Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

Electronic communications code

Procedure for directions under s. 113
114
1
Except in an urgent case , or a case of a single serious contravention, , OFCOM are not to give a direction under section 113(4) suspending the application of the electronic communications code in the case of any person (“the operator”) unless they have—
a
notified the operator of the proposed suspension and of the steps (if any) that they are proposing to take under section 117;
b
provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation that has given rise to the proposed suspension; and
c
considered every representation and proposal made to them during the period allowed by them for the operator to take advantage of that opportunity.
2
That period is such reasonable period as
OFCOM
may specify, beginning with the day on which the notification is given.
3
As soon as practicable after giving a direction under section 113 in an urgent case, OFCOM must provide the operator with an opportunity of—
a
making representations about the effect of the direction and of any steps taken under section 117 in connection with the suspension; and
b
proposing steps for remedying the situation that has given rise to the situation.
3A
As soon as practicable after the period allowed by
OFCOM
for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—
a
whether the contravention providing the grounds for the giving of the direction did occur; and
b
whether the circumstances made it an urgent case justifying the giving of the direction.
3B
The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if
OFCOM
—
a
require additional time to consider representations received; or
b
decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).
3C
If
OFCOM
decide that the contravention did occur and that the direction was justified, they may confirm the direction.
3D
If not, they must revoke it.
4
A case is an urgent case for the purposes of this section if OFCOM—
a
consider that it would be inappropriate, because the circumstances appearing to OFCOM to require the suspension fall within subsection (5), to allow time, before giving a direction under section 113, for the making and consideration of representations; and
b
decide for that reason to act in accordance with subsection (3), instead of subsection (1).
5
Circumstances fall within this subsection if they have resulted in, or create an immediate risk of—
a
a serious threat to the safety of the public, to public health or to national security;
b
serious economic or operational problems for persons (apart from the operator) who are communications providers or persons who make associated facilities available; or
c
serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.
S. 114 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))
S. 114 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)
Words in s. 114(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 74(a) (with Sch. 3 paras. 2, 15)
S. 114(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 74(b) (with Sch. 3 paras. 2, 15)
S. 114(3A)-(3D) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 74(c) (with Sch. 3 paras. 2, 15)
Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4