Communications Act 2003 (Chapter 21), United Kingdom, WIPO Lex

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English Communications Act 2003 (Chapter 21)

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Communications Act 2003

Communications Act 2003 CHAPTER 21

Explanatory Notes have been produced to assist in the understanding of this Act and are available separately

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Communications Act 2003

CHAPTER 21

CONTENTS

PART 1

FUNCTIONS OF OFCOM

Transferred and assigned functions

1 Functions and general powers of OFCOM 2 Transfer of functions of pre-commencement regulators

General duties in carrying out functions

3 General duties of OFCOM 4 Duties for the purpose of fulfilling Community obligations 5 Directions in respect of networks and spectrum functions 6 Duties to review regulatory burdens 7 Duty to carry out impact assessments 8 Duty to publish and meet promptness standards 9 Secretary of State’s powers in relation to promptness standards

Accessible domestic communications apparatus

10 Duty to encourage availability of easily usable apparatus

Media literacy

11 Duty to promote media literacy

OFCOM’s Content Board

12 Duty to establish and maintain Content Board 13 Functions of the Content Board

Communications Act 2003 (c. 21)

Functions for the protection of consumers

14 Consumer research 15 Duty to publish and take account of research 16 Consumer consultation 17 Membership etc. of the Consumer Panel 18 Committees and other procedure of the Consumer Panel 19 Power to amend remit of Consumer Panel

Advisory committees

20 Advisory committees for different parts of the United Kingdom 21 Advisory committee on elderly and disabled persons

International matters

22 Representation on international and other bodies 23 Directions for international purposes in respect of broadcasting functions

General information functions

24 Provision of information to the Secretary of State 25 Community requirement to provide information 26 Publication of information and advice for consumers etc.

Employment in broadcasting

27 Training and equality of opportunity

Charging

28 General power to charge for services

Guarantees

29 Secretary of State guarantees for OFCOM borrowing

Provisions supplemental to transfer of functions

30 Transfers of property etc. from pre-commencement regulators 31 Transitional functions and abolition of pre-commencement regulators

PART 2

NETWORKS, SERVICES AND THE RADIO SPECTRUM

CHAPTER 1

ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES

Preliminary

32 Meaning of electronic communications networks and services

Communications Act 2003 (c. 21)

Notification by providers

33 Advance notification to OFCOM 34 Designations and requirements for the purposes of s. 33 35 Notification of contraventions of s. 33 36 Enforcement notification for contravention of s. 33 37 Penalties for contravention of s. 33

Administrative charges imposed on providers

38 Fixing of charges 39 Supplemental provision about fixing charges 40 Notification of non-payment of charges 41 Penalties for non-payment of charges 42 Suspending service provision for non-payment 43 Enforcement of directions under s. 42

Register of providers required to notify or to pay charges

44 Duty of OFCOM to keep publicly accessible register

Conditions of entitlement to provide network or service etc.

45 Power of OFCOM to set conditions 46 Persons to whom conditions may apply 47 Test for setting or modifying conditions 48 Procedure for setting, modifying and revoking conditions 49 Directions and approvals for the purposes of a s. 45 condition 50 Delivery of copies of notifications etc.

General conditions: subject-matter

51 Matters to which general conditions may relate

General conditions: customer interests

52 Conditions relating to customer interests 53 Approval of codes of practice for the purposes of s. 52 54 Approval of dispute procedures for the purposes of s. 52 55 Orders by OFCOM in the absence of conditions under s. 52

General conditions: telephone numbers

56 The National Telephone Numbering Plan 57 Conditions to secure access to telephone numbers 58 Conditions about allocation and adoption of numbers 59 Telephone numbering conditions binding non-providers 60 Modification of documents referred to in numbering conditions 61 Withdrawal of telephone number allocations 62 Numbering reorganisations 63 General duty as to telephone numbering functions

General conditions: must-carry obligations

64 Must-carry obligations

iii

Communications Act 2003 (c. 21)

Universal service conditions

65 Obligations to be secured by universal service conditions 66 Designation of universal service providers 67 Subject-matter of universal service conditions 68 Tariffs etc. for universal services 69 Directories and directory enquiry facilities 70 Review of compliance costs 71 Sharing of burden of universal service obligations 72 Report on sharing mechanism

Access-related conditions

73 Permitted subject-matter of access-related conditions 74 Specific types of access-related conditions 75 Conditional access systems and access to digital services 76 Modification and revocation of conditions imposed under s. 75

Privileged supplier conditions

77 Imposition of privileged supplier conditions

SMP conditions: procedure

78 Circumstances required for the setting of SMP conditions 79 Market power determinations 80 Proposals for identifying markets and for market power determinations 81 Delivery of copies of notifications under ss. 79 and 80 82 European Commission’s powers in respect of proposals 83 Special rules for transnational markets 84 Review of services market identifications and determinations 85 Review of apparatus market identifications and determinations 86 Cases where review required

SMP services conditions: subject-matter

87 Conditions about network access etc. 88 Conditions about network access pricing etc. 89 Conditions about network access in exceptional cases 90 Conditions about carrier selection and pre-selection 91 Conditions about regulation of services etc. for end-users 92 Conditions about leased lines

SMP apparatus conditions: subject-matter

93 Conditions about apparatus supply

Enforcement of conditions

94 Notification of contravention of conditions 95 Enforcement notification for contravention of conditions 96 Penalties for contravention of conditions 97 Amount of penalty under s. 96 98 Power to deal with urgent cases 99 Confirmation of directions under s. 98

Communications Act 2003 (c. 21)

100 Suspending service provision for contraventions of conditions 101 Suspending apparatus supply for contraventions of conditions 102 Procedure for directions under ss. 100 and 101 103 Enforcement of directions under ss. 98, 100 and 101 104 Civil liability for breach of conditions or enforcement notification

OFCOM’s duty to intervene on network access issues

105 Consideration and determination of network access questions

Electronic communications code

106 Application of the electronic communications code 107 Procedure for directions applying code 108 Register of persons in whose case code applies 109 Restrictions and conditions subject to which code applies 110 Enforcement of restrictions and conditions 111 Enforcement notification for contravention of code restrictions 112 Penalties for contravention of code restrictions 113 Suspension of application of code 114 Procedure for directions under s. 113 115 Modification and revocation of application of code 116 Notification of cessation by person to whom code applies 117 Transitional schemes on cessation of application of code 118 Compulsory acquisition of land etc. 119 Power to give assistance in relation to certain proceedings

Regulation of premium rate services

120 Conditions regulating premium rate services 121 Approval of code for premium rate services 122 Orders by OFCOM in the absence of a code under s. 121 123 Enforcement of s. 120 conditions 124 Suspending service provision for contraventions of s. 120 conditions

Offences relating to networks and services

125 Dishonestly obtaining electronic communications services 126 Possession or supply of apparatus etc. for contravening s. 125 127 Improper use of public electronic communications network

Persistent misuse of network or service

128 Notification of misuse of networks and services 129 Enforcement notifications for stopping persistent misuse 130 Penalties for persistent misuse 131 Statement of policy on persistent misuse

Powers to deal with emergencies

132 Powers to require suspension or restriction of a provider’s entitlement 133 Enforcement of directions under s. 132

Communications Act 2003 (c. 21)

Restrictions in leases and licences

134 Restrictions in leases and licences

Information provisions

135 Information required for purposes of Chapter 1 functions 136 Information required for related purposes 137 Restrictions on imposing information requirements 138 Notification of contravention of information requirements 139 Penalties for contravention of information requirements 140 Suspending service provision for information contraventions 141 Suspending apparatus supply for information contraventions 142 Procedure for directions under ss. 140 and 141 143 Enforcement of directions under ss. 140 and 141 144 Offences in connection with information requirements 145 Statement of policy on information gathering 146 Provision of information by OFCOM

Abolition of telecommunications licensing etc.

147 Repeal of provisions of Telecommunications Act 1984

Local authority powers in relation to networks and services

148 Powers of local authorities in connection with networks

Grants for networks and services in Northern Ireland

149 Grants by Department of Enterprise, Trade and Investment 150 Grants by district councils

Interpretation of Chapter 1

151 Interpretation of Chapter 1

CHAPTER 2

SPECTRUM USE

General functions relating to spectrum use

152 General functions of OFCOM in relation to radio spectrum 153 United Kingdom Plan for Frequency Authorisation 154 Duties of OFCOM when carrying out spectrum functions 155 Advisory service in relation to interference 156 Directions with respect to the radio spectrum 157 Procedure for directions under s. 156

Reservation of spectrum for multiplex use

158 Special duty in relation to television multiplexes

Communications Act 2003 (c. 21)

Recognised spectrum access

159 Grant of recognised spectrum access 160 Effect of grant of recognised spectrum access 161 Charges in respect of grants of recognised spectrum access 162 Conversion into and from wireless telegraphy licences

Crown use of the radio spectrum

163 Payments for use of radio spectrum by the Crown

Limitations and exemptions applied to spectrum use

164 Limitations on authorised spectrum use 165 Terms etc. of wireless telegraphy licences 166 Exemption from need for wireless telegraphy licence

Award and transfer of licences

167 Bidding for wireless telegraphy licences 168 Spectrum trading

Variation and revocation of licences

169 Variation and revocation of wireless telegraphy licences

Wireless telegraphy register

170 Wireless telegraphy register

Information requirements

171 Information requirements in relation to wireless telegraphy licences

Criminal proceedings etc.

172 Contraventions of conditions for use of wireless telegraphy 173 Meaning of “repeated contravention” in s. 172 174 Procedure for prosecutions of wireless telegraphy offences 175 Special procedure for contraventions by multiplex licence holders 176 Amount of penalty under s. 175 177 “Relevant amount of gross revenue” for the purposes of s. 176 178 Proceedings for an offence relating to apparatus use 179 Modification of penalties for certain wireless telegraphy offences 180 Fixed penalties for certain wireless telegraphy offences 181 Power of arrest 182 Forfeiture etc. of restricted apparatus

Construction of 1949 Act

183 Modification of definition of “undue interference” 184 Modification of definition of “wireless telegraphy”

vii

Communications Act 2003 (c. 21)

CHAPTER 3

DISPUTES AND APPEALS

Disputes

185 Reference of disputes to OFCOM 186 Action by OFCOM on dispute reference 187 Legal proceedings about referred disputes 188 Procedure for resolving disputes 189 Disputes involving other member States 190 Resolution of referred disputes 191 OFCOM’s power to require information in connection with dispute

Appeals

192 Appeals against decisions by OFCOM, the Secretary of State etc. 193 Reference of price control matters to the Competition Commission 194 Composition of Competition Commission for price control references 195 Decisions of the Tribunal 196 Appeals from the Tribunal

Interpretation of Chapter 3

197 Interpretation of Chapter 3

PART 3

TELEVISION AND RADIO SERVICES

CHAPTER 1

THE BBC, C4C THE WELSH AUTHORITY AND THE GAELIC MEDIA SERVICE

The BBC

198 Functions of OFCOM in relation to the BBC

C4C

199 Functions of C4C 200 Removal of members of C4C 201 Deficits and surpluses of C4C 202 Borrowing limit for C4C

The Welsh Authority

203 Function of OFCOM in relation to the Welsh Authority 204 Welsh Authority’s function of providing S4C and S4C Digital 205 Powers to provide other services 206 Other activities of Welsh Authority 207 Welsh Authority finances

viii

Communications Act 2003 (c. 21)

The Gaelic Media Service

208 The Gaelic Media Service 209 Membership of the Service 210 Supplementary provisions about the Service

CHAPTER 2

REGULATORY STRUCTURE FOR INDEPENDENT TELEVISION SERVICES

Preliminary

211 Regulation of independent television services 212 Abolition of function of assigning television frequencies 213 Abolition of licensing for local cable systems

Channels 3 and 5

214 Digital Channel 3 and Channel 5 licences 215 Replacement of existing Channel 3 and Channel 5 licences 216 Renewal of Channel 3 and 5 licences 217 Financial terms of licence renewed under s. 216

The public teletext service

218 Duty to secure the provision of a public teletext service 219 Licensing of the public teletext service 220 Delegation of provision of public teletext service 221 Replacement of existing public teletext provider’s licence 222 Renewal of public teletext licence 223 Financial terms of licence renewed under s. 222

Meaning of initial expiry date

224 Meaning of “initial expiry date”

Reviews relating to licensing of Channels 3 & 5 and teletext

225 Application for review of financial terms of replacement licences 226 Application for review of financial terms in consequence of new obligations 227 Reviews under ss. 225 and 226 228 Giving effect to reviews under ss. 225 and 226 229 Report in anticipation of new licensing round 230 Orders suspending rights of renewal

Replacement of Channel 4 licence

231 Replacement of Channel 4 licence

Television licensable content services

232 Meaning of “television licensable content service” 233 Services that are not television licensable content services 234 Modification of ss. 232 and 233 235 Licensing of television licensable content services

Communications Act 2003 (c. 21)

236 Direction to licensee to take remedial action 237 Penalties for contravention of licence condition or direction 238 Revocation of television licensable content service licence 239 Action against licence holders who incite crime or disorder 240 Abolition of separate licences for certain television services

Television multiplex services

241 Television multiplex services 242 Composition of services in television multiplexes 243 Powers where frequencies reserved for qualifying services

Local digital television services

244 Local digital television services

CHAPTER 3

REGULATORY STRUCTURE FOR INDEPENDENT RADIO SERVICES

Preliminary

245 Regulation of independent radio services 246 Abolition of function of assigning radio frequencies

Radio licensable content services

247 Meaning of “radio licensable content services” 248 Services that are not radio licensable content services 249 Modification of ss. 247 and 248 250 Licensing of radio licensable content services 251 Abolition of separate licences for certain sound services

Licence periods etc.

252 Extension of licence periods 253 Extension and modification of existing licences 254 Renewal of local licences 255 Extension of special application procedure for local licences

Provision of simulcast radio services

256 Definition of simulcast radio services 257 Promotion of simulcast radio services

Multiplexes broadcasting sound programmes

258 Radio multiplex services 259 Composition of services in radio multiplexes 260 Digital sound services for inclusion in non-radio multiplexes 261 Renewal of radio multiplex licences

Communications Act 2003 (c. 21)

Community radio

262 Community radio

CHAPTER 4

REGULATORY PROVISIONS

Application of regulatory regimes

263 Application of regulatory regimes

The public service remit for television

264 OFCOM reports on the fulfilment of the public service remit 265 Public service remits of licensed providers 266 Statements of programme policy 267 Changes of programme policy 268 Statements of service policy by the public teletext provider 269 Changes of service policy 270 Enforcement of public service remits 271 Power to amend public service remits

Must-offer obligations etc. affecting public service television

272 Must-offer obligations in relation to networks 273 Must-offer obligations in relation to satellite services 274 Securing reception of must-provide services in certain areas 275 Must-provide services for the purposes of s. 274 276 Co-operation with the public teletext provider

Programming quotas for public service television

277 Programming quotas for independent productions 278 Programming quotas for original productions

News provision etc. on public service television

279 News and current affairs programmes 280 Appointed news providers for Channel 3 281 Disqualification from appointment as news provider 282 Power to repeal or modify Channel 3 news provider provisions 283 News providers for Channel 5 284 News provision on the public teletext service

Independent and regional productions and programmes for public service television

285 Code relating to programme commissioning 286 Regional programme-making for Channels 3 and 5 287 Regional programmes on Channel 3 288 Regional programme-making for Channel 4 289 Regional matters in the public teletext service

Communications Act 2003 (c. 21)

Networking arrangements for Channel 3

290 Proposals for arrangements 291 Obligation as to making and continuance of approved arrangements 292 OFCOM’s power to impose arrangements 293 Review of approved networking arrangements etc. 294 Supplemental provision about networking arrangements

Special obligations for Channel 4

295 Involvement of C4 Corporation in programme-making 296 Schools programmes on Channel 4 297 Channel 4 contribution towards national television archive

Special obligation for the public teletext provider

298 Conditions prohibiting interference with other services

Sporting and other events of national interest

299 Categorisation of listed events 300 Effects of categorisation of listed events 301 Code relating to listed events 302 Regulations about coverage of listed events

Television services for the deaf and visually impaired

303 Code relating to provision for the deaf and visually impaired 304 Procedure for issuing and revising code under s. 303 305 Meaning of “relevant date” in s. 303 306 Power to modify targets in s. 303 307 Observance of code under s. 303 308 Assistance for the visually impaired with the public teletext service

Programming quotas for digital television programme services

309 Quotas for independent programmes

Regulation of electronic programme guides

310 Code of practice for electronic programme guides 311 Conditions to comply with code under s. 310

Character and coverage of radio services

312 Character and coverage of sound broadcasting services 313 Consultation about change of character of local services 314 Local content and character of local sound broadcasting services 315 Variations of radio multiplex licences affecting service characteristics

Competition between licensed providers etc.

316 Conditions relating to competition matters 317 Exercise of Broadcasting Act powers for a competition purpose 318 Review of powers exercised for competition purposes

xii

Communications Act 2003 (c. 21)

Programme and fairness standards for television and radio

319 OFCOM’s standards code 320 Special impartiality requirements 321 Objectives for advertisements and sponsorship 322 Supplementary powers relating to advertising 323 Modification of matters to be taken into account under s. 319 324 Setting and publication of standards 325 Observance of standards code 326 Duty to observe fairness code 327 Standards with respect to fairness 328 Duty to publicise OFCOM’s functions in relation to complaints

Power to proscribe unacceptable foreign television and radio services

329 Proscription orders 330 Effect of proscription order 331 Notification for enforcing proscription 332 Penalties for contravention of notification under s. 331

Party political broadcasts on television and radio

333 Party political broadcasts

Monitoring of programmes

334 Retention and production of recordings

International obligations

335 Conditions securing compliance with international obligations

Government requirements for licensed services

336 Government requirements for licensed services

Equal opportunities and training

337 Promotion of equal opportunities and training

Corresponding rules for the BBC and Welsh Authority

338 Corresponding rules for the BBC and the Welsh Authority

Enforcement against the Welsh Authority

339 Review of fulfilment by Welsh Authority of public service remits 340 Directions to Welsh Authority to take remedial action 341 Imposition of penalties on the Welsh Authority 342 Contraventions recorded in Welsh Authority’s annual report 343 Provision of information by Welsh Authority

Enforcement of licence conditions

344 Transmission of statement of findings

xiii

Communications Act 2003 (c. 21)

345 Financial penalties imposable on licence holders 346 Recovery of fees and penalties

Broadcasting Act licence fees

347 Statement of charging principles

CHAPTER 5

MEDIA OWNERSHIP AND CONTROL

Restrictions on licence holders

348 Modification of disqualification provisions 349 Licence holding by local authorities 350 Relaxation of licence-holding restrictions

Changes of control

351 Changes of control of Channel 3 services 352 Action following review under s. 351 353 Changes of control of Channel 5 354 Action following review under s. 353 355 Variation of local licence following change of control 356 Action following review under s. 355

Meaning of control

357 Meaning of “control”

CHAPTER 6

OTHER PROVISIONS ABOUT TELEVISION AND RADIO SERVICES

Annual report on television and radio

358 Annual factual and statistical report

Community radio and local digital television

359 Grants to providers

Supplemental provisions of Part 3

360 Amendments of the 1990 and 1996 Acts 361 Meaning of “available for reception by members of the public” 362 Interpretation of Part 3

PART 4

LICENSING OF TV RECEPTION

363 Licence required for use of TV receiver 364 TV licences

xiv

Communications Act 2003 (c. 21)

365 TV licence fees 366 Powers to enforce TV licensing 367 Interpretation of provisions about dealer notification 368 Meanings of “television receiver” and “use”

PART 5

COMPETITION IN COMMUNICATIONS MARKETS

CHAPTER 1

FUNCTIONS OF OFCOM UNDER COMPETITION LEGISLATION

369 Matters in relation to which OFCOM have competition functions 370 OFCOM’s functions under Part 4 of the Enterprise Act 2002 371 OFCOM’s functions under the Competition Act 1998 372 Application of the Competition Act 1998 to news provision

CHAPTER 2

MEDIA MERGERS

Introductory

373 Repeal of existing newspaper merger regime 374 Repeal of exclusion for newspaper mergers from general merger controls

Adaptation for media mergers of main merger regime

375 Media public interest considerations 376 Adaptation of role of OFT in initial investigations and reports 377 Additional investigation and report by OFCOM

Extension of special public interest regime

378 Extension of special public interest regime for certain media mergers 379 Adaptation of role of OFT in special public interest regime 380 Additional investigation and report by OFCOM: special public interest cases

New general functions in relation to media mergers

381 Public consultation in relation to media mergers 382 General information duties in relation to media mergers 383 Advice and information in relation to media mergers 384 General advisory functions of OFCOM in relation to media mergers 385 Other general functions of OFCOM in relation to media mergers 386 Monitoring role for OFT in relation to media mergers

Supplemental provisions of Chapter 2

387 Enforcement powers in relation to newspaper and other media mergers 388 Alterations concerning newspaper panel of Competition Commission 389 Further provision in connection with media mergers

Communications Act 2003 (c. 21)

PART 6

MISCELLANEOUS AND SUPPLEMENTAL

Annual report

390 Annual report on the Secretary of State’s functions

Review of media ownership

391 Review of media ownership

Guidelines as to penalties

392 Penalties imposed by OFCOM

Disclosure of information

393 General restrictions on disclosure of information

Notifications etc. and electronic working

394 Service of notifications and other documents 395 Notifications and documents in electronic form 396 Timing and location of things done electronically

Other miscellaneous provisions

397 Purchase of Duchy of Lancaster land 398 Repeal of certain provisions of the Telecommunications Act 1984

Supplemental

399 Expenses 400 Destination of licence fees and penalties 401 Power of OFCOM to retain costs of carrying out spectrum functions 402 Power of Secretary of State to make orders and regulations 403 Regulations and orders made by OFCOM 404 Criminal liability of company directors etc. 405 General interpretation 406 Minor and consequential amendments, transitionals and repeals 407 Pre-consolidation amendments 408 Transitional provision for anticipatory carrying out of functions 409 Modifications consequential on regulations implementing Directives 410 Application of enactments to territorial sea and other waters 411 Short title, commencement and extent

Schedule 1 — Functions transferred to OFCOM Schedule 2 — Transfer schemes Schedule 3 — Amendments of Schedule 2 to the Telecommunications Act

1984

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Communications Act 2003 (c. 21)

Schedule 4 — Compulsory purchase and entry for exploratory purposes Schedule 5 — Procedure for grants of recognised spectrum access Schedule 6 — Fixed penalties for wireless telegraphy offences Schedule 7 — Seizure and forfeiture of apparatus Schedule 8 — Decisions not subject to appeal Schedule 9 — Arrangements about carrying on of C4C’s activities

Schedule 10 — Licensing the public teletext service Part 1 — Applications for and award of licence Part 2 — Conditions and enforcement of licence Part 3 — Interpretation of Schedule

Schedule 11 — Approval, imposition and modification of networking arrangements

Schedule 12 — Corresponding obligations of the BBC and Welsh Authority Part 1 — The BBC Part 2 — The Welsh Authority

Schedule 13 — Financial penalties under the Broadcasting Acts Part 1 — Broadcasting Act 1990 Part 2 — Broadcasting Act 1996

Schedule 14 — Media ownership rules Part 1 — Channel 3 services Part 2 — Radio multiplex services Part 3 — Local sound programme services Part 4 — Religious bodies etc. Part 5 — Supplemental provisions of Schedule

Schedule 15 — Amendments of Broadcasting Acts Part 1 — Amendments of the 1990 Act Part 2 — Amendments of the 1996 Act

Schedule 16 — Further amendments in connection with media mergers Schedule 17 — Minor and Consequential Amendments Schedule 18 — Transitional Provisions Schedule 19 — Repeals

xvii

ELIZABETH II c. 21

Communications Act 2003

2003 CHAPTER 21

An Act to confer functions on the Office of Communications; to make provision about the regulation of the provision of electronic communications networks and services and of the use of the electro-magnetic spectrum; to make provision about the regulation of broadcasting and of the provision of television and radio services; to make provision about mergers involving newspaper and other media enterprises and, in that connection, to amend the Enterprise Act 2002; and for connected purposes. [17th July 2003]

E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

PART 1

FUNCTIONS OF OFCOM

Transferred and assigned functions

1 Functions and general powers of OFCOM

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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;

(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.

2 Transfer of functions of pre-commencement regulators

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

General duties in carrying out functions

3 General duties of OFCOM

(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;

(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;

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

4 Duties for the purpose of fulfilling Community obligations

(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;

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

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

(i) the International Telecommunication Union;

(ii) the International Organisation for Standardisation; or

(iii) the International Electrotechnical Committee.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

5 Directions in respect of networks and spectrum functions

(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;

(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.

6 Duties to review regulatory burdens

(1) OFCOM must keep the carrying out of their functions under review with a view to securing that regulation by OFCOM does not involve—

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

7 Duty to carry out impact assessments

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

8 Duty to publish and meet promptness standards

(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.

9 Secretary of State’s powers in relation to promptness standards

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

Accessible domestic communications apparatus

10 Duty to encourage availability of easily usable apparatus

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

Media literacy

11 Duty to promote media literacy

(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.

OFCOM’s Content Board

12 Duty to establish and maintain Content Board

(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.

Communications Act 2003 (c. 21) Part 1 — Functions 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,

(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

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

or gratuity, or of any such similar benefits, to or in respect of that person.

13 Functions of the Content Board

(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

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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

Functions for the protection of consumers

14 Consumer research

(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—

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(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;

(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.

15 Duty to publish and take account of research

(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.

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(5) The publication of research under this section must be in such manner as OFCOM consider appropriate.

16 Consumer consultation

(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);

(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.

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(4) Those services and facilities are—

(a) electronic communications services;

(b) associated 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;

(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 is 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.

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(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—

(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.

17 Membership etc. of the Consumer Panel

(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,

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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;

(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.

18 Committees and other procedure of the Consumer Panel

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

19 Power to amend remit of Consumer Panel

(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.

Advisory committees

20 Advisory committees for different parts of the United Kingdom

(a) England;

(b) Wales;

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

21 Advisory committee on elderly and disabled persons

(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.

International matters

22 Representation on international and other bodies

(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;

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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

“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;

(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.

23 Directions for international purposes in respect of broadcasting functions

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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;

(d) the other provisions of this Act so far as relating to the 1990 Act, the 1996 Act or that Part.

General information functions

24 Provision of information to the Secretary of State

(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.

25 Community requirement to provide information

(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,

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

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).

26 Publication of information and advice for consumers etc.

(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;

(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.

Employment in broadcasting

27 Training and equality of opportunity

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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.

Charging

28 General power to charge for services

(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.

Guarantees

29 Secretary of State guarantees for OFCOM borrowing

(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

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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 functions

30 Transfers of property etc. from pre-commencement regulators

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of 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.

31 Transitional functions and abolition of pre-commencement regulators

(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.

Communications Act 2003 (c. 21) Part 1 — Functions of OFCOM

(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).

PART 2

NETWORKS, SERVICES AND THE RADIO SPECTRUM

CHAPTER 1

ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES

Preliminary

32 Meaning of electronic communications networks and services

(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;

Communications Act 2003 (c. 21) Part 2 — Networks, services and the radio spectrum

Chapter 1 — Electronic communications networks and services

(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 providers

33 Advance notification to OFCOM

(1) A person shall not—

(a) provide a designated electronic communications network,

Communications Act 2003 (c. 21) Part 2 — Networks, services and the radio spectrum Chapter 1 — Electronic communications networks and services

(b) provide a designated electronic communications service, or

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;

(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.

Communications Act 2003 (c. 21) Part 2 — Networks, services and the radio spectrum

Chapter 1 — Electronic communications networks and services

(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.

34 Designations and requirements for the purposes of s. 33

(1) Before—

(a) making or withdrawing a designation for the purposes of section 33, or

Communications Act 2003 (c. 21) Part 2 — Networks, services and the radio spectrum Chapter 1 — Electronic communications networks and services

(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.

35 Notification of contraventions of s. 33

(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;

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(b) they have determined that, in those circumstances, a shorter period would be appropriate; and

(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.

36 Enforcement notification for contravention of s. 33

(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

(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.

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(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

37 Penalties for contravention of s. 33

(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

(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

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(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 providers

38 Fixing of charges

(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),

(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;

(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

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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)(n( � 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;

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(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

(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.

39 Supplemental provision about fixing charges

(1) OFCOM’s power to fix a charge under section 38—

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(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;

(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;

(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.

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40 Notification of non-payment of charges

(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

(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.

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(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.

41 Penalties for non-payment of charges

(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

(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.

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(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).

42 Suspending service provision for non-payment

(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

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(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.

43 Enforcement of directions under s. 42

(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

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(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 charges

44 Duty of OFCOM to keep publicly accessible register

(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;

(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.

45 Power of OFCOM to set conditions

(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—

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(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—

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(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.

46 Persons to whom conditions may apply

(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

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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”).

47 Test for setting or modifying conditions

(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;

(d) in relation to what it is intended to achieve, transparent.

48 Procedure for setting, modifying and revoking conditions

(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;

(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.

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(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.

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;

(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;

(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

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(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.

50 Delivery of copies of notifications etc.

(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

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(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

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.

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(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-matter

51 Matters to which general conditions may relate

(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

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(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 interests

52 Conditions relating to customer interests

(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.

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(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).

53 Approval of codes of practice for the purposes of s. 52

(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.

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(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

(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.

54 Approval of dispute procedures for the purposes of s. 52

(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

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(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

(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.

55 Orders by OFCOM in the absence of conditions under s. 52

(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;

(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;

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(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 numbers

56 The National Telephone Numbering Plan

(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.

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(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;

(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;

(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.

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57 Conditions to secure access to telephone numbers

(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.

58 Conditions about allocation and adoption of numbers

(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

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(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.

(6) General conditions providing for payments to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a) must set out the principles according to which the amounts of the payments are to be determined;

(b) may provide for the payments to consist of a lump sum in respect of a particular allocation or transfer or of sums payable periodically while an allocation remains in force, or of both;

(i) any indication according to which the allocation has been made as mentioned in subsection (5); or

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(ii) any other factors (including the costs incurred by OFCOM in connection with the carrying out of their functions by virtue of section 56 and this section) as OFCOM think fit.

(7) General conditions may—

(a) make modifications from time to time of, or of the method of determining, the amounts of periodic payments falling to be made by virtue of conditions containing provision authorised by this section; and

(b) make different provision in relation to different descriptions of communications provider and different descriptions of telephone number.

(8) Nothing in subsection (7) authorises the modification, after it has been fixed, of the amount of a periodic payment fixed in accordance with arrangements made in relation to numbers allocated as mentioned in subsection (5)(b).

(9) Payments that are required to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a) must be paid to them as soon as they become due in accordance with the conditions imposing the obligation to pay; and

(b) if not so paid, are to be recoverable by them accordingly.

59 Telephone numbering conditions binding non-providers

(1) OFCOM may set conditions under this section that apply to persons other than communications providers and relate to—

(a) the allocation of telephone numbers to such persons;

(b) the transfer of allocations to and from such persons; and

(2) The conditions that may be set under this section include conditions imposing obligations corresponding to any of the obligations that may be imposed on communications providers by general conditions making provision for, or in connection with—

(a) the allocation of telephone numbers;

(b) the transfer of allocations; or

(3) Subsection (10) of section 45 applies to OFCOM’s power to set a condition under this section as it applies to their power to set a condition under that section.

(4) Sections 47 to 49 apply in relation to—

(a) the setting of conditions under this section and the modification and revocation of such conditions; and

(b) the giving, modification or withdrawal of any direction, approval or consent for the purposes of a condition under this section,

as they apply in the case of general conditions and in the case of directions, approvals and consents given for the purposes of general conditions.

(5) It shall be the duty of a person who—

(a) is not a communications provider, but

(b) applies for the allocation of a telephone number, or is allocated such a number,

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to comply with any conditions set under this section.

(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

(7) Subsection (6) does not apply in the case of a person against whom the obligations contained in the condition in question are enforceable (by virtue of his having become a communications provider) as obligations imposed by general conditions.

60 Modification of documents referred to in numbering conditions

(1) This section applies where numbering conditions for the time being have effect by reference to provisions, as they have effect from time to time, of—

(a) the National Telephone Numbering Plan; or

(b) another document published by OFCOM.

(2) OFCOM must not revise or otherwise modify the relevant provisions unless they are satisfied that the revision or modification is—

(a) objectively justifiable in relation to the matters to which it relates;

(b) not such as to discriminate unduly against particular persons or against a particular description of persons;

(d) in relation to what it is intended to achieve, transparent.

(3) Before revising or otherwise modifying the relevant provisions, OFCOM must publish a notification—

(a) stating that they are proposing to do so;

(b) specifying the Plan or other document that they are proposing to revise or modify;

(d) giving their reasons for making the proposal; and

(e) specifying the period within which representations may be made to OFCOM about their proposal.

(4) That period must be one ending not less than one month after the day of the publication of the notification.

(5) OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (3) 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 to the attention of such persons as OFCOM consider appropriate.

(7) In this section—

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“numbering conditions” means—

(a) general conditions the making of which is authorised by section 57 or 58;

(b) conditions set under section 59;

“the relevant provisions”, in relation to the Plan or document, means the provisions of the Plan or document by reference to which (as they have effect from time to time) the numbering conditions in question have effect.

61 Withdrawal of telephone number allocations

(1) Where OFCOM have allocated telephone numbers for the purposes of any numbering conditions, they may withdraw that allocation if, and only if, the case is one in which the withdrawal of an allocation is authorised by this section.

(2) The withdrawal of an allocation is authorised (subject to section 62) if—

(a) consent to the withdrawal is given by the person to whom the numbers are for the time being allocated;

(b) the withdrawal is made for the purposes of a transfer of the allocation required by numbering conditions;

(c) the withdrawal is made for the purposes of a numbering reorganisation applicable to a particular series of telephone numbers;

(d) the withdrawal is made in circumstances specified in the numbering conditions and for the purpose of securing that what appears to OFCOM to be the best and most efficient use is made of the numbers and other data that are appropriate for use as telephone numbers;

(e) the allocated numbers are numbers that have not been adopted during such period after their allocation as may be specified in the numbering conditions; or

(f) the allocated numbers are comprised in a series of numbers which have not to a significant extent been adopted or used during such period as may be so specified.

(3) The withdrawal of an allocation is also authorised where—

(a) there have been serious and repeated contraventions, by the person to whom the allocation is for the time being allocated, of the numbering conditions; and

(b) it appears to OFCOM that the taking of other steps in respect of the contraventions is likely to prove ineffective for securing future compliance.

(4) The withdrawal of an allocation is also authorised where—

(a) the person to whom the allocation is for the time being allocated is not a communications provider; and

(b) it appears to OFCOM that contraventions by that person of numbering conditions makes the withdrawal of the allocation appropriate.

(5) OFCOM’s power to set conditions specifying circumstances for the purposes of subsection (2)(d), and their power to withdraw an allocation in the specified circumstances, are each exercisable only in a manner that does not discriminate unduly—

(a) against particular communications providers;

(b) against particular users of the allocated numbers; or

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and the purposes for which those powers may be exercised do not include the carrying out of a numbering reorganisation of the sort mentioned in subsection (2)(c).

(6) Where OFCOM are proposing to withdraw an allocation in exercise of the power conferred by virtue of subsection (2)(e) or (f), they must—

(a) give a notification of their proposal;

(b) consider any representations made to them about the proposal within the period of one month following the day on which the notification is given; and

(c) ensure that the withdrawal (if OFCOM decide to proceed with it after considering those representations) does not take effect until the end of the three months beginning with the end of the period mentioned in paragraph (b).

(7) A notification for the purposes of subsection (6) must be given in such manner as OFCOM consider appropriate for bringing it to the attention of—

(a) the person to whom the numbers to which the proposed withdrawal relates are for the time being allocated;

(b) every person appearing to OFCOM to be a person to whom communications are or may be transmitted using one of those numbers for identifying the destination or route;

(d) every other person who, in OFCOM’s opinion, is likely to be affected by the proposal.

(8) For the purposes of this section there are repeated contraventions by a person of numbering conditions to the extent that—

(a) in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that a contravention of a numbering condition 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 numbering conditions;

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 conditions.

(9) In this section “numbering conditions” means—

(a) general conditions the making of which is authorised by section 58; or

(b) conditions set under section 59.

62 Numbering reorganisations

(1) This section applies to the withdrawal of an allocation for the purposes of a numbering reorganisation that is applicable to a particular series of telephone numbers.

(2) The allocation is to be withdrawn only if the reorganisation, so far as it relates to numbers of any description, is not such as to discriminate unduly—

(a) against particular communications providers;

(b) against particular users of the allocated numbers; or

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(3) The allocation must not be withdrawn if the reorganisation fails to provide for withdrawn allocations to be replaced by allocations of telephone numbers so nearly resembling the numbers to which the withdrawal relates as the purpose of the reorganisation allows.

(4) Where a replacement allocation is made for the purposes of the re- organisation—

(a) no payment is to be made to OFCOM in respect of the making of the replacement allocation; but

(b) subsection (5) is to apply.

(5) Where this subsection applies—

(a) a provision for the making of periodic payments in respect of the withdrawn allocation is to be treated, to the extent that OFCOM determine that it should, as a provision requiring the making of periodic payments in respect of the replacement allocation; and

(b) OFCOM may, if they think fit, make such repayments or adjustments of a provision for payment as appear to them to be appropriate in consequence of differences between—

(i) the numbers to which the withdrawn allocation relates; and

(ii) the numbers to which the replacement allocation relates.

63 General duty as to telephone numbering functions

(1) It shall be the duty of OFCOM, in the carrying out of their functions under sections 56 to 62—

(a) to secure that what appears to them to be the best use is made of the numbers that are appropriate for use as telephone numbers; and

(b) to encourage efficiency and innovation for that purpose.

(2) It shall also be the duty of OFCOM, in carrying out those functions, to secure that there is no undue discrimination by communications providers against other communications providers in relation to the adoption of telephone numbers for purposes connected with the use by one communications provider, or his customers, of an electronic communications network or electronic communications service provided by another.

(3) In this section “number” has the same meaning as in section 56.

General conditions: must-carry obligations

64 Must-carry obligations

(1) General conditions may include conditions making any provision that OFCOM consider appropriate for securing that particular services are broadcast or otherwise transmitted by means of the electronic communications networks described in the conditions.

(2) A general condition containing provision authorised by this section is not (subject to subsection (4)) to require a service to be broadcast or otherwise transmitted by means of an electronic communications network unless—

(a) the service is included in the list of must-carry services; and

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(b) the effect of the requirement is confined to networks by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes.

(3) That list is as follows—

(a) any service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;

(b) the Channel 3 services so far as provided in digital form;

(d) Channel 5 so far as provided in digital form;

(e) S4C Digital;

(f) the digital public teletext service.

(4) General conditions making provision authorised by this section in relation to a listed service must, to such extent as OFCOM consider appropriate (and subject to subsection (5))—

(a) apply the requirement to broadcast or otherwise transmit that service to every service which is an ancillary service by reference to the listed service; and

(b) provide for the listed service to be treated for the purposes of the conditions as constituting such other services comprised in or provided with that service as may be determined by OFCOM.

(5) General conditions making provision authorised by this section must also comply with all such restrictions (if any) as may be imposed by order made by the Secretary of State as to the maximum and minimum amounts, or proportions, of available capacity that are to be required by such conditions to be used in the case of a network for the broadcasting or other transmission of particular services, or descriptions of service.

(6) In making an order under subsection (5) the Secretary of State must have regard to—

(a) the objective of securing that services included in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to be applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable; and

(b) the need to secure that the amount of capacity available in the case of every network for making other services available is reasonable and, accordingly, that the burden of complying with conditions set in accordance with this section is proportionate to the public benefit to be secured by that objective.

(7) It shall be the duty of the Secretary of State from time to time to review—

(a) the list of must-carry services; and

(b) any requirements for the time being in force under this section with respect to the terms on which services must be broadcast or otherwise transmitted.

(8) Where the Secretary of State carries out such a review, he must consult the following about the matters under review—

(a) OFCOM; and

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(b) such persons who, in his opinion, are likely to be affected by a modification of the list of must-carry services, or who represent any of those persons, as he thinks fit.

(9) If, on such a review, he considers it appropriate to do so, the Secretary of State may by order modify the list of must-carry services.

(10) In determining whether it is appropriate for the purposes of subsection (9) to add a service to the list of must-carry services or to remove it, the Secretary of State must have regard, in particular, to—

(a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;

(b) the extent to which the service (if it were not included in the list) would nevertheless be made available to an acceptable technical standard by means of the networks to which conditions set in accordance with this section apply;

(c) the capacity left available, after the requirements of those conditions have been complied with, for the broadcasting or other transmission of material by means of each of those networks; and

(d) the need to secure that the burden of complying with conditions so set is proportionate to the objective of securing that the services in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable.

(11) The Secretary of State may also, if (whether on such a review or in any other circumstances) he considers it appropriate to do so, by order make provision imposing requirements as to what, as between—

(a) the person providing a must-carry service, and

(b) the person providing a network by means of which it is to be provided,

are to be the terms on which the service is to be broadcast or otherwise transmitted, in pursuance of general conditions set in accordance with this section, by means of that network.

(12) An order under subsection (11) may provide for the terms to be determined by OFCOM in accordance with the provisions of the order.

(13) Before making an order under subsection (5), and before making an order under subsection (11) in a case in which there has been no review under subsection (7), the Secretary of State must consult—

(a) OFCOM, and

(b) such persons who, in his opinion, are likely to be affected by the order, or who represent any of those persons, as he thinks fit.

(14) Section 362 applies for construing this section as it applies for the purposes of Part 3.

Universal service conditions

65 Obligations to be secured by universal service conditions

(1) The Secretary of State must by order (“the universal service order”) set out the extent to which the things falling within subsection (2) must, for the purpose of securing compliance with Community obligations for the time being in

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force, be provided, made available or supplied throughout the United Kingdom.

(2) Those things are—

(a) electronic communications networks and electronic communications services;

(b) facilities capable of being made available as part of or in connection with an electronic communications service;

(d) directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and

(e) directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.

(3) The universal service order may contain guidance about matters relating to the pricing of things that the order says must be provided, made available or supplied.

(4) Before making or varying the universal service order, the Secretary of State must consult OFCOM and such other persons as he considers appropriate.

66 Designation of universal service providers

(1) OFCOM may by regulations make provision for the designation of the persons to whom universal service conditions are to be applicable.

(2) Subject to subsection (3), those regulations are not to authorise the designation of a person other than a communications provider.

(3) The regulations may provide for a person other than a communications provider to be designated for the purposes only of conditions relating to—

(a) the supply of directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and

(b) the making available of directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.

(4) OFCOM may from time to time—

(a) review the designations for the time being in force in accordance with regulations under this section; and

(b) on such a review, consider what (if any) universal service conditions should continue to apply to each of the designated persons.

(5) The procedure to be followed in the case of every such review must be the procedure provided for in regulations made by OFCOM.

(6) Regulations made by OFCOM under this section must provide for a person’s designation as a person to whom universal service conditions are to be applicable to cease to have effect where, in any such case as may be described in the regulations, the universal service conditions applied to him are all revoked.

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(7) Regulations made by OFCOM under this section providing a procedure for the designation of persons, or for the conduct of a review under subsection (4), must not provide for any procedure other than one appearing to OFCOM—

(a) to be efficient, objective and transparent; and

(b) not to involve, or to tend to give rise to, any undue discrimination against any person or description of persons.

(8) Where—

(a) OFCOM designate a person in accordance with regulations under this section, or

(b) a designation of a person in accordance with any such regulations ceases to have effect,

they must give a notification of that designation, or of that fact, to the European Commission.

(9) A notification under this section must identify the person who has been designated, or the person whose designation has ceased to have effect.

(10) Section 403 applies to the power of OFCOM to make regulations under this section.

67 Subject-matter of universal service conditions

(1) OFCOM may set any such universal service conditions as they consider appropriate for securing compliance with the obligations set out in the universal service order.

(2) Universal service conditions applied to a person must include a condition requiring him to publish information about his performance in complying with the universal service conditions that apply to him.

(3) A condition set in accordance with subsection (2) must contain provision which—

(a) requires information published in accordance with it to be updated from time to time and published again;

(b) requires information so published to satisfy the requirements that OFCOM consider appropriate for securing that it is adequate; and

(c) requires information so published to be framed by reference to the quality of service parameters, definitions and measurement methods for the time being set out in Annex III to the Universal Service Directive.

(4) A condition set in accordance with that subsection may impose requirements as to—

(a) the times at which information published in accordance with it is to be published; and

(b) the manner in which that information is to be published.

(5) Universal service conditions may impose an obligation on a person to whom they apply to do one or both of the following, if required to do so by OFCOM—

(a) to make facilities available for enabling information published in pursuance of a condition applied to that person under subsection (2) to be independently audited;

(b) to meet the costs of any independent auditing of that information that is required by OFCOM.

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(6) The reference in subsection (5) to the independent auditing of information is a reference to its being audited by a qualified auditor—

(a) for accuracy; and

(b) for its usefulness in the making of comparisons with information published by other designated universal service providers.

(7) Universal service conditions may impose performance targets on designated universal service providers with respect to any of the matters in relation to which obligations may be imposed by such conditions.

(8) In setting a universal service condition, OFCOM must have regard to any guidance about matters relating to pricing that is contained in the universal service order.

(9) In this section “qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor.

68 Tariffs etc. for universal services

(1) It shall be the duty of OFCOM—

(a) to keep under review universal service tariffs; and

(b) to monitor changes to those tariffs.

(2) Universal service conditions may require one or more of the following—

(a) the use of a common tariff, or of common tariffs, in relation to anything mentioned in section 65(2);

(b) the use, in such cases as may be specified or described in the conditions, of such special tariffs in relation to anything so mentioned as may be so specified or described;

(c) the fixing of tariffs used in accordance with the conditions by the use of such methods, and by reference to such methods of computing costs, as may be so specified or described.

(3) Universal service conditions must secure that the terms on which a person is provided with anything required by the universal service order do not require him—

(a) to pay for an unnecessary additional service; or

(b) to pay, in respect of anything required by the order, any amount that is attributable to the provision to him of such a service.

(4) The references in subsection (3), in relation to a person, to an unnecessary additional service are references to anything the provision of which—

(a) he has to accept by reason of his being provided, at his request, with something required by the order (“the requested service”); and

(b) is not necessary for the purpose of providing him with the requested service.

(5) It shall be the duty of OFCOM, in setting a universal service condition about universal service tariffs, to have regard to anything ascertained by them in the performance of their duty under subsection (1).

(6) References in this section to a universal service tariff are references to any of the tariffs used by designated universal service providers in relation to the things for the time being required by the universal service order.

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(7) References in this section to providing a person with anything include references to making it available or supplying it to him.

(8) In this section “tariff” includes a pricing structure.

69 Directories and directory enquiry facilities

(1) This section applies where universal service conditions require a designated universal service provider—

(a) to supply a directory capable of being used in connection with the use of an electronic communications network or electronic communications service; or

(b) to make available directory enquiry facilities capable of being used for purposes connected with use of such a network or service.

(2) The universal service conditions applied to the provider must include the conditions that OFCOM consider appropriate for securing that the provider does not unduly discriminate against a source of relevant information—

(a) in the compiling of the directory or the answering of directory enquiries; or

(b) in the treatment in the directory, or for the purposes of the facilities, of any relevant information from that source.

(3) In this section—

(a) references to relevant information are references to information provided for inclusion in the directory or for use in the answering of directory enquiries; and

(b) references to a source of relevant information are references to a communications provider or designated universal service provider who provides relevant information.

70 Review of compliance costs

(1) OFCOM may from time to time review the extent (if any) of the financial burden for a particular designated universal service provider of complying in relation to any matter with any one or more of the universal service conditions applied to him.

(2) Where—

(a) regulations under section 66 require the financial burden of so complying to be taken into account in determining whom to designate, and

(b) the regulations provide for a particular method of calculating that burden to be used for the purposes of that determination,

that must be the method of calculation applied on a review under this section.

(3) Where subsection (2) does not apply, the financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the designated universal service provider from—

(a) his designation; and

(b) the application to him of universal service conditions.

(4) After carrying out a review under this section OFCOM must either—

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(a) cause the calculations made by them on the review to be audited by a person who appears to them to be independent of designated universal service providers; or

(b) themselves carry out an audit of those calculations.

(5) OFCOM must ensure, in the case of every audit carried out under subsection (4), that a report on the audit—

(a) is prepared; and

(b) if not prepared by OFCOM, is provided to them.

(6) It shall be the duty of OFCOM, in the case of every review under this section, to publish—

(a) their conclusions on the review; and

(b) a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.

(7) The publication of anything under subsection (6) must be a publication 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.

71 Sharing of burden of universal service obligations

(1) This section applies where OFCOM—

(a) have concluded, on a review under section 70, that complying in relation to any matter with universal service conditions imposes a financial burden on a particular designated universal service provider; and

(b) have published that conclusion in accordance with that section.

(2) OFCOM must determine, in the case of the designated universal service provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.

(3) If—

(a) OFCOM determine that it would be unfair for the designated universal service provider to bear, or to continue to bear, the whole or a part of the burden, and

(b) an application for a determination under this subsection is made to OFCOM by that provider,

OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.

(4) The making of any of the following must be in accordance with regulations made by OFCOM—

(a) a determination by OFCOM of the extent of the financial burden that exists for the designated universal service provider of complying in relation to any matter with universal service conditions;

(b) an application for the purposes of subsection (3)(b);

(c) a determination by OFCOM of whether it is or would be unfair for the designated universal service provider to bear, or to continue to bear, the burden of complying in relation to any matter with universal service conditions;

(d) a determination of the extent (if any) to which that is or would be unfair.

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(5) The assessment, collection and distribution of contributions under subsection (3) is not to be carried out except in accordance with a mechanism provided for in a scheme contained in regulations made by OFCOM.

(6) It shall be the duty of OFCOM to exercise their power to make regulations under this section in the manner which they consider will secure that the assessment, collection and distribution of contributions under subsection (3) is carried out—

(a) in an objective and transparent manner;

(b) in a manner that does not involve, or tend to give rise to, any undue discrimination against particular communications providers or particular designated universal service providers, or against a particular description of them; and

(c) in a manner that avoids, or (if that is impracticable) at least minimises, any distortion of competition or of customer demand.

(7) Regulations made by OFCOM under this section may provide for a scheme containing the provision mentioned in subsection (5), and for any fund set up for the purposes of such a scheme, to be administered either—

(a) by OFCOM; or

(b) by such other person as may be specified in the regulations.

(8) A person other than OFCOM is not to be specified in regulations under this section as the administrator of such a scheme or fund unless he is a person who OFCOM are satisfied is independent of both—

(a) the persons who are designated universal service providers; and

(b) communications providers to whom general conditions are applicable.

(9) Section 403 applies to the powers of OFCOM to make regulations under this section.

72 Report on sharing mechanism

(1) This section applies where regulations under section 71 provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.

(2) OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—

(a) every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in the universal service order;

(b) the market benefits for each designated universal service provider that have accrued to him during that period from his designation and from the application to him of universal service conditions; and

(3) The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71.

(4) Every subsequent report must be prepared in relation to the period of twelve months beginning with the end of the period to which the previous report applied.

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(5) Every report under this section—

(a) must be prepared as soon as practicable after the end of the period to which it is to apply; and

(b) must be published as soon as practicable after its preparation is complete.

(6) OFCOM is not required under this section—

(a) to publish any matter that is confidential in accordance with subsection (7) or (8); or

(b) to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.

(7) 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.

(8) 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.

(9) The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.

Access-related conditions

73 Permitted subject-matter of access-related conditions

(1) The only conditions that may be set under section 45 as access-related conditions are those authorised by this section.

(2) Access-related conditions may include conditions relating to the provision of such network access and service interoperability as appears to OFCOM appropriate for the purpose of securing—

(a) efficiency on the part of communications providers and persons making associated facilities available;

(b) sustainable competition between them; and

(3) Access-related conditions may include conditions appearing to OFCOM to be appropriate for securing that persons to whom the electronic communications code applies participate, in cases where there are no viable alternative arrangements that may be made, in arrangements for—

(a) sharing the use of electronic communications apparatus; and

(b) apportioning and making contributions towards costs incurred in relation to shared electronic communications apparatus.

(4) Access-related conditions may include one which—

(a) is of a technical or operational nature;

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(b) appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with any SMP services condition falling within section 87(3); and

(i) a person who is required by such an SMP services condition to confer any entitlements to network access; or

(ii) a person on whom such an entitlement is or may be conferred in pursuance of a requirement imposed by such an SMP services condition.

(5) Access-related conditions may include conditions containing any provision required by section 75(2).

74 Specific types of access-related conditions

(1) The conditions that may be set by virtue of section 73(2) include conditions which, for the purpose of securing end-to-end connectivity for the end-users of public electronic communications services provided by means of a series of electronic communications networks—

(a) impose obligations on a person controlling network access to any of those networks; and

(b) require the interconnection of the networks.

(2) The conditions that may be set by virtue of section 73(2) also include such conditions imposing obligations on a person providing facilities for the use of application programme interfaces or electronic programme guides as OFCOM consider to be necessary for securing—

(a) that persons are able to have access to such programme services provided in digital form as OFCOM may determine; and

(b) that the facility for using those interfaces or guides is provided on terms which—

(i) are fair and reasonable; and

(ii) do not involve, or tend to give rise to, any undue discrimination against any person or description of persons.

(3) In this section—

“application programme interface” means a facility for allowing software to make use, in connection with any of the matters mentioned in subsection (4), of facilities contained in other software;

“electronic programme guide” means a facility by means of which a person has access to any 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; and

(b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

“end-to-end connectivity” means the facility—

(a) for different end-users of the same public electronic communications service to be able to communicate with each other; and

(b) for the end-users of different such services to be able, each using the service of which he is the end-user, to communicate with each other.

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(4) The matters mentioned in subsection (3), in the definition of “application programme interface”, are—

(a) allowing a person to have access to programme services;

(b) allowing a person, other than a communications provider or a person who makes associated facilities available, to make use of an electronic communications network by means of which a programme service is broadcast or otherwise transmitted;

(5) This section is not to be construed as restricting the provision that may be made under section 73(2).

75 Conditional access systems and access to digital services

(1) It shall be the duty of OFCOM, when setting a condition falling within section 73(4), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.

(2) It shall be the duty of OFCOM to ensure—

(a) that access-related conditions are applied to every person who provides a conditional access system in relation to a protected programme service; and

(b) that those conditions make all such provision as is required by the provision contained from time to time in Part I of Annex I to the Access Directive (conditions relating to access to digital programme services).

(3) In this section—

“conditional access system” means any system, facility, arrangements or technical measure under or by means of which access to programme services requires—

(a) a subscription to the service or to a service that includes that service; or

(b) an authorisation to view it, or to listen to it, on a particular occasion;

“protected programme service” means a programme service the programmes included in which cannot be viewed or listened to in an intelligible form except by the use of a conditional access system.

76 Modification and revocation of conditions imposed under s. 75

(1) This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).

(2) OFCOM must not give effect to a proposal to modify or revoke any of the conditions unless—

(a) they have carried out an analysis for the purpose of determining in accordance with this Chapter whether that person is or remains a person on whom SMP services conditions are capable of being imposed;

(b) they have determined in consequence of that analysis that he is not; and

(c) they are satisfied that the modification or revocation will not have an adverse effect on any or all of the matters mentioned in subsection (3).

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(3) Those matters are—

(a) the accessibility to any persons of services that are for the time being included in the list of must-carry services in section 64;

(b) the prospects for effective competition in the market for programme services provided by being broadcast or otherwise transmitted in digital form; and

(c) the prospects for effective competition in the markets for conditional access systems and other associated facilities.

(4) In this section “conditional access system” has the same meaning as in section 75.

Privileged supplier conditions

77 Imposition of privileged supplier conditions

(1) It shall be the duty of OFCOM to secure that privileged supplier conditions containing all such provision falling within subsection (3) as they consider appropriate are applied to every public communications provider to whom this section applies.

(2) This section applies to every public communications provider who—

(a) enjoys special or exclusive rights in relation to the provision of any non- communications services; and

(b) is not such a provider in respect only of associated facilities.

(3) The provision that may be contained in a condition set under section 45 as a privileged supplier condition is any provision that OFCOM consider appropriate for any one or more of the following purposes—

(a) requiring the provider to whom it applies to keep separate accounts in relation to his public electronic communications network or public electronic communications service and other matters;

(b) requiring that provider to submit the accounts of the different parts of his undertaking, and any financial report relating to a part of that undertaking, to a qualified auditor for auditing;

(d) securing, by means other than the keeping of separate accounts, the structural separation of the different parts of his undertaking.

(4) OFCOM is not required under this section to apply a condition to a person where they are satisfied that that person has an annual turnover in relation to all his communications activities that is less than €50 million.

(5) Where in a case falling within subsection (4) OFCOM are not required to apply a privileged supplier condition to a person, they may apply such a condition to him if they think fit.

(6) The reference in subsection (4) to a person’s communications activities is a reference to any activities of his that consist in, or are connected with, either or both of the following—

(a) the provision of any one or more electronic communications networks;

(b) the provision of any one or more electronic communications services.

(7) The making, for the purposes of subsection (4), of—

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(a) a determination of the period in respect of which a person’s annual turnover in relation to any activities is computed, and

(b) a determination of the amount in Euros of that turnover for any period,

must be in accordance with such rules as OFCOM consider to be reasonable.

(8) OFCOM must publish any rules made by them for the purposes of subsection (7) in such manner as they consider appropriate for bringing them to the attention of the persons who, in their opinion, are likely to be affected by them.

(9) In this section—

“non-communications services”, in relation to a person, means services other than those consisting in, or connected with, the provision by him of—

(a) an electronic communications network; or

(b) an electronic communications service;

“qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor;

“special or exclusive rights” has the same meaning as in Article 86 of the Treaty establishing the European Community.

SMP conditions: procedure

78 Circumstances required for the setting of SMP conditions

(1) For the purposes of this Chapter a person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.

(2) References in this section to dominance of a market must be construed in accordance with any applicable provisions of Article 14 of the Framework Directive.

(3) A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.

(4) A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.

(5) The matters that must be taken into account in determining whether a combination of persons enjoys a position of dominance of a services market include, in particular, the matters set out in Annex II to the Framework Directive.

79 Market power determinations

(1) Before making a market power determination, OFCOM must—

(a) identify (by reference, in particular, to area and locality) the markets which in their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and

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(b) carry out an analysis of the identified markets.

(2) In identifying or analysing any services market for the purposes of this Chapter, OFCOM must take due account of all applicable guidelines and recommendations which—

(a) have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and

(b) relate to market identification and analysis.

(3) In considering whether to make or revise a market power determination in relation to a services market, OFCOM must take due account of all applicable guidelines and recommendations which—

(a) have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and

(b) relate to market analysis or the determination of what constitutes significant market power.

(4) The way in which—

(a) a market is to be identified for the purposes of this section, or

(b) a market power determination is to be made,

is by the publication of a notification containing the identification or determination.

(5) Notifications for the purposes of subsection (4)—

(a) may be given separately;

(b) may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or

(c) may be contained in a single notification under section 48(1) with respect to the setting or modification of an SMP condition and either—

(i) the making of the market power determination by reference to which OFCOM set or modify that condition; or

(ii) the making of that market power determination and the identification of the market in relation to which they make that determination.

(7) References in this section to guidelines and recommendations issued by the European Commission and to a Community instrument include references, respectively, to guidelines and recommendations issued after the commencement of this section and to a Community instrument made after the commencement of this section.

80 Proposals for identifying markets and for market power determinations

(1) Before OFCOM—

(a) identify a market for the purposes of making a market power determination, or

(b) make a market power determination,

they must publish a notification of what they are proposing to do.

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(2) Notifications for the purposes of subsection (1)—

(a) may be given separately;

(b) may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or

(c) may be contained in a single notification under section 48(2) with respect to the setting or modification of an SMP condition and either—

(i) the making of the market power determination by reference to which OFCOM are proposing to set or modify that condition; or

(ii) the making of that market power determination and the identification of the market in relation to which they are proposing to make that determination.

(3) A notification under this section relating to a proposal to identify a market or to make a market power determination must—

(a) state that OFCOM are proposing to identify that market or to make that market power determination;

(b) set out the effect of the proposal;

(d) specify the period within which representations may be made to OFCOM about their proposal.

(4) That period must be a period of not less than one month after the day of the publication of the notification.

(5) 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 to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

(6) OFCOM may give effect, with or without modifications, to a proposal with respect to which they have given a notification under this section 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.

(7) The power of OFCOM to give effect to such a proposal is subject to sections 82 and 83.

81 Delivery of copies of notifications under ss. 79 and 80

(1) OFCOM must send a copy of every notification published under section 79(4) or 80 to the Secretary of State.

(2) OFCOM must send to the European Commission a copy of every notification published under section 79(4) with respect to a market power determination in relation to a services market.

(3) OFCOM must send a copy of every notification published under section 80 which—

(a) relates to a proposal to identify a services market or to make a market power determination in relation to such a market; and

(b) in OFCOM’s opinion would affect trade between member States,

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to the European Commission and to the regulatory authorities of every other member State.

(4) OFCOM must, in every other case in which it appears to them appropriate to do so, send—

(a) to the European Commission, and

(b) to such of the regulatory authorities of the other member States as OFCOM think fit,

a copy of a notification published under section 80 which relates to a proposal to identify a services market or to make a market power determination in relation to such a market.

82 European Commission’s powers in respect of proposals

(1) This section applies, in the case of a notification under section 80 with respect to a proposal—

(a) to identify a particular market; or

(b) to make a market power determination.

(2) If, within the representations period, OFCOM are notified by the European Commission for the purposes of Article 7(4) of the Framework Directive (market identifications that do not conform to Commission recommendations and determinations that affect trade between member States)—

(a) that the Commission considers that giving effect to the proposal would create a barrier in relation to the single European market, or

(b) that the Commission has serious doubts as to whether giving effect to the proposal would be compatible with the requirements of any Community obligations,

OFCOM are not to give effect to the proposal before the end of a further two months beginning with the end of the representations period.

(3) Where, before the end of that two month period, the European Commission makes a decision in accordance with Article 7(4) of the Framework Directive that the proposal should be withdrawn, OFCOM—

(a) must withdraw it; and

(b) shall not be entitled to give effect to it.

(4) In this section “the representations period”, in relation to a notification under section 80, means the period specified in that notification for the making of representations about the proposals contained in it.

83 Special rules for transnational markets

(1) This section applies where a services market is for the time being identified by a decision of the European Commission under Article 15(4) of the Framework Directive as a transnational market.

(2) Where the market area includes the whole or a part of the United Kingdom, OFCOM must enter into and maintain arrangements with the other relevant regulatory authorities about—

(a) the extent to which the agreement of all the relevant regulatory authorities is required for the doing of any of the things mentioned in subsection (3); and

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(b) the procedures to be followed for securing that agreement where it is required.

(3) Those things are—

(a) the identification of the whole or a part of the market as a market in relation to which it is appropriate to determine whether a person has significant market power;

(b) the making of such a determination in relation to the whole or a part of the market;

(d) the modification or revocation of such a condition.

(4) OFCOM must not do any of the things mentioned in subsection (3) except in accordance with arrangements maintained under that subsection.

(5) Those arrangements may include arrangements requiring OFCOM, when doing any of those things, to comply with—

(a) a decision made, by one or more other regulatory authorities; or

(b) a decision made by a person appointed under the arrangements to act on behalf of some or all of the relevant regulatory authorities.

(6) In this section—

“market area”, in relation to a services market identified by the European Commission as a transnational market, means the area identified by that Commission as the area for which the market operates; and

“relevant regulatory authorities”, in relation to such a market, means the regulatory authorities for each member State the whole or a part of which is comprised in the market area.

84 Review of services market identifications and determinations

(1) This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.

(2) OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—

(a) reviewing market power determinations made on the basis of an earlier analysis;

(b) deciding whether to make proposals for the modification of SMP conditions set by reference to a market power determination made on such a basis.

(3) It shall be the duty of OFCOM to carry out such a further analysis of a services market as soon as reasonably practicable after recommendations are made by the European Commission that affect the matters that were taken into account, or could have been taken into account, in the case of the last analysis by OFCOM of that market.

(4) Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they must revoke every SMP services condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

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(5) Before carrying out a further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out an earlier analysis.

(6) Where, on such a review, OFCOM conclude that the appropriate markets have changed—

(a) they must identify the markets they now consider to be the appropriate ones; and

(b) those markets shall be the identified markets for the purposes of the further analysis.

(7) Sections 79 to 83 apply—

(a) in relation to the identification of a services market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b) in relation to the review of such a determination, as they apply in relation to the making of such a determination.

85 Review of apparatus market identifications and determinations

(1) This section applies where OFCOM have identified and analysed an apparatus market for the purposes of making a market power determination.

(2) OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—

(a) reviewing market power determinations made on the basis of an earlier analysis;

(b) deciding whether to make proposals for the modification of SMP conditions set by reference to any such market power determination.

(3) Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they shall revoke every SMP apparatus condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(4) Before carrying out any further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out any earlier analysis.

(5) Where on such a review OFCOM conclude that the appropriate markets have changed—

(a) they shall identify the markets they now consider to be the appropriate ones; and

(b) those markets shall be the identified markets for the purposes of the further analysis.

(6) Where on such a review OFCOM conclude that there is no person at all with significant market power in relation to the identified market—

(a) they must so inform the Secretary of State; and

(b) the Secretary of State may by order remove or restrict OFCOM’s power under this Chapter to set SMP apparatus conditions by reference to that market.

(7) Sections 79, 80 and 81(1) apply—

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(a) in relation to the identification of a apparatus market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b) in relation to the review of such a determination, as they apply in relation to the making of such a determination.

86 Cases where review required

(1) OFCOM must not set an SMP services condition by a notification which does not also make the market power determination by reference to which the condition is set unless—

(a) the condition is set by reference to a market power determination which has been reviewed under section 84 and, in consequence of that review, is confirmed in the notification setting the condition; or

(b) the condition is set by reference to a market power determination made in relation to a market in which OFCOM are satisfied there has been no material change since the determination was made.

(2) OFCOM must not modify or revoke SMP services conditions applying to a person except in a case falling within subsection (3) or (4).

(3) The first case is where, for the purpose of determining whether to make the modification or revocation, OFCOM have—

(a) carried out a further analysis under section 84 of the market in question; and

(b) reviewed the market power determination for the time being in force in that person’s case.

(4) The second case is where OFCOM are satisfied that there has not—

(a) in the case of an unmodified condition, since the condition was set, or

(b) in any other case, since the condition was last modified,

been a material change in the market identified or otherwise used for the purposes of the market power determination by reference to which the condition was set or last modified.

(5) OFCOM must not modify SMP apparatus conditions applying to a person except where, for the purpose of determining whether to make the modification or revocation, they have—

(a) carried out a further analysis under section 85 of the market in question; and

(b) reviewed the market power determination for the time being in force in that person’s case.

(6) A change is a material change for the purposes of subsection (1) or (4) if it is one that is material to—

(a) the setting of the condition in question; or

(b) the modification or revocation in question.

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SMP services conditions: subject-matter

87 Conditions about network access etc.

(1) Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—

(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and

(b) apply those conditions to that person.

(2) This section applies to—

(a) a person who provides a public electronic communications network; and

(b) a person who makes available facilities that are associated facilities by reference to such a network.

(3) This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects—

(a) the provision of network access to the relevant network;

(b) the use of the relevant network; and

(4) In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—

(a) the technical and economic viability, having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;

(b) the feasibility of the provision of the proposed network access;

(c) the investment made by the person initially providing or making available the network or other facility in respect of which an entitlement to network access is proposed;

(d) the need to secure effective competition in the long term;

(e) any rights to intellectual property that are relevant to the proposal; and

(f) the desirability of securing that electronic communications services are provided that are available throughout the member States.

(5) The conditions authorised by subsection (3) may include provision—

(a) for securing fairness and reasonableness in the way in which requests for network access are made and responded to; and

(b) for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions.

(6) The SMP conditions authorised by this section also include one or more of the following—

(a) a condition requiring the dominant provider not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with network access to the relevant network or with the availability of the relevant facilities;

(b) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, all such information

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as they may direct for the purpose of securing transparency in relation to such matters;

(c) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which he is willing to enter into an access contract;

(d) a condition requiring the terms and conditions on which the dominant provider is willing to enter into an access contract to include such terms and conditions as may be specified or described in the condition;

(e) a condition requiring the dominant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which he is willing to enter into an access contract.

(7) The SMP conditions authorised by this section also include conditions requiring the dominant provider to maintain a separation for accounting purposes between such different matters relating—

(a) to network access to the relevant network, or

(b) to the availability of the relevant facilities,

as OFCOM may from time to time direct.

(8) The SMP conditions authorised by subsection (7) include conditions imposing requirements about the accounting methods to be used in maintaining the separation.

(9) The SMP conditions authorised by this section also include (subject to section 88) conditions imposing on the dominant provider—

(a) such price controls as OFCOM may direct in relation to matters connected with the provision of network access to the relevant network, or with the availability of the relevant facilities;

(b) such rules as they may make in relation to those matters about the recovery of costs and cost orientation;

(d) obligations to adjust prices in accordance with such directions given by OFCOM as they may consider appropriate.

(10) The SMP conditions authorised by subsection (9) include conditions requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations imposed by virtue of that subsection.

(11) Where OFCOM set a condition authorised by this section which imposes rules on the dominant provider about the use of cost accounting systems, it shall be their duty also to set, and to apply to him, an SMP condition which imposes on him an obligation—

(a) to make arrangements for a description to be made available to the public of the cost accounting system used in pursuance of that condition; and

(b) to include in that description details of—

(i) the main categories under which costs are brought into account for the purposes of that system; and

(ii) the rules applied for the purposes of that system with respect to the allocation of costs.

(12) In this section—

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“access contract” means—

(a) a contract for the provision by a person to whom this section applies to another person of network access to the relevant network; or

(b) a contract under which the relevant facilities are made available by a person to whom this section applies to another person;

“the relevant facilities”, in relation to a person to whom this section applies, means the associated facilities made available by that person in relation to a public electronic communications network; and

“the relevant network”, in relation to such a person, means the public electronic communications network provided by him.

88 Conditions about network access pricing etc.

(1) OFCOM are not to set an SMP condition falling within section 87(9) except where—

(a) it appears to them from the market analysis carried out for the purpose of setting that condition that there is a relevant risk of adverse effects arising from price distortion; and

(b) it also appears to them that the setting of the condition is appropriate for the purposes of—

(i) promoting efficiency;

(ii) promoting sustainable competition; and

(iii) conferring the greatest possible benefits on the end-users of public electronic communications services.

(2) In setting an SMP condition falling within section 87(9) OFCOM must take account of the extent of the investment in the matters to which the condition relates of the person to whom it is to apply.

(3) For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—

(a) so fix and maintain some or all of his prices at an excessively high level, or

(b) so impose a price squeeze,

as to have adverse consequences for end-users of public electronic communications services.

(4) In considering the matters mentioned in subsection (1)(b) OFCOM may—

(a) have regard to the prices at which services are available in comparable competitive markets;

(b) determine what they consider to represent efficiency by using such cost accounting methods as they think fit.

(5) In this section “the dominant provider” has the same meaning as in section 87.

89 Conditions about network access in exceptional cases

(1) This section applies where—

(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

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(b) that person is the provider of an electronic communications network or a person who makes associated facilities available; and

(c) OFCOM consider that there are exceptional circumstances making it appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.

(2) OFCOM may set the additional SMP conditions and apply them to the dominant provider if—

(a) they have submitted the additional conditions to the European Commission for approval; and

(b) the Commission has approved the imposition on the dominant provider of the obligations contained in those conditions.

90 Conditions about carrier selection and pre-selection

(1) This section applies where—

(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market; and

(b) it appears to OFCOM that the market is a market relating to services for the provision of public electronic communications networks for use by means of connections at fixed locations.

(2) It shall be the duty of OFCOM to set, and to apply to the dominant provider, such SMP conditions authorised by this section as they think fit.

(3) The SMP conditions authorised by this section are conditions requiring the dominant provider to do one or both of the following—

(a) to make a relevant connection facility available to every person to whom he provides a public electronic communications service;

(b) for the purpose of making such a connection facility available to such persons, to make facilities for interconnection available to a person providing an electronic communications service.

(4) Where OFCOM set a condition requiring the dominant provider to make a relevant connection facility available, they shall also set such SMP conditions as they consider appropriate—

(a) with respect to the relationship to costs of any prices fixed for the use of the facility; and

(b) for the purpose of securing that prices and other charges imposed on the persons to whom public electronic communications services are provided by the dominant provider do not constitute a disincentive to the use of the facility.

(5) Where OFCOM set conditions authorised by this section, those conditions may include provision imposing obligations as to the manner in which one or both of the following are to be made available in accordance with the conditions—

(a) the relevant connection facility in question;

(b) the facilities for interconnection that are to be made available to a person providing an electronic communications service.

(6) In this section “relevant connection facility” is a facility which—

(a) allows a person to whom a public electronic communications service is provided by means of an electronic communications network to select

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which public electronic communications service provided wholly or partly by means of that network is the service that he wishes to use; and

(b) enables that selection to be made either—

(i) by the use of a telephone number on each separate occasion on which a selection is made; or

(ii) by designating in advance the selection that is to apply on every occasion when no such selection as is mentioned in sub- paragraph (i) is made.

91 Conditions about regulation of services etc. for end-users

(1) Where—

(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market (“the relevant market”),

(b) the relevant market is one for the end-users of public electronic communications services that are available in that market, and

they shall set, and apply to that provider, such SMP conditions authorised by this section as they consider appropriate.

(2) That test is that OFCOM are unable, by the setting of conditions of the sorts specified in subsection (3), to perform, or fully to perform, their duties under section 4 in relation to the market situation in the relevant market.

(3) The sorts of conditions referred to in subsection (2) are—

(a) access-related conditions; and

(b) SMP conditions authorised or required by sections 87 to 90.

(4) The reference in subsection (2) to the market situation in the relevant market is a reference to the situation revealed by such market analyses of that market as may have been carried out for the purposes of this Chapter.

(5) The SMP conditions authorised by this section are conditions imposing on the dominant provider such regulatory controls as OFCOM may from time to time direct in relation to the provision by that provider of any public electronic communications service to the end-users of that service.

(6) Where OFCOM set a condition which is authorised by this section and imposes regulatory control on tariffs or other matters to which costs are relevant, they shall also set, and apply to the dominant provider, an SMP condition which requires him, to the extent that they consider it appropriate—

(a) to use such cost accounting systems as may be determined by them;

(b) to have the use of those systems audited annually by a qualified auditor; and

(c) to publish an annual statement about compliance by the dominant provider with the obligations imposed by virtue of paragraph (a).

(7) It shall be the duty of OFCOM to provide the European Commission with all such information as the Commission requires them to provide about—

(a) conditions authorised by this section that are set by OFCOM; and

(b) the cost accounting systems used, by the persons to whom those conditions apply, in relation to the services regulated in accordance with the conditions.

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(8) In this section “qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor.

92 Conditions about leased lines

(1) This section applies where—

(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market; and

(b) it appears to OFCOM that the market in relation to which that market power determination has been made is a market relating to the provision of any such leased lines as are for the time being identified by the European Commission in the List of Standards published in the Official Journal of the European Communities.

(2) It shall be the duty of OFCOM to set, and to apply to the dominant provider, such SMP conditions authorised by this section as they consider appropriate.

(3) The SMP conditions authorised by this section are conditions for applying, so far as required by the provisions for the time being contained in Annex VII to the Universal Service Directive, the principles of non-discrimination, cost orientation and transparency in relation to the leased lines identified as mentioned in subsection (1).

(4) In this section “leased line” means an electronic communications service the provision of which consists in the reservation of a fixed amount of transmission capacity between fixed points on the same or different electronic communications networks.

SMP apparatus conditions: subject-matter

93 Conditions about apparatus supply

(1) Where OFCOM have made a determination that a person (“the dominant supplier”) has significant market power in an identified apparatus market, they may—

(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the supply of electronic communications apparatus; and

(b) apply those conditions to that person.

(2) This section authorises the setting of SMP conditions of each of the following descriptions—

(a) conditions requiring the dominant supplier to maintain such a separation for accounting purposes between matters relating to the supply of electronic communications apparatus and other matters as may be described in the conditions;

(b) conditions imposing requirements about the accounting methods to be used in maintaining the separation; and

(c) conditions imposing such rules as OFCOM may make, for the purpose of securing the maintenance of the separation, about the use of cost accounting systems.

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(3) This section also authorises the setting of SMP conditions imposing price controls in relation to the hiring of telephones which are hardwired to an electronic communications network.

(4) Conditions set under this section must not make provision in relation to the supply of electronic communications apparatus unless the apparatus is of a description of apparatus as respects the supply of which the dominant supplier has been found to have significant market power.

(5) For the purposes of this section a telephone is hardwired to an electronic communications network where, in order for it to be used with that network—

(a) it has to be physically attached to apparatus comprised in the network; and

(b) the attachment has to be effected by a process that requires the use of a tool.

Enforcement of conditions

94 Notification of contravention of conditions

(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a condition set under section 45, 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 condition 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;

(b) complying with notified conditions of which he remains in contravention; and

(4) Subject to subsections (5) to (7) and section 98(3), 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

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(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 condition, OFCOM may give a further notification in respect of the same contravention of that condition 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) OFCOM must not give a notification under this section in a case in which—

(a) they decide that a more appropriate way of proceeding in relation to the contravention in question would be under the Competition Act 1998 (c. 41); and

(b) they publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of the persons who, in their opinion, are likely to be affected by it.

(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 the same condition; 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 95(2) or 96(2) that the contravention to which the previous notification related did occur.

95 Enforcement notification for contravention of conditions

(1) This section applies where—

(a) a person (“the notified provider”) has been given a notification under section 94;

(b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

(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 a condition specified in the notification under section 94; and

(b) that he has not, during the period allowed under that section, taken all such steps as they consider appropriate—

(i) for complying with that condition; and

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(ii) for remedying the consequences of the notified contravention of that condition.

(3) An enforcement notification is a notification which imposes one or both of the following requirements on the notified provider—

(a) a requirement to take such steps for complying with the notified condition as may be specified in the notification;

(b) a requirement to take such steps for remedying the consequences of the notified contravention as may be so specified.

(4) A decision of OFCOM to give an enforcement notification to a person—

(a) must be notified by them to that person, together with the reasons for the decision, no later than one 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

96 Penalties for contravention of conditions

(1) This section applies (in addition to section 95) where—

(a) a person (“the notified provider”) has been given a notification under section 94;

(b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

(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 a condition specified in the notification under section 94; and

(b) has not, during the period allowed under that section, taken the steps OFCOM consider appropriate—

(i) for complying with the notified condition; and

(ii) for remedying the consequences of the notified contravention of that condition.

(3) Where a notification under section 94 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 95 in respect of the notified contravention.

(6) Where OFCOM impose a penalty on a person under this section, they shall—

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(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.

(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.

97 Amount of penalty under s. 96

(1) The amount of a penalty imposed under section 96 is to be such amount not exceeding ten per cent. of the turnover of the notified provider’s relevant business for the relevant period as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the contravention in respect of which it is imposed.

(2) In making that determination OFCOM must have regard to—

(a) any representations made to them by the notified provider;

(b) any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94; and

(3) For the purposes of this section—

(a) the turnover of a person’s relevant business for a period shall be calculated in accordance with such rules as may be set out by order made by the Secretary of State; and

(b) provision may also be made by such an order for determining what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made.

(4) No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5) In this section—

“relevant business” means (subject to the provisions of an order under subsection (3) and to subsections (6) and (7)) so much of any business carried on by the notified provider as consists in any one or more of the following—

(a) the provision of an electronic communications network;

(b) the provision of an electronic communications service;

(d) the supply of directories for use in connection with the use of such a network or service;

(e) the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service;

(f) any business not falling within any of the preceding paragraphs which is carried on in association with any business in respect of which any access-related condition is applied to the person carrying it on;

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“relevant period”, in relation to a contravention by a person of a condition set under section 45, means—

(a) except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 94;

(b) in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; and

(c) in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.

(6) In the case of a contravention of an SMP apparatus condition the relevant business is so much of any business carried on by the person in respect of whose contravention the penalty is imposed as consists in the supply of electronic communications apparatus.

(7) So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—

(a) a contravention of an access-related condition imposed in respect of that business; or

(b) a contravention of an enforcement notification given under section 95 relating to such a condition.

(8) In this section “the notified provider” has the same meaning as in section 96.

98 Power to deal with urgent cases

(1) This section applies where OFCOM determine—

(a) that they are entitled to give a notification under section 94 with respect to a contravention by a person (“the contravening provider”) of a condition set under section 45, other than an SMP apparatus condition;

(b) that there are reasonable grounds for suspecting that the case is an urgent case; and

(2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates 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 (other than the contravening provider) 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.

(3) OFCOM may, in a notification under section 94 with respect to the contravention, specify a period of less than one month for doing the things mentioned in subsection (3) of that section.

(4) OFCOM shall also have power to give to the contravening provider—

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(a) a direction that his entitlement 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.

(5) A direction under subsection (4)—

(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.

(6) A direction under subsection (4)—

(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

(7) 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.

(8) OFCOM have power to revoke a direction given under subsection (4)—

(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.

99 Confirmation of directions under s. 98

(1) As soon as reasonably practicable after giving a direction under section 98(4), OFCOM must give the person to whom it is given—

(a) an opportunity of making representations to them about the grounds on which it was given and its effect; and

(b) an opportunity of proposing steps to remedy the situation.

(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended, 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.

(3) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(4) If not, they must exercise their power to revoke it.

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(5) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.

(6) Conditions included in a direction by virtue of section 98(7) have effect only if the direction is confirmed.

100 Suspending service provision for contraventions of conditions

(1) OFCOM may give a direction under this section to a person who is a communications provider or makes associated facilities available (“the contravening provider”) if they are satisfied—

(a) that he is or has been in serious and repeated contravention of conditions set under section 45, other than an SMP apparatus condition;

(b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 or both, to secure compliance with the contravened conditions 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—

(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

(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 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

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(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 conditions set under section 45 to the extent that—

(a) in the case of a previous notification given to that person under section section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

(c) the previous notification and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

101 Suspending apparatus supply for contraventions of conditions

(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 any SMP apparatus conditions;

(b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 or both, to secure compliance with the contravened conditions 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.

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(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may at any time 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

(7) For the purposes of this section there are repeated contraventions by a person of SMP apparatus conditions to the extent that—

(a) in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

(c) the previous notification and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

102 Procedure for directions under ss. 100 and 101

(1) Except in an urgent case, OFCOM are not to give a direction under section 100 or 101 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 100 or 101 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 100 or 101, 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—

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(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 100; and

“contravening supplier” has the same meaning as in section 101.

103 Enforcement of directions under ss. 98, 100 and 101

(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 98(4) or 100; 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 101; 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 98, 100 or 101 as they apply in relation to a contravention of conditions set under section 45.

104 Civil liability for breach of conditions or enforcement notification

(1) The obligation of a person to comply with—

(a) the conditions set under section 45 which apply to him,

(b) requirements imposed on him by an enforcement notification under section 95, and

shall be a duty owed to every person who may be affected by a contravention of the condition or requirement.

(2) Where a duty is owed by virtue of this section 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

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(ii) is done wholly or partly for achieving that result,

shall be actionable at the suit or instance of that person.

(3) In proceedings brought against a person by virtue of subsection (2)(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 or requirement in question.

(4) The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a).

(5) Where OFCOM give a consent for the purposes of subsection (4) subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on by that person except in compliance with those conditions.

OFCOM’s duty to intervene on network access issues

105 Consideration and determination of network access questions

(1) This section applies where—

(a) it appears to OFCOM that a network access question has arisen and needs to be determined; and

(b) they consider that, for the purpose of determining that question, it would be appropriate for them to exercise their powers under this Chapter to set, modify or revoke conditions falling within subsection (2).

(2) Conditions falling within this subsection are—

(a) access-related conditions authorised by section 73(2) or (4); and

(b) SMP services conditions authorised by section 87.

(3) Before considering whether, for the purpose of determining the question that has arisen, to set, modify or revoke conditions falling within subsection (2), OFCOM must publish a notification of their proposal to consider that matter.

(4) If, after considering that matter, OFCOM decide not to exercise their powers to set, modify or revoke conditions falling within subsection (2), they must publish a notification of their decision.

(5) A notification under this section must be published in the manner that OFCOM consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, would be likely to be affected by action taken for determining the network access question that appears to them to have arisen.

(6) In this section “network access question” means a question relating to network access or the terms or conditions on which it is or may be provided in a particular case.

Electronic communications code

106 Application of the electronic communications code

(1) In this Chapter “the electronic communications code” means the code set out in Schedule 2 to the Telecommunications Act 1984 (c. 12).

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(2) Schedule 3 (which amends Schedule 2 to the Telecommunications Act 1984 (c. 12) for the purpose of translating the telecommunications code into a code applicable in the context of the new regulatory regime established by this Act) shall have effect.

(3) The electronic communications code shall have effect—

(a) in the case of a person to whom it is applied by a direction given by OFCOM; and

(b) in the case of the Secretary of State or any Northern Ireland department where the Secretary of State or that department is providing or proposing to provide an electronic communications network.

(4) The only purposes for which the electronic communications code may be applied in a person’s case by a direction under this section are—

(a) the purposes of the provision by him of an electronic communications network; or

(b) the purposes of the provision by him of a system of conduits which he is making available, or proposing to make available, for use by providers of electronic communications networks for the purposes of the provision by them of their networks.

(5) A direction applying the electronic communications code in any person’s case may provide for that code to have effect in his case—

(a) in relation only to such places or localities as may be specified or described in the direction;

(b) for the purposes only of the provision of such electronic communications network, or part of an electronic communications network, as may be so specified or described; or

(c) for the purposes only of the provision of such conduit system, or part of a conduit system, as may be so specified or described.

(6) The Secretary of State may by order provide for the electronic communications code to have effect for all purposes with a different amount substituted for the amount for the time being specified in paragraph 16(3) of the code (minimum compensation).

(7) In this section “conduit” includes a tunnel, subway, tube or pipe.

107 Procedure for directions applying code

(1) OFCOM are not to give a direction applying the electronic communications code in any person’s case except on an application made for the purpose by that person.

(2) If OFCOM publish a notification setting out their requirements with respect to—

(a) the content of an application for a direction applying the electronic communications code, and

(b) the manner in which such an application is to be made,

such an application must be made in accordance with the requirements for the time being in force.

(3) OFCOM may—

(a) from time to time review the requirements for the time being in force for the purposes of subsection (2); and

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(b) on any such review, modify them in such manner as they think fit by giving a notification of the revised requirements.

(4) In considering whether to apply the electronic communications code in any person’s case, OFCOM must have regard, in particular, to each of the following matters—

(a) the benefit to the public of the electronic communications network or conduit system by reference to which the code is to be applied to that person;

(b) the practicability of the provision of that network or system without the application of the code;

(d) whether the person in whose case it is proposed to apply the code will be able to meet liabilities arising as a consequence of—

(i) the application of the code in his case; and

(ii) any conduct of his in relation to the matters with which the code deals.

(5) For the purposes of subsections (6) and (7) of section 3 OFCOM’s duty under subsection (4) ranks equally with their duties under that section.

(6) Before giving a direction under section 106, OFCOM must—

(a) publish a notification of their proposal to give the direction; and

(b) consider any representations about that proposal that are made to them within the period specified in the notification.

(7) A notification for the purposes of subsection (6)(a) must contain the following—

(a) a statement of OFCOM’s proposal;

(b) a statement of their reasons for that proposal;

(8) The statement of OFCOM’s proposal must—

(a) contain a statement that they propose to apply the code in the case of the person in question;

(b) set out any proposals of theirs to impose terms under section 106(5);

but this subsection is subject to sections 113(7) and 115(5).

(9) The period specified as the period within which representations may be made must end no less than one month after the day of the publication of the notification.

(10) The publication by OFCOM of a notification for any of the purposes of this section must be a publication in such manner as OFCOM consider appropriate for bringing the notification to the attention of the persons who, in their opinion, are likely to be affected by it.

108 Register of persons in whose case code applies

(1) It shall be the duty of OFCOM to establish and maintain a register of persons in whose case the electronic communications code applies by virtue of a direction under section 106.

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(2) OFCOM must record in the register every direction given under that section.

(3) Information recorded in the register must be 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 a publication 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).

109 Restrictions and conditions subject to which code applies

(1) Where the electronic communications code is applied in any person’s case by a direction given by OFCOM, that code is to have effect in that person’s case subject to such restrictions and conditions as may be contained in regulations made by the Secretary of State.

(2) In exercising his power to make regulations under this section it shall be the duty of the Secretary of State to have regard to each of the following—

(a) the duties imposed on OFCOM by sections 3 and 4;

(b) the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside;

(c) the need to ensure that highways are not damaged or obstructed, and traffic not interfered with, to any greater extent than is reasonably necessary;

(d) the need to encourage the sharing of the use of electronic communications apparatus;

(e) the need to secure that a person in whose case the code is applied will be able to meet liabilities arising as a consequence of—

(i) the application of the code in his case; and

(ii) any conduct of his in relation to the matters with which the code deals.

(3) The power of the Secretary of State to provide by regulations for the restrictions and conditions subject to which the electronic communications code has effect includes power to provide for restrictions and conditions which are framed by reference to any one or more of the following—

(a) the making of a determination in accordance with the regulations by a person specified in the regulations;

(b) the giving of an approval or consent by a person so specified; or

(4) Before making any regulations under this section, the Secretary of State must consult—

(a) OFCOM; and

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(b) such other persons as he considers appropriate.

110 Enforcement of restrictions and conditions

(1) Where OFCOM determine that there are reasonable grounds for believing that a person in whose case the electronic communications code applies is contravening, or has contravened, a requirement imposed by virtue of any restrictions or conditions under section 109, 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;

(b) specifies the requirement and the 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;

(b) complying with any notified requirement of which he remains in contravention; and

(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

(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;

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(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 111(2) or 112(2) that the contravention to which the previous notification related did occur.

111 Enforcement notification for contravention of code restrictions

(1) This section applies where—

(a) a person (“the notified provider”) has been given a notification under section 110;

(b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

(2) OFCOM may give the notified provider an enforcement notification if they are satisfied—

(a) that he has been in contravention, in one or more of the respects notified, of a requirement specified in the notification under section 110; and

(b) that he has not, during the period allowed under section 110, taken all such steps as they consider appropriate—

(i) for complying with that requirement; and

(ii) for remedying the consequences of the notified contravention of that requirement.

(3) An enforcement notification is a notification which imposes one or both of the following requirements on the notified provider—

(a) a requirement to take such steps for complying with the notified requirement as may be specified in the notification;