to a service on others;

(b)that different networks or services were involved on different occasions; and

(c)that the persons who were or were likely to suffer annoyance inconvenience or anxiety were different on different occasions.

(8)If he considers that appropriate alternative means of dealing with it exists, the Secretary of State may by order provide that a use of a description specified in the order is not to be treated for the purposes of this Chapter as a misuse of an electronic communications network or electronic communications service.

129Enforcement notifications for stopping persistent misuseE+W+S+N.I.

(1)This section applies where—

(a)a person (“the notified misuser”) has been given a notification under section 128;

(b)OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and

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

(2)OFCOM may give the notified misuser an enforcement notification if they are satisfied—

(a)that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and

(b)that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—

(i)securing that his misuse is brought to an end and is not repeated; and

(ii)remedying the consequences of the notified misuse.

(3)An enforcement notification is a notification which imposes a requirement on the notified misuser to take all such steps for—

(a)securing that his misuse is brought to an end and is not repeated, and

(b)remedying the consequences of the notified misuse,

as may be specified in the notification.

(4)A decision of OFCOM to give an enforcement notification to a person must fix a reasonable period for the taking of the steps 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—

(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.

(7)References in this section to remedying the consequences of misuse include references to paying an amount to a person—

(a)by way of compensation for loss or damage suffered by that person; or

(b)in respect of annoyance, inconvenience or anxiety to which he has been put.

130Penalties for persistent misuseE+W+S+N.I.

(1)This section applies (in addition to section 129) where—

(a)a person (“the notified misuser”) has been given a notification under section 128;

(b)OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and

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

(2)OFCOM may impose a penalty on the notified misuser if he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service.

(3)OFCOM may also impose a penalty on the notified misuser if he has contravened a requirement of an enforcement notification given in respect of the notified misuse.

(4)The amount of a penalty imposed is to be such amount not exceeding £5,000 as OFCOM determine to be—

(a)appropriate; and

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

(5)In making that determination OFCOM must have regard to—

(a)any representations made to them by the notified misuser;

(b)any steps taken by him for securing that his misuse is brought to an end and is not repeated; and

(c)any steps taken by him for remedying the consequences of the notified misuse.

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

(a)notify the person penalised; 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—

(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)It is to be possible for a person to be both liable for an offence under sections 125 to 127 and to have a penalty imposed on him under this section in respect of the same conduct.

(9)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 (4).

(10)No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

131Statement of policy on persistent misuseE+W+S+N.I.

(1)It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to the exercise of their powers under sections 128 to 130.

(2)OFCOM may from time to time revise that statement as they think fit.

(3)Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4)It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 128 to 130, to have regard to the statement for the time being in force under this section.

Powers to deal with emergenciesE+W+S+N.I.

132Powers to require suspension or restriction of a provider’s entitlementE+W+S+N.I.

(1)If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a)to protect the public from any threat to public safety or public health, or

(b)in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2)OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3)A direction under this section is—

(a)a direction that the entitlement of the relevant 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 direction.

(4)A direction under subsection (3)—

(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.

(5)A direction under subsection (3)—

(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 relevant provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(6)Those conditions may include a condition requiring the making of payments—

(a)by way of compensation for loss or damage suffered by the relevant 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.

(7)Where OFCOM give a direction under subsection (3), they shall, as soon as practicable after doing so, provide that person with an opportunity of—

(a)making representations about the effect of the direction; and

(b)proposing steps for remedying the situation.

(8)If OFCOM consider it appropriate to do so (whether in consequence of any representations or proposals made to them under subsection (3) or otherwise), they may, without revoking it, at any time modify the terms of a direction under subsection (3) in such manner as they consider appropriate.

(9)If the Secretary of State considers it appropriate to do so, he may, by a direction to OFCOM, require them to revoke a direction under subsection (3).

(10)Where OFCOM modify or revoke a direction they have given under subsection (3), they may do so—

(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.

(11)It shall be the duty of OFCOM to comply with—

(a)a requirement under subsection (9) to revoke a direction; and

(b)a requirement contained in that direction as to how they should exercise their powers under subsection (10) in the case of the required revocation.

133Enforcement of directions under s. 132E+W+S+N.I.

(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 132; or

(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 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 132 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

(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 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45.

Restrictions in leases and licencesE+W+S+N.I.

134Restrictions in leases and licencesE+W+S+N.I.

(1)This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of—

(a)the person from whom he obtains electronic communications services, or particular electronic communications services, or

(b)the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,

is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.

(2)This section also applies where—

(a)provision contained in a lease for a year or more has the effect of imposing any other prohibition or restriction on the lessee with respect to an electronic communications matter; or

(b)provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.

(3)A provision falling within subsection (1) shall have effect—

(a)as if the prohibition or restriction applied only where the lessor, licensor or other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and

(b)as if the lessor, licensor or other party were required not to withhold that consent unreasonably.

(4)A provision falling within subsection (2)(a) or (b) shall have effect—

(a)in relation to things done inside a building occupied by the lessee under the lease, or

(b)for purposes connected with the provision to the lessee of an electronic communications service,

as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.

(5)Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent—

(a)in relation to an electronic communications matter, or

(b)to the obtaining by the occupier of premises of an electronic communications service from or through a particular person,

the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.

(6)OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.

(7)References in this section to electronic communications matters are references to—

(a)the provision of an electronic communications network or electronic communications service;

(b)the connection of electronic communications apparatus to a relevant electronic communications network or of any such network to another; and

(c)the installation, maintenance, adjustment, repair, alteration or use for purposes connected with the provision of such a network or service of electronic communications apparatus.

(8)In this section—

  • alteration” has the same meaning as in the electronic communications code;

  • lease” includes—

    (a)

    a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and

    (b)

    in Scotland, a sub-lease and an agreement to grant a sub-lease,

    and “lessor” and “lessee” are to be construed accordingly;

  • relevant electronic communications network” means—

    (a)

    a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or

    (b)

    an electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.

(9)This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.

(10)This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).

(11)The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(12)Section 403 applies to the powers of OFCOM to make orders under this section.

(13)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Information provisionsE+W+S+N.I.

135Information required for purposes of Chapter 1 functionsE+W+S+N.I.

(1)OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under this Chapter.

(2)The persons falling within this subsection are—

(a)a communications provider;

(b)a person who has been a communications provider;

(c)a person who makes, or has made, any associated facilities available to others;

(d)a person, other than a communications provider, to whom a universal service condition applies or has applied;

(e)a person who supplies electronic communications apparatus;

(f)a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.

(3)The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—

(a)ascertaining whether a contravention of a condition or other requirement set or imposed by or under this Chapter has occurred or is occurring;

(b)ascertaining or verifying the charges payable by a person under section 38;

(c)ascertaining whether a provision of a condition set under section 45 which is for the time being in force continues to be effective for the purpose for which it was made;

(d)ascertaining or verifying amounts payable by virtue of a condition falling within section 51(1)(d);

(e)making a designation in accordance with regulations made under section 66;

(f)carrying out a review under section 66 or 70;

(g)identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter;

(h)ascertaining whether a question has arisen that gives rise to their duty under section 105;

(i)considering a matter in exercise of that duty;

(j)statistical purposes connected with the carrying out of any of OFCOM’s functions under this Chapter.

(4)A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(5)The powers in this section are subject to the limitations in section 137.

136Information required for related purposesE+W+S+N.I.

(1)OFCOM may require—

(a)a communications provider, or

(b)a person who makes associated facilities available to others,

to provide OFCOM with all such information as they consider necessary for the purpose specified in subsection (2).

(2)That purpose is the carrying out—

(a)with a view to publication, and

(b)in the interest of the end-users of public electronic communications services,

of comparative overviews of the quality and prices of such services.

(3)OFCOM may also require—

(a)a communications provider, or

(b)a person who makes associated facilities available to others,

to provide them, for use for such statistical purposes as they think fit, with information relating to any electronic communications network, electronic communications service or associated facilities.

(4)A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(5)The powers in this section are subject to the limitations in section 137.

137Restrictions on imposing information requirementsE+W+S+N.I.

(1)This section limits the purposes for which, and manner in which, information may be required under sections 135 and 136.

(2)OFCOM are not to require the provision of information for the purpose of ascertaining whether a contravention of a general condition has occurred, or is occurring, unless—

(a)the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint;

(b)the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the general condition in question has been complied with;

(c)the condition in question is one which OFCOM have reason to suspect is one that has been or is being contravened; or

(d)the condition in question is one falling within section 51(1)(d).

(3)OFCOM are not to require the provision of information under section 135 or 136 except—

(a)by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it; and

(b)where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions.

(4)The reasons for requiring information for statistical purposes under section 135 or 136 must set out the statistical purposes for which the information is required.

(5)Except in the case of a demand made in the manner authorised by subsection (6), a demand for information required under section 135 or 136 must be contained in a notice served on the person from whom the information is required.

(6)In the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under section 38, the demand may—

(a)be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who are described in the demand as the persons from whom the information is required; and

(b)take the form of a general demand for a person so described to provide information when specified conditions relevant to his liability to such charges are satisfied in his case.

138Notification of contravention of information requirementsE+W+S+N.I.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 135 or 136, they may give that person a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM;

(b)specifies the requirement and contravention in respect of which that determination has been made; and

(c)specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

(3)Those things are—

(a)making representations about the matters notified; and

(b)complying with any notified requirement of which he remains in contravention.

(4)Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(5)OFCOM may, if they think fit, allow a longer period for doing those things either—

(a)by specifying a longer period in the notification; or

(b)by subsequently, on one or more occasions, extending the specified period.

(6)The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(7)The person notified shall also have a shorter period if—

(a)OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

(b)they have determined that, in those circumstances, a shorter period would be appropriate; and

(c)the shorter period has been specified in the notification.

(8)A notification under this section—

(a)may be given in respect of more than one contravention; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(9)Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—

(a)the contravention is one occurring after the time of the giving of the earlier notification;

(b)the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c)the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

(10)For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same requirement; and

(b)the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 139(2) that the contravention to which the previous notification related did occur.

139Penalties for contravention of information requirementsE+W+S+N.I.

(1)This section applies where—

(a)a person (“the notified person”) has been given a notification under section 138;

(b)OFCOM have allowed the notified person an opportunity of making representations about the matters notified; and

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

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

(a)they are satisfied that he has, in one or more of the respects notified, been in contravention of the requirement notified under section 138;

(b)he has not, during the period allowed under that section, complied with the notified requirement; and

(c)no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention.

(3)Where a notification under section 138 relates to more than one contravention, 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 in respect of the period of contravention specified in the notification.

(5)The amount of a penalty imposed under this section is to be such amount not exceeding £50,000 as OFCOM determine to be both—

(a)appropriate; and

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

(6)In making that determination OFCOM must have regard to—

(a)any representations made to them by the notified person; and

(b)any steps taken by him towards complying with the requirements contraventions of which have been notified to him under section 138.

(7)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 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.

(8)A penalty imposed under this section—

(a)must be paid to OFCOM; and

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

(9)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 (5).

(10)No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

140Suspending service provision for information contraventionsE+W+S+N.I.

(1)OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

(a)that he is or has been in serious and repeated contravention of requirements imposed under sections 135 and 136, or either of them;

(b)the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM’s functions in relation to SMP apparatus conditions;

(c)that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

(d)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 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 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)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.

(7)For the purposes of this section there are repeated contraventions by a person of requirements imposed under sections 135 and 136, or either of them, to the extent that—

(a)in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(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 contraventions of such requirements;

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements or of requirements under different sections.

141Suspending apparatus supply for information contraventionsE+W+S+N.I.

(1)OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—

(a)that he is or has been in serious and repeated contravention of requirements imposed under section 135;

(b)that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

(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 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 provides, 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)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 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

(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—

(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 contraventions by a person of requirements imposed under section 135 are repeated contraventions if—

(a)in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(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 contraventions of such requirements;

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements.

142Procedure for directions under ss. 140 and 141E+W+S+N.I.

(1)Except in an urgent case, OFCOM are not to give a direction under section 140 or 141 unless they have—

(a)notified the contravening provider or contravening supplier 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

(c)considered every representation and proposal made to them during the 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 140 or 141 in an urgent case, OFCOM must provide the contravening provider or contravening supplier with an opportunity of—

(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 question fall within subsection (5), to allow time, before giving a direction under section 140 or 141, for the making and consideration of representations; and

(b)decide for that reason to act in accordance with subsection (3), instead of subsection (1).

(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 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 services or associated facilities.

(6)In this section—

  • contravening provider” has the same meaning as in section 140; and

  • contravening supplier” has the same meaning as in section 141.

143Enforcement of directions under ss. 140 and 141E+W+S+N.I.

(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 140; or

(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 141; or

(b)in contravention of a restriction contained in such a direction.

(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 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 140 or 141 as they apply in relation to a contravention of conditions set under section 45.

144Offences in connection with information requirementsE+W+S+N.I.

(1)A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 is guilty of an offence and shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(2)In proceedings against a person for an offence under subsection (1) it shall be a defence for that person to show—

(a)that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but

(b)that he has taken all reasonable steps to provide the required information after the end of that period.

(3)A person is guilty of an offence if—

(a)in pursuance of any requirement under section 135 or 136, he provides any information that is false in any material particular; and

(b)at the time he provides it, he either knows it to be false or is reckless as to whether or not it is false.

(4)A person guilty of an offence under subsection (3) shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(5)Proceedings for an offence under subsection (1) may be brought in respect of a contravention by a person of a requirement imposed under section 135 or 136 only if—

(a)OFCOM have given the person a notification under section 138 in respect of that contravention;

(b)the period allowed under that section for doing the things mentioned in subsection (3) of that section has expired without the required information having been provided; and

(c)OFCOM have not imposed a financial penalty under section 139 in respect of that contravention.

145Statement of policy on information gatheringE+W+S+N.I.

(1)It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to—

(a)the exercise of their powers under sections 135 to 136; and

(b)the uses to which they are proposing to put information obtained under those sections.

(2)OFCOM may from time to time revise that statement as they think fit.

(3)Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4)It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 135 to 144 to have regard to the statement for the time being in force under this section.

146Provision of information by OFCOME+W+S+N.I.

(1)OFCOM must comply with a request made by a person for the purposes of this section—

(a)to notify the person whether or not a notification is required to be submitted by him under section 33;

(b)to notify the person whether a notification submitted by him for the purposes of that section satisfies the requirements of this Chapter;

(c)to provide the person with such information about his rights as may be necessary for the purpose of facilitating the negotiation by him of his right to network access; or

(d)to provide the person with such information as they consider necessary to enable the applicant to apply for a direction under section 106 to be made in his case.

(2)A request for the purposes of this section must be made in such manner as OFCOM may require.

(3)OFCOM are not required to comply with a request under this section if (without having been asked to do so) they have already given that person the notification or information for which he is asking.

(4)Any notification or information which under subsection (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the request for the notification or information was made to OFCOM.

Abolition of telecommunications licensing etc.E+W+S+N.I.

147Repeal of provisions of Telecommunications Act 1984E+W+S+N.I.

The following provisions of the Telecommunications Act 1984 (c. 12) shall cease to have effect—

(a)sections 5 to 8 (licensing provisions);

(b)sections 9 to 11 (public telecommunications systems);

(c)sections 12 to 15 (modification of licences);

(d)sections 16 to 19 (enforcement of licences); and

(e)sections 27A to 27L (standards of performance of designated public telecommunications operators).

Local authority powers in relation to networks and servicesE+W+S+N.I.

148Powers of local authorities in connection with networksE+W+S+N.I.

(1)A local authority may borrow money for the purpose of providing a public electronic communications network or public electronic communications service.

(2)A local authority may—

(a)provide a public electronic communications network part of which is outside their area; and

(b)provide a public electronic communications service even if some of the persons to whom they provide the service are outside their area.

(3)In this section, a “local authority” means—

(a)in relation to England, a London borough council or a district council;

(b)in relation to Wales, a county council or a county borough council;

(c)in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).

Grants for networks and services in Northern IrelandE+W+S+N.I.

149Grants by Department of Enterprise, Trade and InvestmentN.I.

(1)The Department of Enterprise, Trade and Investment may, in accordance with this section, make payments to persons engaged in, or in commercial activities connected with—

(a)the provision of electronic communications networks and electronic communications services in Northern Ireland; or

(b)improving the extent, quality and reliability of such networks or services.

(2)A payment shall not be made under this section unless in the opinion of the Department of Enterprise, Trade and Investment—

(a)the making of the payment is likely to achieve—

(i)one or more of the purposes set out in subsection (1); and

(ii)any other purposes prescribed by regulations made by that Department with the approval of the Department of Finance and Personnel; and

(b)the amount of the payment is reasonable having regard to all the circumstances.

(3)Payments under this section shall—

(a)be of such amounts, and

(b)be made subject to such conditions (including conditions as to repayment),

as the Department of Enterprise, Trade and Investment may determine.

(4)This section extends only to Northern Ireland.

150Grants by district councilsE+W+S+N.I.

(1)This section applies where a district council in Northern Ireland consider that it would be for the benefit of their area—

(a)for a public electronic communications network or electronic communications service to be provided by a particular person;

(b)for facilities to be made available by a particular person for the purposes of, or in connection with, the provision of such a network or service; or

(c)for such a network or service that is being provided by a particular person, or for any such facilities that are being so made available by a particular person, to continue to be provided or made available.

(2)The district council may—

(a)undertake to pay to that person, and

(b)pay him,

whatever sums they think appropriate for, or towards, compensating him for losses sustained in the provision of the network or service or in making the facilities available.

(3)For the purposes of this section it is immaterial—

(a)in the case of a network, whether any part of the network is situated in the council’s area; and

(b)in the case of a service or facility, whether any of the persons to whom the service or facility is provided or made available are in that area.

Interpretation of Chapter 1E+W+S+N.I.

151Interpretation of Chapter 1E+W+S+N.I.

(1)In this Chapter—

  • the Access Directive” means Directive 2002/19/EC of the European Parliament and of the Council on access to, and interconnection of, electronic communications networks and associated facilities;

  • access-related condition” means a condition set as an access-related condition under section 45;

  • allocation” and “adoption”, in relation to telephone numbers, and cognate expressions, are to be construed in accordance with section 56;

  • apparatus market”, in relation to a market power determination, is to be construed in accordance with section 46(9)(b);

  • designated universal service provider” means a person who is for the time being designated in accordance with regulations under section 66 as a person to whom universal service conditions are applicable;

  • electronic communications apparatus”—

    (a)

    in relation to SMP apparatus conditions and in section 141, means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals (within the meaning of section 32) that are transmitted by means of an electronic communications network; and

    (b)

    in all other contexts, has the same meaning as in the electronic communications code;

  • the electronic communications code” has the meaning given by section 106(1);

  • end-user”, in relation to a public electronic communications service, means—

    (a)

    a person who, otherwise than as a communications provider, is a customer of the provider of that service;

    (b)

    a person who makes use of the service otherwise than as a communications provider; or

    (c)

    a person who may be authorised, by a person falling within paragraph (a), so to make use of the service;

  • the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services;

  • general condition” means a condition set as a general condition under section 45;

  • interconnection” is to be construed in accordance with subsection (2);

  • market power determination” means—

    (a)

    a determination, for the purposes of provisions of this Chapter, that a person has significant market power in an identified services market or an identified apparatus market, or

    (b)

    a confirmation for such purposes of a market power determination reviewed on a further analysis under section 84 or 85;

  • misuse”, in relation to an electronic communications network or electronic communications service, is to be construed in accordance with section 128(5) and (8), and cognate expressions are to be construed accordingly;

  • network access” is to be construed in accordance with subsection (3);

  • persistent” and “persistently”, in relation to misuse of an electronic communications network or electronic communications service, are to be construed in accordance with section 128(6) and (7);

  • premium rate service” is to be construed in accordance with section 120(7);

  • privileged supplier condition” means a condition set as a privileged supplier condition under section 45;

  • provider”, in relation to a premium rate service, is to be construed in accordance with section 120(9) to (12), and cognate expressions are to be construed accordingly;

  • public communications provider” means—

    (a)

    a provider of a public electronic communications network;

    (b)

    a provider of a public electronic communications service; or

    (c)

    a person who makes available facilities that are associated facilities by reference to a public electronic communications network or a public electronic communications service;

  • public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public;

  • public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;

  • regulatory authorities” is to be construed in accordance with subsection (5);

  • relevant international standards” means—

    (a)

    any standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive;

    (b)

    the standards and specifications from time to time adopted by—

    (i)

    the European Committee for Standardisation,

    (ii)

    the European Committee for Electrotechnical Standardisation; or

    (iii)

    the European Telecommunications Standards Institute; and

    (c)

    the international standards and recommendations from time to time adopted by—

    (i)

    the International Telecommunication Union;

    (ii)

    the International Organisation for Standardisation; or

    (iii)

    the International Electrotechnical Committee;

  • service interoperability” means interoperability between different electronic communications services;

  • services market”, in relation to a market power determination or market identification, is to be construed in accordance with section 46(8)(a);

  • significant market power” is to be construed in accordance with section 78;

  • SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

  • telephone number” has the meaning given by section 56(5);

  • the Universal Service Directive” means Directive 2002/22/EC of the European Parliament and of the Council on universal service and users' rights relating to electronic communications networks and services;

  • universal service condition” means a condition set as a universal service condition under section 45;

  • the universal service order” means the order for the time being in force under section 65.

(2)In this Chapter references to interconnection are references to the linking (whether directly or indirectly by physical or logical means, or by a combination of physical and logical means) of one public electronic communications network to another for the purpose of enabling the persons using one of them to be able—

(a)to communicate with users of the other one; or

(b)to make use of services provided by means of the other one (whether by the provider of that network or by another person).

(3)In this Chapter references to network access are references to—

(a)interconnection of public electronic communications networks; or

(b)any services, facilities or arrangements which—

(i)are not comprised in interconnection; but

(ii)are services, facilities or arrangements by means of which a communications provider or person making available associated facilities is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of anything mentioned in subsection (4);

and references to providing network access include references to providing any such services, making available any such facilities or entering into any such arrangements.

(4)The things referred to in subsection (3)(b) are—

(a)any electronic communications network or electronic communications service provided by another communications provider;

(b)any apparatus comprised in such a network or used for the purposes of such a network or service;

(c)any facilities made available by another that are associated facilities by reference to any network or service (whether one provided by that provider or by another);

(d)any other services or facilities which are provided or made available by another person and are capable of being used for the provision of an electronic communications service.

(5)References in this Chapter to the regulatory authorities of member States are references to such of the authorities of the member States as have been notified to the European Commission as the regulatory authorities of those States for the purposes of the Framework Directive.

(6)For the purposes of this Chapter, where there is a contravention of an obligation that requires a person to do anything within a particular period or before a particular time, that contravention shall be taken to continue after the end of that period, or after that time, until that thing is done.

(7)References in this Chapter to remedying the consequences of a contravention include references to paying an amount to a person—

(a)by way of compensation for loss or damage suffered by that person; or

(b)in respect of annoyance, inconvenience or anxiety to which he has been put.

(8)In determining for the purposes of provisions of this Chapter whether a contravention is a repeated contravention for any purposes, a notification of a contravention under that provision shall be disregarded if it has been withdrawn before the imposition of a penalty in respect of the matters notified.

(9)For the purposes of this section a service is made available to members of the public if members of the public are customers, in respect of that service, of the provider of that service.

Chapter 2E+W+S+N.I.Spectrum use

General functions relating to spectrum useE+W+S+N.I.

152General functions of OFCOM in relation to radio spectrumE+W+S+N.I.

(1)It shall be a function of OFCOM—

(a)to give such advice in relation to the use of the electro-magnetic spectrum for wireless telegraphy,

(b)to provide such other services, and

(c)to maintain such records,

as they consider appropriate for the purpose of facilitating or managing the use of that spectrum for wireless telegraphy.

(2)It shall be a function of OFCOM, in relation to the use of the electro-magnetic spectrum for wireless telegraphy—

(a)to give such further advice,

(b)to provide such other services, and

(c)to maintain such other records,

as the Secretary of State may, for the purpose of securing compliance with the international obligations of the United Kingdom, require them to provide.

(3)The advice, the other services and the records that OFCOM may give, provide or maintain under this section include advice, other services and records with respect to the use of the electro-magnetic spectrum at places outside the United Kingdom.

(4)The powers of OFCOM to carry out research, or to arrange for others to carry out research, are to be exercisable, in particular, for ascertaining, for the purpose of carrying out their functions under this section, information about—

(a)the demands for use of the electro-magnetic spectrum for wireless telegraphy in the United Kingdom;

(b)the effects, in the United Kingdom, of any such use of that spectrum;

(c)likely future developments in relation to those matters; and

(d)any other connected matters that OFCOM think relevant.

(5)OFCOM may make a grant to any person if, in their opinion, the making of the grant is likely to promote—

(a)the efficient use in the United Kingdom of the electro-magnetic spectrum for wireless telegraphy; or

(b)the efficient management of that use.

(6)A grant—

(a)may be made to a person holding a wireless telegraphy licence or a grant of recognised spectrum access under section 159 or to any other person; and

(b)is to be made on such terms and conditions as OFCOM consider appropriate;

and those terms and conditions may include terms requiring the repayment of the grant in specified circumstances.

(7)The consent of the Treasury is to be required—

(a)for the making of a grant under subsection (5); and

(b)for the terms and conditions on which such a grant is made.

(8)Where OFCOM are required to give advice or provide another service to a person under this section, they are to be entitled to make the giving of the advice or the provision of the other service conditional on the payment to them of such sums—

(a)as they may determine in advance; or

(b)as may be agreed between them and that person.

(9)In this section references to providing a service to a person include references to a service consisting in—

(a)the entry of that person’s particulars in a register or other record kept by OFCOM for the purpose of carrying out their functions under this section; or

(b)the taking of steps for the purposes of determining whether to grant an application for an entry in a register or record so kept.

153United Kingdom Plan for Frequency AuthorisationE+W+S+N.I.

(1)It shall be the duty of OFCOM, from time to time as they think fit, to publish a document (to be known as “the United Kingdom Plan for Frequency Authorisation”).

(2)The plan must set out—

(a)the frequencies that, in relation to the United Kingdom, have been allocated for particular purposes for wireless telegraphy and are available for assignment; and

(b)the purposes for which the different frequencies have been allocated.

154Duties of OFCOM when carrying out spectrum functionsE+W+S+N.I.

(1)It shall be the duty of OFCOM, in carrying out their functions under the enactments relating to the management of the radio spectrum, to have regard, in particular, to—

(a)the extent to which the electro-magnetic spectrum is available for use, or further use, for wireless telegraphy;

(b)the demand for use of that spectrum for wireless telegraphy; and

(c)the demand that is likely to arise in future for the use of that spectrum for wireless telegraphy.

(2)It shall also be their duty, in carrying out their functions under those enactments to have regard, in particular, to the desirability of promoting—

(a)the efficient management and use of the part of the electro-magnetic spectrum available for wireless telegraphy;

(b)the economic and other benefits that may arise from the use of wireless telegraphy;

(c)the development of innovative services; and

(d)competition in the provision of electronic communications services.

(3)In the application of this section to the functions of OFCOM under the enactments relating to the management of the radio spectrum other than section 2 of the Wireless Telegraphy Act 1998 (c. 6) (exercise of power to prescribe wireless telegraphy licence fees), OFCOM may disregard such of the matters mentioned in the preceding subsections as appear to them—

(a)to be matters to which they are not required to have regard apart from this section; and

(b)to have no application to the case in question.

(4)Where it appears to OFCOM that any of their duties under this section conflict with one or more of their duties under sections 3 to 6, priority must be given to their duties under those sections.

(5)Where it appears to OFCOM that any of their duties under this section conflict with each other in a particular case, they must secure that the conflict is resolved in the manner they think best in the circumstances.

155Advisory service in relation to interferenceE+W+S+N.I.