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Communications Act 2003

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Commencement Orders bringing legislation that affects this Act into force:

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—

    (b)
    (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).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

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.