Office of Public Sector Information
PART 2 continued CHAPTER 1 continued
(1) This section applies where—
(a) a person (“the notified misuser”) has been given a notification under section 128;
(b) OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may give the notified misuser an enforcement notification if they are satisfied—
(a) that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and
(b) that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—
(i) securing that his misuse is brought to an end and is not repeated; and
(ii) remedying the consequences of the notified misuse.
(3) An enforcement notification is a notification which imposes a requirement on the notified misuser to take all such steps for—
(a) securing that his misuse is brought to an end and is not repeated, and
(b) remedying the consequences of the notified misuse,
as may be specified in the notification.
(4) A decision of OFCOM to give an enforcement notification to a person must fix a reasonable period for the taking of the steps required by the notification.
(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.
(6) That duty shall be enforceable in civil proceedings by OFCOM—
(a) for an injunction;
(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or
(c) for any other appropriate remedy or relief.
(7) References in this section to remedying the consequences of misuse include references to paying an amount to a person—
(a) by way of compensation for loss or damage suffered by that person; or
(b) in respect of annoyance, inconvenience or anxiety to which he has been put.
(1) This section applies (in addition to section 129) where—
(a) a person (“the notified misuser”) has been given a notification under section 128;
(b) OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may impose a penalty on the notified misuser if he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service.
(3) OFCOM may also impose a penalty on the notified misuser if he has contravened a requirement of an enforcement notification given in respect of the notified misuse.
(4) The amount of a penalty imposed is to be such amount not exceeding £5,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the misuse in respect of which it is imposed.
(5) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified misuser;
(b) any steps taken by him for securing that his misuse is brought to an end and is not repeated; and
(c) any steps taken by him for remedying the consequences of the notified misuse.
(6) Where OFCOM impose a penalty on a person under this section, they shall—
(a) notify the person penalised; and
(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.
(7) A penalty imposed under this section—
(a) must be paid to OFCOM; and
(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.
(8) It is to be possible for a person to be both liable for an offence under sections 125 to 127 and to have a penalty imposed on him under this section in respect of the same conduct.
(9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (4).
(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to the exercise of their powers under sections 128 to 130.
(2) OFCOM may from time to time revise that statement as they think fit.
(3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 128 to 130, to have regard to the statement for the time being in force under this section.
(1) If the Secretary of State has reasonable grounds for believing that it is necessary to do so—
(a) to protect the public from any threat to public safety or public health, or
(b) in the interests of national security,
he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.
(2) OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.
(3) A direction under this section is—
(a) a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b) a direction that that entitlement is restricted in the respects set out in the direction.
(4) A direction under subsection (3)—
(a) must specify the networks, services and facilities to which it relates; and
(b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.
(5) A direction under subsection (3)—
(a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and
(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the relevant provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.
(6) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the relevant provider’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(7) Where OFCOM give a direction under subsection (3), they shall, as soon as practicable after doing so, provide that person with an opportunity of—
(a) making representations about the effect of the direction; and
(b) proposing steps for remedying the situation.
(8) If OFCOM consider it appropriate to do so (whether in consequence of any representations or proposals made to them under subsection (3) or otherwise), they may, without revoking it, at any time modify the terms of a direction under subsection (3) in such manner as they consider appropriate.
(9) If the Secretary of State considers it appropriate to do so, he may, by a direction to OFCOM, require them to revoke a direction under subsection (3).
(10) Where OFCOM modify or revoke a direction they have given under subsection (3), they may do so—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.
(11) It shall be the duty of OFCOM to comply with—
(a) a requirement under subsection (9) to revoke a direction; and
(b) a requirement contained in that direction as to how they should exercise their powers under subsection (10) in the case of the required revocation.
(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—
(a) while his entitlement to do so is suspended by a direction under section 132; or
(b) in contravention of a restriction contained in such a direction.
(2) A person guilty of an offence under subsection (1) shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(3) The duty of a person to comply with a condition of a direction under section 132 shall be a duty owed to every person who may be affected by a contravention of the condition.
(4) Where a duty is owed by virtue of subsection (3) to a person—
(a) a breach of the duty that causes that person to sustain loss or damage, and
(b) an act which—
(i) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and
(ii) is done wholly or partly for achieving that result,
shall be actionable at the suit or instance of that person.
(5) In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.
(6) Sections 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45.
(1) This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of—
(a) the person from whom he obtains electronic communications services, or particular electronic communications services, or
(b) the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,
is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.
(2) This section also applies where—
(a) provision contained in a lease for a year or more has the effect of imposing any other prohibition or restriction on the lessee with respect to an electronic communications matter; or
(b) provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.
(3) A provision falling within subsection (1) shall have effect—
(a) as if the prohibition or restriction applied only where the lessor, licensor or other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and
(b) as if the lessor, licensor or other party were required not to withhold that consent unreasonably.
(4) A provision falling within subsection (2)(a) or (b) shall have effect—
(a) in relation to things done inside a building occupied by the lessee under the lease, or
(b) for purposes connected with the provision to the lessee of an electronic communications service,
as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.
(5) Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent—
(a) in relation to an electronic communications matter, or
(b) to the obtaining by the occupier of premises of an electronic communications service from or through a particular person,
the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.
(6) OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.
(7) References in this section to electronic communications matters are references to—
(a) the provision of an electronic communications network or electronic communications service;
(b) the connection of electronic communications apparatus to a relevant electronic communications network or of any such network to another; and
(c) the installation, maintenance, adjustment, repair, alteration or use for purposes connected with the provision of such a network or service of electronic communications apparatus.
(8) In this section—
“alteration” has the same meaning as in the electronic communications code;
“lease” includes—
a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and
in Scotland, a sub-lease and an agreement to grant a sub-lease,
and “lessor” and “lessee” are to be construed accordingly;
“relevant electronic communications network” means—
a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or
an electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.
(9) This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.
(10) This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).
(11) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.
(12) Section 403 applies to the powers of OFCOM to make orders under this section.
(13) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under this Chapter.
(2) The persons falling within this subsection are—
(a) a communications provider;
(b) a person who has been a communications provider;
(c) a person who makes, or has made, any associated facilities available to others;
(d) a person, other than a communications provider, to whom a universal service condition applies or has applied;
(e) a person who supplies electronic communications apparatus;
(f) a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.
(3) The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—
(a) ascertaining whether a contravention of a condition or other requirement set or imposed by or under this Chapter has occurred or is occurring;
(b) ascertaining or verifying the charges payable by a person under section 38;
(c) ascertaining whether a provision of a condition set under section 45 which is for the time being in force continues to be effective for the purpose for which it was made;
(d) ascertaining or verifying amounts payable by virtue of a condition falling within section 51(1)(d);
(e) making a designation in accordance with regulations made under section 66;
(f) carrying out a review under section 66 or 70;
(g) identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter;
(h) ascertaining whether a question has arisen that gives rise to their duty under section 105;
(i) considering a matter in exercise of that duty;
(j) statistical purposes connected with the carrying out of any of OFCOM’s functions under this Chapter.
(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.
(5) The powers in this section are subject to the limitations in section 137.
(1) OFCOM may require—
(a) a communications provider, or
(b) a person who makes associated facilities available to others,
to provide OFCOM with all such information as they consider necessary for the purpose specified in subsection (2).
(2) That purpose is the carrying out—
(a) with a view to publication, and
(b) in the interest of the end-users of public electronic communications services,
of comparative overviews of the quality and prices of such services.
(3) OFCOM may also require—
(a) a communications provider, or
(b) a person who makes associated facilities available to others,
to provide them, for use for such statistical purposes as they think fit, with information relating to any electronic communications network, electronic communications service or associated facilities.
(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.
(5) The powers in this section are subject to the limitations in section 137.
(1) This section limits the purposes for which, and manner in which, information may be required under sections 135 and 136.
(2) OFCOM are not to require the provision of information for the purpose of ascertaining whether a contravention of a general condition has occurred, or is occurring, unless—
(a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint;
(b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the general condition in question has been complied with;
(c) the condition in question is one which OFCOM have reason to suspect is one that has been or is being contravened; or
(d) the condition in question is one falling within section 51(1)(d).
(3) OFCOM are not to require the provision of information under section 135 or 136 except—
(a) by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it; and
(b) where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions.
(4) The reasons for requiring information for statistical purposes under section 135 or 136 must set out the statistical purposes for which the information is required.
(5) Except in the case of a demand made in the manner authorised by subsection (6), a demand for information required under section 135 or 136 must be contained in a notice served on the person from whom the information is required.
(6) In the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under section 38, the demand may—
(a) be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who are described in the demand as the persons from whom the information is required; and
(b) take the form of a general demand for a person so described to provide information when specified conditions relevant to his liability to such charges are satisfied in his case.
(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 135 or 136, they may give that person a notification under this section.
(2) A notification under this section is one which—
(a) sets out the determination made by OFCOM;
(b) specifies the requirement and contravention in respect of which that determination has been made; and
(c) specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).
(3) Those things are—
(a) making representations about the matters notified; and
(b) complying with any notified requirement of which he remains in contravention.
(4) Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.
(5) OFCOM may, if they think fit, allow a longer period for doing those things either—
(a) by specifying a longer period in the notification; or
(b) by subsequently, on one or more occasions, extending the specified period.
(6) The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.
(7) The person notified shall also have a shorter period if—
(a) OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;
(b) they have determined that, in those circumstances, a shorter period would be appropriate; and
(c) the shorter period has been specified in the notification.
(8) A notification under this section—
(a) may be given in respect of more than one contravention; and
(b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.
(9) Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—
(a) the contravention is one occurring after the time of the giving of the earlier notification;
(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or
(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.
(10) For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—
(a) a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same requirement; and
(b) the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 139(2) that the contravention to which the previous notification related did occur.
(1) This section applies where—
(a) a person (“the notified person”) has been given a notification under section 138;
(b) OFCOM have allowed the notified person an opportunity of making representations about the matters notified; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may impose a penalty on the notified person if—
(a) they are satisfied that he has, in one or more of the respects notified, been in contravention of the requirement notified under section 138;
(b) he has not, during the period allowed under that section, complied with the notified requirement; and
(c) no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention.
(3) Where a notification under section 138 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.
(4) Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.
(5) The amount of a penalty imposed under this section is to be such amount not exceeding £50,000 as OFCOM determine to be both—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(6) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified person; and
(b) any steps taken by him towards complying with the requirements contraventions of which have been notified to him under section 138.
(7) Where OFCOM impose a penalty on a person under this section, they shall—
(a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for that decision; and
(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.
(8) A penalty imposed under this section—
(a) must be paid to OFCOM; and
(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.
(9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (5).
(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
Communications Act 2003