Communications Act 2003

49 Directions and approvals for the purposes of a s. 45 condition

(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(4) Before the direction, approval or consent is given, modified or withdrawn, a notification must be published—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 are 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.