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(c) require the removal of, or prohibit the use of, any apparatus lawfully | |
installed on, in or over any premises before that suspension. | |
(12) Subsection (9) of section 39 applies for the purposes of subsection (1) as it | |
applies for the purposes of that section. | |
111 Procedure for directions under s. 110 | 5 |
(1) Except in an urgent case, OFCOM are not to give a direction under section | |
110(4) suspending the application of the electronic communications code in the | |
case of any person (“the operator”) unless they have— | |
(a) notified the operator of the proposed suspension and of the steps (if | |
any) that they are proposing to take under section 114; | 10 |
(b) provided him with an opportunity of making representations about the | |
proposals and of proposing steps for remedying the situation that has | |
given rise to the proposed suspension; and | |
(c) considered every representation and proposal made to them during the | |
period allowed by them for the operator to take advantage of that | 15 |
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 110 in an urgent | |
case, OFCOM must, provide the operator with an opportunity of— | 20 |
(a) making representations about the effect of the direction and of any | |
steps taken under section 114 in connection with the suspension; and | |
(b) proposing steps for remedying the situation that has given rise to the | |
situation. | |
(4) A case is an urgent case for the purposes of this section if OFCOM— | 25 |
(a) consider that it would be inappropriate, because the circumstances | |
appearing to OFCOM to require the suspension fall within subsection | |
(5), to allow time, before giving a direction under section 110, for the | |
making and consideration of representations; and | |
(b) decide for that reason to act in accordance with subsection (3), instead | 30 |
of subsection (1). | |
(5) Circumstances fall within this subsection if they have resulted in, or create an | |
immediate risk of— | |
(a) a serious threat to the safety of the public, to public health or to national | |
security; | 35 |
(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 | 40 |
electronic communications networks, electronic communications | |
services or associated facilities. | |
112 Modification and revocation of application of code | |
(1) OFCOM may at any time modify the terms on which, by virtue of section | |
103(5), the code is applied in a person’s case. | 45 |
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(2) OFCOM may revoke a direction applying the electronic communications code | |
in a person’s case if an application for the revocation has been made by that | |
person. | |
(3) If at any time it appears to OFCOM that a person in whose case the electronic | |
communications code has been applied is not the provider of an electronic | 5 |
communications network or conduit system for the purposes of which the code | |
applies, OFCOM may revoke the direction applying the code in his case. | |
(4) A modification or revocation under this section shall be by a further direction | |
under section 103 to the person in whose case the electronic communications | |
code has been applied by the direction being modified or revoked. | 10 |
(5) The matters required by section 104(8) to be included, in the case of a direction | |
for the purposes of this section, in the statement of OFCOM’s proposal are | |
whichever of the following is applicable— | |
(a) a statement of their proposal to modify terms imposed under section | |
103(5); | 15 |
(b) a statement of their proposal to revoke the direction applying the code. | |
113 Notification of cessation by person to whom code applies | |
(1) This section applies where, by virtue of a direction under section 103, the | |
electronic communications code applies in any person’s case for the purposes | |
of the provision by him of— | 20 |
(a) an electronic communications network which is not of a description | |
designated for the purposes of section 30; or | |
(b) such a system of conduits as is mentioned in section 103(4)(b). | |
(2) If that person ceases to provide that network or conduit system, he must notify | |
OFCOM of that fact. | 25 |
(3) A notification under this section must be given within such period and in such | |
manner as may be required by OFCOM. | |
(4) OFCOM may impose a penalty on a person who fails to comply with a | |
requirement imposed by or under this section. | |
(5) The amount of a penalty imposed on a person under this section is to be such | 30 |
amount not exceeding £1,000 as OFCOM may determine to be both— | |
(a) appropriate; and | |
(b) proportionate to the matter in respect of which it is imposed. | |
(6) 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 | 35 |
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 | 40 |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | |
(8) The Secretary of State may by order amend this section so as to substitute a | |
different maximum penalty for the maximum penalty for the time being | |
specified in subsection (5). | 45 |
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(9) No order is to be made containing provision authorised by subsection (8) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
114 Transitional schemes on cessation of application of code | |
(1) Where it appears to OFCOM— | 5 |
(a) that the electronic communications code has ceased or is to cease to | |
apply, to any extent, in the case of any person (“the former operator”), | |
(b) that it has ceased or will cease so to apply for either of the reasons | |
specified in subsection (2), and | |
(c) that it is appropriate for transitional provision to be made in connection | 10 |
with it ceasing to apply in the case of the former operator, | |
they may by order make a scheme containing any such transitional provision | |
as they think fit in that case. | |
(2) Those reasons are— | |
(a) the suspension under section 110 of the application of the code in the | 15 |
former operator’s case; | |
(b) the revocation or modification under section 112 of the direction | |
applying the code in his case. | |
(3) A scheme contained in an order under this section may, in particular— | |
(a) impose any one or more obligations falling within subsection (4) on the | 20 |
former operator; | |
(b) provide for those obligations to be enforceable in such manner | |
(otherwise than by criminal penalties) and by such persons as may be | |
specified in the scheme; | |
(c) authorise the retention of apparatus on any land pending its | 25 |
subsequent use for the purposes of an electronic communications | |
network, electronic communications service or conduit system to be | |
provided by any person; | |
(d) provide for the transfer to such persons as may be specified in, or | |
determined in accordance with, the scheme of any rights or liabilities | 30 |
arising out of any agreement or other obligation entered into or | |
incurred in pursuance of the code by the former operator; | |
(e) provide, for the purposes of any provision contained in the scheme by | |
virtue of any of the preceding paragraphs, for such questions arising | |
under the scheme as are specified in the scheme, or are of a description | 35 |
so specified, to be referred to, and determined by, OFCOM. | |
(4) The obligations referred to in subsection (3)(a) are— | |
(a) an obligation to remove anything installed in pursuance of any right | |
conferred by or in accordance with the code; | |
(b) an obligation to restore land to its condition before anything was done | 40 |
in pursuance of any such right; or | |
(c) an obligation to pay the expenses of any such removal or restoration. | |
(5) Sections 107 to 109 apply in relation to the requirements imposed by virtue of | |
a scheme contained in an order under this section as they apply in relation to a | |
requirement imposed by virtue of restrictions or conditions under section 106. | 45 |
(6) Section 396 applies to the power of OFCOM to make an order under this | |
section. | |
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115 Compulsory acquisition of land etc. | |
Schedule 4 (which provides for compulsory acquisition of land by the provider | |
of an electronic communications network in whose case the electronic | |
communications code applies and for entry on land by persons nominated by | |
such a provider) shall have effect. | 5 |
116 Power to give assistance in relation to certain proceedings | |
(1) This section applies where any actual or prospective party to any proceedings | |
falling within subsection (2) (other than the operator, within the meaning of the | |
electronic communications code) applies to OFCOM for assistance under this | |
section in relation to those proceedings. | 10 |
(2) The proceedings falling within this subsection are any actual or prospective | |
proceedings in which there falls to be determined any question arising under, | |
or in connection with— | |
(a) the electronic communications code as applied in any person’s case by | |
a direction under section 103; or | 15 |
(b) any restriction or condition subject to which that code applies. | |
(3) OFCOM may grant the application if, on any one or more of the following | |
grounds, they think fit to do so— | |
(a) on the ground that the case raises a question of principle; | |
(b) on the ground that it is unreasonable, having regard to the complexity | 20 |
of the case or to any other matter, to expect the applicant to deal with | |
the case without assistance under this section; | |
(c) by reason of any other special consideration. | |
(4) Assistance by OFCOM under this section may include— | |
(a) giving advice or arranging for the giving of advice by a solicitor or | 25 |
counsel; | |
(b) procuring or attempting to procure the settlement of the matter in | |
dispute; | |
(c) arranging for the giving of any assistance usually given by a solicitor or | |
counsel— | 30 |
(i) in the steps preliminary or incidental to proceedings; or | |
(ii) in arriving at, or giving effect to, a compromise to avoid | |
proceedings or to bring them to an end; | |
(d) arranging for representation by a solicitor or counsel; | |
(e) arranging for the giving of any other assistance by a solicitor or counsel; | 35 |
(f) any other form of assistance which OFCOM consider appropriate. | |
(5) Nothing in subsection (4)(d) shall be taken to affect the law and practice | |
regulating the descriptions of persons who may appear in, conduct or defend | |
any proceedings, or who may address the court in any proceedings. | |
(6) In so far as expenses are incurred by OFCOM in providing the applicant with | 40 |
assistance under this section, the recovery of those expenses (as taxed or | |
assessed in such manner as may be prescribed by rules of court) shall constitute | |
a first charge for the benefit of OFCOM— | |
(a) on any costs or expenses which (whether by virtue of a judgment or | |
order of a court, or an agreement or otherwise) are payable to the | 45 |
applicant by any other person in respect of the matter in connection | |
with which the assistance is given; and | |
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(b) so far as relates to costs or expenses, on the applicant’s rights under a | |
compromise or settlement arrived at in connection with that matter to | |
avoid proceedings, or to bring them to an end. | |
(7) A charge conferred by subsection (6) is subject to— | |
(a) any charge imposed by section 10(7) of the Access to Justice Act 1999 | 5 |
(c. 22) and any provision made by or under Part 1 of that Act for the | |
payment of any sum to the Legal Services Commission; | |
(b) any charge or obligation for payment in priority to other debts under | |
the Legal Aid (Scotland) Act 1986 (c. 47); or | |
(c) any charge under the Legal Aid, Advice and Assistance (Northern | 10 |
Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)). | |
Regulation of premium rate services | |
117 Conditions regulating premium rate services | |
(1) OFCOM shall have the power, for the purpose of regulating the provision, | |
content, promotion and marketing of premium rate services, to set conditions | 15 |
under this section that bind the persons to whom they are applied. | |
(2) Conditions under this section may be applied either— | |
(a) generally to every person who provides a premium rate service; or | |
(b) to every person who is of a specified description of such persons, or | |
who provides a specified description of such services. | 20 |
(3) The only provision that may be made by conditions under this section is | |
provision requiring the person to whom the condition applies to comply, to the | |
extent required by the condition, with— | |
(a) directions given in accordance with an approved code by the | |
enforcement authority and for the purpose of enforcing its provisions; | 25 |
and | |
(b) if there is no such code, the provisions of the order for the time being in | |
force under section 119. | |
(4) The power to set a condition under this section includes power to modify or | |
revoke the conditions for the time being in force under this section. | 30 |
(5) Sections 44 and 45 apply to the setting, modification and revocation of a | |
condition under this section as they apply to the setting, modification and | |
revocation of a condition under section 42. | |
(6) OFCOM must send a copy of every notification published under section 45(1) | |
with respect to a condition under this section to the Secretary of State. | 35 |
(7) A service is a premium rate service for the purposes of this Chapter if— | |
(a) it is a service falling within subsection (8); | |
(b) there is a charge for the provision of the service; | |
(c) the charge is required to be paid to a person providing an electronic | |
communications service by means of which the service in question is | 40 |
provided; and | |
(d) that charge is imposed in the form of a charge made by that person for | |
the use of the electronic communications service. | |
(8) A service falls within this subsection if its provision consists in— | |
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(a) the provision of the contents of communications transmitted by means | |
of an electronic communications network; or | |
(b) allowing the user of an electronic communications service to make use, | |
by the making of a transmission by means of that service, of a facility | |
made available to the users of the electronic communications service. | 5 |
(9) For the purposes of this Chapter a person provides a premium rate service | |
(“the relevant service”) if— | |
(a) he provides the contents of the relevant service; | |
(b) he exercises editorial control over the contents of the relevant service; | |
(c) he is a person who packages together the contents of the relevant | 10 |
service for the purpose of facilitating its provision; | |
(d) he makes available a facility comprised in the relevant service; or | |
(e) he falls within subsection (10) or (11). | |
(10) A person falls within this subsection if— | |
(a) he is the provider of an electronic communications service used for the | 15 |
provision of the relevant service; and | |
(b) under arrangements made with a person who is a provider of the | |
relevant service falling within subsection (9)(a) to (d), he is entitled to | |
retain some or all of the charges received by him in respect of the | |
provision of the relevant service or of the use of his electronic | 20 |
communications service for the purposes of the relevant service. | |
(11) A person falls within this subsection if— | |
(a) he is the provider of an electronic communications network used for | |
the provision of the relevant service; and | |
(b) an agreement relating to the use of the network for the provision of that | 25 |
service subsists between the provider of the network and a person who | |
is a provider of the relevant service falling within subsection (9)(a) to | |
(d). | |
(12) Where one or more persons are employed or engaged under the direction of | |
another to do any of the things mentioned in subsection (9)(a) to (d), only that | 30 |
other person shall be a provider of the relevant service for the purposes of this | |
Chapter. | |
(13) References in this section to a facility include, in particular, references to— | |
(a) a facility for making a payment for goods or services; | |
(b) a facility for entering a competition or claiming a prize; and | 35 |
(c) a facility for registering a vote or recording a preference. | |
(14) In this section— | |
“approved code” means a code for the time being approved under section | |
118; and | |
“enforcement authority”, in relation to such a code, means the person who | 40 |
under the code has the function of enforcing it. | |
118 Approval of code for premium rate services | |
(1) If it appears to OFCOM— | |
(a) that a code has been made by any person for regulating the provision | |
and contents of premium rate services, and the facilities made available | 45 |
in the provision of such services; | |
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(b) that the code contains provision for regulating, to such extent (if any) | |
as they think fit, the arrangements made by the providers of premium | |
rate services for promoting and marketing those services; and | |
(c) that it would be appropriate for them to approve that code for the | |
purposes of section 117, | 5 |
they may approve that code for those purposes. | |
(2) OFCOM are not to approve a code for those purposes unless they are | |
satisfied— | |
(a) that there is a person who, under the code, has the function of | |
administering and enforcing it; and | 10 |
(b) that that person is sufficiently independent of the providers of | |
premium rate services; | |
(c) that adequate arrangements are in force for funding the activities of | |
that person in relation to the code; | |
(d) that the provisions of the code are objectively justifiable in relation to | 15 |
the services to which it relates; | |
(e) that those provisions are not such as to discriminate unduly against | |
particular persons or against a particular description of persons; | |
(f) that those provisions are proportionate to what they are intended to | |
achieve; and | 20 |
(g) that, in relation to what those provisions are intended to achieve, they | |
are transparent. | |
(3) The provision that may be contained in a code and approved under this section | |
includes, in particular, provision about the pricing of premium rate services | |
and provision for the enforcement of the code. | 25 |
(4) The provision for the enforcement of a code that may be approved under this | |
section includes— | |
(a) provision for the payment, to a person specified in the code, of a | |
penalty not exceeding the maximum penalty for the time being | |
specified in section 120(2); | 30 |
(b) provision requiring a provider of a premium rate service to secure that | |
the provision of the service is suspended or otherwise ceases or is | |
restricted in any respect; | |
(c) provision for the imposition on a person, in respect of a contravention | |
of the code, of a temporary or permanent prohibition or restriction on | 35 |
his working in connection with the provision of premium rate services | |
or, in the case of a body corporate, on its providing such services or on | |
its carrying on other activities in connection with their provision. | |
(5) OFCOM may, at any time, for the purposes of section 117— | |
(a) approve modifications that have been made to an approved code; or | 40 |
(b) withdraw their approval from an approved code. | |
(6) Where OFCOM give or withdraw an approval for the purposes of section 117, | |
they must give notification of their approval or of its withdrawal. | |
(7) The notification must be published in such manner as OFCOM consider | |
appropriate for bringing it to the attention of the persons who, in OFCOM’s | 45 |
opinion, are likely to be affected by the approval or withdrawal. | |
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