Office of Public Sector Information
PART 2 continued CHAPTER 1 continued
(1) OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—
(a) that he is or has been in serious and repeated contravention of requirements imposed under sections 135 and 136, or either of them;
(b) the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM’s functions in relation to SMP apparatus conditions;
(c) that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and
(d) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.
(2) A direction under this section is—
(a) a direction that the entitlement of the contravening provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b) a direction that that entitlement is restricted in the respects set out in the direction.
(3) A direction under this section—
(a) must specify the networks, services and facilities to which it relates; and
(b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.
(4) A direction under this section—
(a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and
(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.
(5) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the contravening provider’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of any representations or proposals made to them), they may revoke a direction under this section or modify its conditions—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.
(7) For the purposes of this section there are repeated contraventions by a person of requirements imposed under sections 135 and 136, or either of them, to the extent that—
(a) in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(2) that such a contravention did occur; and
(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of such requirements;
and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements or of requirements under different sections.
(1) OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—
(a) that he is or has been in serious and repeated contravention of requirements imposed under section 135;
(b) that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and
(c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.
(2) A direction under this section is—
(a) a direction to the contravening supplier to cease to act as a supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description); or
(b) a direction imposing such restrictions as may be set out in the direction on the supply by that supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description).
(3) A direction under this section takes effect, except so far as it otherwise provides, for an indefinite period beginning with the time at which it is notified to the person to whom it is given.
(4) A direction under this section—
(a) may provide for a prohibition or restriction to take effect only at a time determined by or in accordance with the terms of the direction; and
(b) in connection with a prohibition or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening supplier as appear to OFCOM to be appropriate for the purpose of protecting that supplier’s customers.
(5) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the contravening supplier’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such apparatus or descriptions of apparatus as they may determine.
(7) For the purposes of this section contraventions by a person of requirements imposed under section 135 are repeated contraventions if—
(a) in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(2) that such a contravention did occur; and
(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of such requirements;
and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements.
(1) Except in an urgent case, OFCOM are not to give a direction under section 140 or 141 unless they have—
(a) notified the contravening provider or contravening supplier of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;
(b) provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and
(c) considered every representation and proposal made to them during the period allowed by them for the contravening provider or the contravening supplier to take advantage of that opportunity.
(2) That period must be one ending not less than one month after the day of the giving of the notification.
(3) As soon as practicable after giving a direction under section 140 or 141 in an urgent case, OFCOM must provide the contravening provider or contravening supplier with an opportunity of—
(a) making representations about the effect of the direction and of any of its conditions; and
(b) proposing steps for remedying the situation.
(4) A case is an urgent case for the purposes of this section if OFCOM—
(a) consider that it would be inappropriate, because the contraventions in question fall within subsection (5), to allow time, before giving a direction under section 140 or 141, for the making and consideration of representations; and
(b) decide for that reason to act in accordance with subsection (3), instead of subsection (1).
(5) The contraventions fall within this subsection if they have resulted in, or create an immediate risk of—
(a) a serious threat to the safety of the public, to public health or to national security;
(b) serious economic or operational problems for persons (apart from the contravening provider or contravening supplier) who are communications providers or persons who make associated facilities available; or
(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.
(6) In this section—
“contravening provider” has the same meaning as in section 140; and
“contravening supplier” has the same meaning as in section 141.
(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—
(a) while his entitlement to do so is suspended by a direction under section 140; or
(b) in contravention of a restriction contained in such a direction.
(2) A person is guilty of an offence if he supplies electronic communications apparatus—
(a) while prohibited from doing so by a direction under section 141; or
(b) in contravention of a restriction contained in such a direction.
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) Sections 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 140 or 141 as they apply in relation to a contravention of conditions set under section 45.
(1) A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 is guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(2) In proceedings against a person for an offence under subsection (1) it shall be a defence for that person to show—
(a) that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but
(b) that he has taken all reasonable steps to provide the required information after the end of that period.
(3) A person is guilty of an offence if—
(a) in pursuance of any requirement under section 135 or 136, he provides any information that is false in any material particular; and
(b) at the time he provides it, he either knows it to be false or is reckless as to whether or not it is false.
(4) A person guilty of an offence under subsection (3) shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
(5) Proceedings for an offence under subsection (1) may be brought in respect of a contravention by a person of a requirement imposed under section 135 or 136 only if—
(a) OFCOM have given the person a notification under section 138 in respect of that contravention;
(b) the period allowed under that section for doing the things mentioned in subsection (3) of that section has expired without the required information having been provided; and
(c) OFCOM have not imposed a financial penalty under section 139 in respect of that contravention.
(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to—
(a) the exercise of their powers under sections 135 to 136; and
(b) the uses to which they are proposing to put information obtained under those sections.
(2) OFCOM may from time to time revise that statement as they think fit.
(3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 135 to 144 to have regard to the statement for the time being in force under this section.
(1) OFCOM must comply with a request made by a person for the purposes of this section—
(a) to notify the person whether or not a notification is required to be submitted by him under section 33;
(b) to notify the person whether a notification submitted by him for the purposes of that section satisfies the requirements of this Chapter;
(c) to provide the person with such information about his rights as may be necessary for the purpose of facilitating the negotiation by him of his right to network access; or
(d) to provide the person with such information as they consider necessary to enable the applicant to apply for a direction under section 106 to be made in his case.
(2) A request for the purposes of this section must be made in such manner as OFCOM may require.
(3) OFCOM are not required to comply with a request under this section if (without having been asked to do so) they have already given that person the notification or information for which he is asking.
(4) Any notification or information which under subsection (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the request for the notification or information was made to OFCOM.
The following provisions of the Telecommunications Act 1984 (c. 12) shall cease to have effect—
(a) sections 5 to 8 (licensing provisions);
(b) sections 9 to 11 (public telecommunications systems);
(c) sections 12 to 15 (modification of licences);
(d) sections 16 to 19 (enforcement of licences); and
(e) sections 27A to 27L (standards of performance of designated public telecommunications operators).
(1) A local authority may borrow money for the purpose of providing a public electronic communications network or public electronic communications service.
(2) A local authority may—
(a) provide a public electronic communications network part of which is outside their area; and
(b) provide a public electronic communications service even if some of the persons to whom they provide the service are outside their area.
(3) In this section, a “local authority” means—
(a) in relation to England, a London borough council or a district council;
(b) in relation to Wales, a county council or a county borough council;
(c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).
(1) The Department of Enterprise, Trade and Investment may, in accordance with this section, make payments to persons engaged in, or in commercial activities connected with—
(a) the provision of electronic communications networks and electronic communications services in Northern Ireland; or
(b) improving the extent, quality and reliability of such networks or services.
(2) A payment shall not be made under this section unless in the opinion of the Department of Enterprise, Trade and Investment—
(a) the making of the payment is likely to achieve—
(i) one or more of the purposes set out in subsection (1); and
(ii) any other purposes prescribed by regulations made by that Department with the approval of the Department of Finance and Personnel; and
(b) the amount of the payment is reasonable having regard to all the circumstances.
(3) Payments under this section shall—
(a) be of such amounts, and
(b) be made subject to such conditions (including conditions as to repayment),
as the Department of Enterprise, Trade and Investment may determine.
(4) This section extends only to Northern Ireland.
(1) This section applies where a district council in Northern Ireland consider that it would be for the benefit of their area—
(a) for a public electronic communications network or electronic communications service to be provided by a particular person;
(b) for facilities to be made available by a particular person for the purposes of, or in connection with, the provision of such a network or service; or
(c) for such a network or service that is being provided by a particular person, or for any such facilities that are being so made available by a particular person, to continue to be provided or made available.
(2) The district council may—
(a) undertake to pay to that person, and
(b) pay him,
whatever sums they think appropriate for, or towards, compensating him for losses sustained in the provision of the network or service or in making the facilities available.
(3) For the purposes of this section it is immaterial—
(a) in the case of a network, whether any part of the network is situated in the council’s area; and
(b) in the case of a service or facility, whether any of the persons to whom the service or facility is provided or made available are in that area.
(1) In this Chapter—
“the Access Directive” means Directive 2002/19/EC of the European Parliament and of the Council on access to, and interconnection of, electronic communications networks and associated facilities;
“access-related condition” means a condition set as an access-related condition under section 45;
“allocation” and “adoption”, in relation to telephone numbers, and cognate expressions, are to be construed in accordance with section 56;
“apparatus market”, in relation to a market power determination, is to be construed in accordance with section 46(9)(b);
“designated universal service provider” means a person who is for the time being designated in accordance with regulations under section 66 as a person to whom universal service conditions are applicable;
“electronic communications apparatus”—
in relation to SMP apparatus conditions and in section 141, means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals (within the meaning of section 32) that are transmitted by means of an electronic communications network; and
in all other contexts, has the same meaning as in the electronic communications code;
“the electronic communications code” has the meaning given by section 106(1);
“end-user”, in relation to a public electronic communications service, means—
a person who, otherwise than as a communications provider, is a customer of the provider of that service;
a person who makes use of the service otherwise than as a communications provider; or
a person who may be authorised, by a person falling within paragraph (a), so to make use of the service;
“the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services;
“general condition” means a condition set as a general condition under section 45;
“interconnection” is to be construed in accordance with subsection (2);
“market power determination” means—
a determination, for the purposes of provisions of this Chapter, that a person has significant market power in an identified services market or an identified apparatus market, or
a confirmation for such purposes of a market power determination reviewed on a further analysis under section 84 or 85;
“misuse”, in relation to an electronic communications network or electronic communications service, is to be construed in accordance with section 128(5) and (8), and cognate expressions are to be construed accordingly;
“network access” is to be construed in accordance with subsection (3);
“persistent” and “persistently”, in relation to misuse of an electronic communications network or electronic communications service, are to be construed in accordance with section 128(6) and (7);
“premium rate service” is to be construed in accordance with section 120(7);
“privileged supplier condition” means a condition set as a privileged supplier condition under section 45;
“provider”, in relation to a premium rate service, is to be construed in accordance with section 120(9) to (12), and cognate expressions are to be construed accordingly;
“public communications provider” means—
a provider of a public electronic communications network;
a provider of a public electronic communications service; or
a person who makes available facilities that are associated facilities by reference to a public electronic communications network or a public electronic communications service;
“public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public;
“public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;
“regulatory authorities” is to be construed in accordance with subsection (5);
“relevant international standards” means—
any standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive;
the standards and specifications from time to time adopted by—
the European Committee for Standardisation,
the European Committee for Electrotechnical Standardisation; or
the European Telecommunications Standards Institute; and
the international standards and recommendations from time to time adopted by—
the International Telecommunication Union;
the International Organisation for Standardisation; or
the International Electrotechnical Committee;
“service interoperability” means interoperability between different electronic communications services;
“services market”, in relation to a market power determination or market identification, is to be construed in accordance with section 46(8)(a);
“significant market power” is to be construed in accordance with section 78;
“SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;
“telephone number” has the meaning given by section 56(5);
“the Universal Service Directive” means Directive 2002/22/EC of the European Parliament and of the Council on universal service and users' rights relating to electronic communications networks and services;
“universal service condition” means a condition set as a universal service condition under section 45;
“the universal service order” means the order for the time being in force under section 65.
(2) In this Chapter references to interconnection are references to the linking (whether directly or indirectly by physical or logical means, or by a combination of physical and logical means) of one public electronic communications network to another for the purpose of enabling the persons using one of them to be able—
(a) to communicate with users of the other one; or
(b) to make use of services provided by means of the other one (whether by the provider of that network or by another person).
(3) In this Chapter references to network access are references to—
(a) interconnection of public electronic communications networks; or
(b) any services, facilities or arrangements which—
(i) are not comprised in interconnection; but
(ii) are services, facilities or arrangements by means of which a communications provider or person making available associated facilities is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of anything mentioned in subsection (4);
and references to providing network access include references to providing any such services, making available any such facilities or entering into any such arrangements.
(4) The things referred to in subsection (3)(b) are—
(a) any electronic communications network or electronic communications service provided by another communications provider;
(b) any apparatus comprised in such a network or used for the purposes of such a network or service;
(c) any facilities made available by another that are associated facilities by reference to any network or service (whether one provided by that provider or by another);
(d) any other services or facilities which are provided or made available by another person and are capable of being used for the provision of an electronic communications service.
(5) References in this Chapter to the regulatory authorities of member States are references to such of the authorities of the member States as have been notified to the European Commission as the regulatory authorities of those States for the purposes of the Framework Directive.
(6) For the purposes of this Chapter, where there is a contravention of an obligation that requires a person to do anything within a particular period or before a particular time, that contravention shall be taken to continue after the end of that period, or after that time, until that thing is done.
(7) References in this Chapter to remedying the consequences of a contravention include references to paying an amount to a person—
(a) by way of compensation for loss or damage suffered by that person; or
(b) in respect of annoyance, inconvenience or anxiety to which he has been put.
(8) In determining for the purposes of provisions of this Chapter whether a contravention is a repeated contravention for any purposes, a notification of a contravention under that provision shall be disregarded if it has been withdrawn before the imposition of a penalty in respect of the matters notified.
(9) For the purposes of this section a service is made available to members of the public if members of the public are customers, in respect of that service, of the provider of that service.
(1) It shall be a function of OFCOM—
(a) to give such advice in relation to the use of the electro-magnetic spectrum for wireless telegraphy,
(b) to provide such other services, and
(c) to maintain such records,
as they consider appropriate for the purpose of facilitating or managing the use of that spectrum for wireless telegraphy.
(2) It shall be a function of OFCOM, in relation to the use of the electro-magnetic spectrum for wireless telegraphy—
(a) to give such further advice,
(b) to provide such other services, and
(c) to maintain such other records,
as the Secretary of State may, for the purpose of securing compliance with the international obligations of the United Kingdom, require them to provide.
Communications Act 2003