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(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | |
(8) It is to be possible for a person to be both liable for an offence under sections | |
122 to 124 and to have a penalty imposed on him under this section in respect | |
of the same conduct. | 5 |
(9) The Secretary of State may by order amend this section so as to substitute a | |
different maximum penalty for the maximum penalty for the time being | |
specified in subsection (4). | |
(10) No order is to be made containing provision authorised by subsection (9) | |
unless a draft of the order has been laid before Parliament and approved by a | 10 |
resolution of each House. | |
128 Statement of policy on persistent misuse | |
(1) It shall be the duty of OFCOM to prepare and publish a statement of their | |
general policy with respect to the exercise of their powers under sections 125 | |
to 127. | 15 |
(2) OFCOM may from time to time revise that statement as they think fit. | |
(3) Where OFCOM make or revise their statement of policy under this section, | |
they must publish that statement or (as the case may be) the revised statement | |
in such manner as they consider appropriate for bringing it to the attention of | |
the persons who, in their opinion, are likely to be affected by it. | 20 |
(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by | |
sections 125 to 127, to have regard to the statement for the time being in force | |
under this section. | |
Powers to deal with emergencies | |
129 Powers to require suspension or restriction of a provider’s entitlement | 25 |
(1) If the Secretary of State has reasonable grounds for believing that it is necessary | |
to do so— | |
(a) to protect the public from any threat to public safety or public health, or | |
(b) in the interests of national security, | |
he may, by a direction to OFCOM, require them to give a direction under | 30 |
subsection (3) to a person (“the relevant provider”) who provides an electronic | |
communications network or electronic communications service or who makes | |
associated facilities available. | |
(2) OFCOM must comply with a requirement of the Secretary of State under | |
subsection (1) by giving to the relevant provider such direction under | 35 |
subsection (3) as they consider necessary for the purpose of complying with the | |
Secretary of State’s direction. | |
(3) A direction under this section is— | |
(a) a direction that the entitlement of the relevant provider to provide | |
electronic communications networks or electronic communications | 40 |
services, or to make associated facilities available, is suspended (either | |
generally or in relation to particular networks, services or facilities); or | |
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(b) a direction that that entitlement is restricted in the respects set out in the | |
direction. | |
(4) A direction under subsection (3)— | |
(a) must specify the networks, services and facilities to which it relates; and | |
(b) except so far as it otherwise provides, takes effect for an indefinite | 5 |
period beginning with the time at which it is notified to the person to | |
whom it is given. | |
(5) A direction under subsection (3)— | |
(a) in providing for the effect of a suspension or restriction to be | |
postponed, may provide for it to take effect only at a time determined | 10 |
by or in accordance with the terms of the direction; and | |
(b) in connection with the suspension or restriction contained in the | |
direction or with the postponement of its effect, may impose such | |
conditions on the relevant provider as appear to OFCOM to be | |
appropriate for the purpose of protecting that provider’s customers. | 15 |
(6) Those conditions may include a condition requiring the making of payments— | |
(a) by way of compensation for loss or damage suffered by the relevant | |
provider’s customers as a result of the direction; or | |
(b) in respect of annoyance, inconvenience or anxiety to which they have | |
been put in consequence of the direction. | 20 |
(7) Where OFCOM give a direction under subsection (3), they shall, as soon as | |
practicable after doing so, provide that person with an opportunity of— | |
(a) making representations about the effect of the direction; and | |
(b) proposing steps for remedying the situation. | |
(8) If OFCOM consider it appropriate to do so (whether in consequence of any | 25 |
representations or proposals made to them under subsection (3) or otherwise), | |
they may, without revoking it, at any time modify the terms of a direction | |
under subsection (3) in such manner as they consider appropriate. | |
(9) If the Secretary of State considers it appropriate to do so, he may, by a direction | |
to OFCOM, require them to revoke a direction under subsection (3). | 30 |
(10) Where OFCOM modify or revoke a direction they have given under subsection | |
(3), they may do so— | |
(a) with effect from such time as they may direct; | |
(b) subject to compliance with such requirements as they may specify; and | |
(c) to such extent and in relation to such networks, services or facilities, or | 35 |
parts of a network, service or facility, as they may determine. | |
(11) It shall be the duty of OFCOM to comply with— | |
(a) a requirement under subsection (9) to revoke a direction; and | |
(b) a requirement contained in that direction as to how they should | |
exercise their powers under subsection (10) in the case of the required | 40 |
revocation. | |
130 Enforcement of directions under s. 129 | |
(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— | 45 |
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(a) while his entitlement to do so is suspended by a direction under section | |
129; 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 | 5 |
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 | |
129 shall be a duty owed to every person who may be affected by a | |
contravention of the condition. | 10 |
(4) Where a duty is owed by virtue of subsection (3) to a person— | |
(a) a breach of the duty that causes that person to sustain loss or damage, | |
and | |
(b) an act which— | |
(i) by inducing a breach of the duty or interfering with its | 15 |
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 | 20 |
exercised all due diligence to avoid contravening the condition in question. | |
(6) Sections 91 to 96 apply in relation to a contravention of conditions imposed by | |
a direction under section 129 as they apply in relation to a contravention of | |
conditions set under section 42. | |
Restrictions in leases and licences | 25 |
131 Restrictions in leases and licences | |
(1) This section applies where provision contained in a lease, licence or other | |
agreement relating to premises has the effect of imposing on the occupier a | |
prohibition or restriction under which his choice of— | |
(a) the person from whom he obtains electronic communications services, | 30 |
or particular electronic communications services, or | |
(b) the person through whom he arranges to be provided with electronic | |
communications services, or particular electronic communications | |
services, | |
is confined to a person with an interest in the premises, to a person selected by | 35 |
a person with such an interest or to persons who are one or the other. | |
(2) This section also applies where— | |
(a) provision contained in a lease for a year or more has the effect of | |
imposing any other prohibition or restriction on the lessee with respect | |
to an electronic communications matter; or | 40 |
(b) provision contained in an agreement relating to premises to which a | |
lease for a year or more applies has the effect of imposing a prohibition | |
or restriction on the lessee with respect to such a matter. | |
(3) A provision falling within subsection (1) shall have effect— | |
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(a) as if the prohibition or restriction applied only where the lessor, | |
licensor or other party to the agreement has not given his consent to a | |
departure from the requirements imposed by the prohibition or | |
restriction; and | |
(b) as if the lessor, licensor or other party were required not to withhold | 5 |
that consent unreasonably. | |
(4) A provision falling within subsection (2)(a) or (b) shall have effect— | |
(a) in relation to things done inside a building occupied by the lessee under | |
the lease, or | |
(b) for purposes connected with the provision to the lessee of an electronic | 10 |
communications service, | |
as if the prohibition or restriction applied only where the lessor has not given | |
his consent in relation to the matter in question and as if the lessor were | |
required not to withhold that consent unreasonably. | |
(5) Where (whether by virtue of this section or otherwise) a provision falling | 15 |
within subsection (1) or (2) imposes a requirement on a lessor, licensor or party | |
to an agreement not unreasonably to withhold his consent— | |
(a) in relation to an electronic communications matter, or | |
(b) to the obtaining by the occupier of premises of an electronic | |
communications service from or through a particular person, | 20 |
the question whether the consent is unreasonably withheld has to be | |
determined having regard to all the circumstances and to the principle that no | |
person should unreasonably be denied access to an electronic communications | |
network or to electronic communications services. | |
(6) OFCOM may by order provide for this section not to apply in the case of such | 25 |
provisions as may be described in the order. | |
(7) References in this section to electronic communications matters are references | |
to— | |
(a) the provision of an electronic communications network or electronic | |
communications service; | 30 |
(b) the connection of electronic communications apparatus to a relevant | |
electronic communications network or of any such network to another; | |
and | |
(c) the installation, maintenance, adjustment, repair, alteration or use for | |
purposes connected with the provision of such a network or service of | 35 |
electronic communications apparatus. | |
(8) In this section— | |
“alteration” has the same meaning as in the electronic communications | |
code; | |
“lease” includes— | 40 |
(a) a leasehold tenancy (whether in the nature of a head lease, sub- | |
lease or under lease) and an agreement to grant such a tenancy, | |
and | |
(b) in Scotland, a sub-lease and an agreement to grant a sub-lease, | |
and “lessor” and “lessee” are to be construed accordingly; | 45 |
“relevant electronic communications network” means— | |
(a) a public electronic communications network that is specified for | |
the purposes of this section in an order made by the Secretary of | |
State; or | |
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(b) an electronic communications network that is, or is to be, | |
connected (directly or indirectly) to such a network. | |
(9) This section applies to provisions contained in leases, licences or agreements | |
granted or entered into before the commencement of this section to the extent | |
only that provision to that effect is contained in an order made by OFCOM. | 5 |
(10) This section is not to be construed as affecting the operation of paragraph 2(3) | |
of the electronic communications code (lessees etc. bound by rights granted | |
under code by owners). | |
(11) Section 396 applies to the powers of OFCOM to make orders under this section. | |
Information provisions | 10 |
132 Information required for purposes of Chapter 1 functions | |
(1) OFCOM may require a person falling within subsection (2) to provide them | |
with all such information as they consider necessary for the purpose of | |
carrying out their functions under this Chapter. | |
(2) The persons falling within this subsection are— | 15 |
(a) a communications provider; | |
(b) a person who has been a communications provider; | |
(c) a person who makes, or has made, any associated facilities available to | |
others; | |
(d) a person, other than a communications provider, to whom a universal | 20 |
service condition applies or has applied; | |
(e) a person who supplies electronic communications apparatus; | |
(f) a person not falling within the preceding paragraphs who appears to | |
OFCOM to have information required by them for the purpose of | |
carrying out their functions under this Chapter. | 25 |
(3) The information that may be required by OFCOM under subsection (1) | |
includes, in particular, information that they require for any one or more of the | |
following purposes— | |
(a) ascertaining whether a contravention of a condition or other | |
requirement set or imposed by or under this Chapter has occurred or is | 30 |
occurring; | |
(b) ascertaining or verifying the charges payable by a person under section | |
35; | |
(c) ascertaining whether a provision of a condition set under section 42 | |
which is for the time being in force continues to be effective for the | 35 |
purpose for which it was made; | |
(d) ascertaining or verifying amounts payable by virtue of a condition | |
falling within section 48(1)(d); | |
(e) making a designation in accordance with regulations made under | |
section 63; | 40 |
(f) carrying out a review under section 63 or 67; | |
(g) identifying markets and carrying out market analyses in accordance | |
with, or for the purposes of, any provision of this Chapter; | |
(h) ascertaining whether a question has arisen that gives rise to their duty | |
under section 102; | 45 |
(i) considering a matter in exercise of that duty; | |
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(j) statistical purposes connected with the carrying out of any of | |
OFCOM’s functions under this Chapter. | |
(4) A person required to provide information under this section must provide it in | |
such manner and within such reasonable period as may be specified by | |
OFCOM. | 5 |
(5) The powers in this section are subject to the limitations in section 134. | |
133 Information required for related purposes | |
(1) OFCOM may require— | |
(a) a communications provider, or | |
(b) a person who makes associated facilities available to others, | 10 |
to provide OFCOM with all such information as they consider necessary for | |
the purpose specified in subsection (2). | |
(2) That purpose is the carrying out— | |
(a) with a view to publication, and | |
(b) in the interest of the end-users of public electronic communications | 15 |
services, | |
of comparative overviews of the quality and prices of such services. | |
(3) OFCOM may also require— | |
(a) a communications provider, or | |
(b) a person who makes associated facilities available to others, | 20 |
to provide them, for use for such statistical purposes as they think fit, with | |
information relating to any electronic communications network, electronic | |
communications service or associated facilities. | |
(4) A person required to provide information under this section must provide it in | |
such manner and within such reasonable period as may be specified by | 25 |
OFCOM. | |
(5) The powers in this section are subject to the limitations in section 134. | |
134 Restriction on imposing information requirements | |
(1) This section limits the purposes for which, and manner in which, information | |
may be required under sections 132 and 133. | 30 |
(2) OFCOM are not to require the provision of information for the purpose of | |
ascertaining whether a contravention of a general condition has occurred, or is | |
occurring, unless— | |
(a) the requirement is imposed for the purpose of investigating a matter | |
about which OFCOM have received a complaint; | 35 |
(b) the requirement is imposed for the purposes of an investigation that | |
OFCOM have decided to carry out into whether or not the general | |
condition in question has been complied with; | |
(c) the condition in question is one which OFCOM have reason to suspect | |
is one that has been or is being contravened; or | 40 |
(d) the condition in question is one falling within section 48(1)(d). | |
(3) OFCOM are not to require the provision of information under section 132 or | |
133 except— | |
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(a) by a demand for the information that describes the required | |
information and sets out OFCOM’s reasons for requiring it; and | |
(b) where the making of a demand for the information is proportionate to | |
the use to which the information is to be put in the carrying out of | |
OFCOM’s functions. | 5 |
(4) The reasons for requiring information for statistical purposes under section 132 | |
or 133 must set out the statistical purposes for which the information is | |
required. | |
(5) Except in the case of a demand made in the manner authorised by subsection | |
(6), a demand for information required under section 132 or 133 must be | 10 |
contained in a notice served on the person from whom the information is | |
required. | |
(6) In the case of information required by OFCOM for the purpose of ascertaining | |
who is liable to charges under section 35, the demand may— | |
(a) be made by being published in such manner as OFCOM consider | 15 |
appropriate for bringing it to the attention of the persons who are | |
described in the demand as the persons from whom the information is | |
required; and | |
(b) take the form of a general demand for a person so described to provide | |
information when specified conditions relevant to his liability to such | 20 |
charges are satisfied in his case. | |
135 Notification of contravention of information requirements | |
(1) Where OFCOM determine that there are reasonable grounds for believing that | |
a person is contravening, or has contravened, a requirement imposed under | |
section 132 or 133, they may give that person a notification under this section. | 25 |
(2) A notification under this section is one which— | |
(a) sets out the determination made by OFCOM; | |
(b) specifies the requirement and contravention in respect of which that | |
determination has been made; and | |
(c) specifies the period during which the person notified has an | 30 |
opportunity of doing the things specified in subsection (3). | |
(3) Those things are— | |
(a) making representations about the matters notified; and | |
(b) complying with any notified requirement of which he remains in | |
contravention. | 35 |
(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— | 40 |
(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. | 45 |
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