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(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. | 5 |
(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 | 10 |
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; | 15 |
(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 | 20 |
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 | 25 |
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. | 30 |
(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 | 35 |
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 | 40 |
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 | 45 |
of signals for general reception. | |
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(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 | |
have— | |
(a) been installed or stored in order to be used for that purpose; and | |
(b) are available to be so used. | 5 |
(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 | 10 |
control of apparatus. | |
Notification by providers | |
30 Advance notification to OFCOM | |
(1) A person shall not— | |
(a) provide a designated electronic communications network, | 15 |
(b) provide a designated electronic communications service, or | |
(c) make available a designated associated facility, | |
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. | 20 |
(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. | 25 |
(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, | 30 |
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 | 35 |
(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 | 40 |
proposal; | |
(c) particulars identifying the person giving the notification; | |
(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 | 45 |
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(d) 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; | 5 |
(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— | 10 |
(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; | 15 |
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. | |
(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 | 20 |
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 | 25 |
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— | 30 |
(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. | 35 |
(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. | 40 |
(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. | 45 |
(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— | |
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(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 | 5 |
(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 | 10 |
(b) treats a person as having given the notification required by that | |
subsection. | |
31 Designations and requirements for the purposes of s. 30 | |
(1) Before— | |
(a) making or withdrawing a designation for the purposes of section 30, or | 15 |
(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 30 | 20 |
OFCOM must also consult the Secretary of State. | |
(3) The way in which a designation for the purposes of section 30 or a requirement | |
under subsection (4) of that section— | |
(a) is to be made or imposed, or | |
(b) may be withdrawn or modified, | 25 |
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 30 may be framed by reference to any | |
such description of networks, services or facilities, or such other factors, as | 30 |
OFCOM think fit. | |
(5) Requirements imposed under section 30(4) may make different provision for | |
different cases. | |
32 Notification of contraventions of s. 30 | |
(1) Where OFCOM determine that there are reasonable grounds for believing that | 35 |
a person has contravened section 30, 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 | 40 |
opportunity of doing the things specified in subsection (3). | |
(3) Those things are— | |
(a) making representations about the determination; and | |
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(b) providing OFCOM with the information which the notified person | |
should have provided for the purposes of section 30 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 |
(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. | 10 |
(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; | 15 |
(b) they have determined that, in those circumstances, a shorter period | |
would be appropriate; and | |
(c) the shorter period has been specified in the notification. | |
(8) A notification under this section— | |
(a) may be given in respect of more than one contravention of section 30; | 20 |
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 30, OFCOM may give a further notification in | 25 |
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 | 30 |
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 | 35 |
30; 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 33(2) or 34(2) that the contravention to which the previous | |
notification related did occur. | 40 |
33 Enforcement notification for contravention of s. 30 | |
(1) This section applies where— | |
(a) a person (“the notified provider”) has been given a notification under | |
section 32; | |
(b) OFCOM have allowed the notified provider an opportunity of making | 45 |
representations about the notified determination; and | |
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(c) the period allowed for the making of the representations has expired. | |
(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 30; and | 5 |
(b) that he has not, during the period allowed under section 32, 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 | 10 |
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 | 15 |
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; | 20 |
(b) for specific performance of a statutory duty under section 45 of the | |
Court of Session Act 1988 (c. 36); or | |
(c) for any other appropriate remedy or relief. | |
34 Penalties for contravention of s. 30 | |
(1) This section applies (in addition to section 33) where— | 25 |
(a) a person (“the notified provider”) has been given a notification under | |
section 32; | |
(b) OFCOM have allowed the notified provider an opportunity of making | |
representations about the matters notified; and | |
(c) the period allowed for the making of the representations has expired. | 30 |
(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 30; and | |
(b) has not, during the period allowed under section 32, provided OFCOM | |
with all the information which he should have provided to remedy the | 35 |
contravention. | |
(3) Where a notification under section 32 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 | 40 |
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 33 in respect of the notified contravention. | |
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(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— | 5 |
(a) any representations made to them by the notified provider; and | |
(b) any steps taken by him towards complying with his obligations under | |
section 30. | |
(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 | 10 |
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 | 15 |
(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). | 20 |
(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 | |
35 Fixing of charges | 25 |
(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 | 30 |
relating to matters mentioned in section 63(3), | |
(c) in respect of the application to him of an SMP apparatus condition, or | |
(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 | 35 |
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 | 40 |
is, at that time, so designated; | |
(c) making available an associated facility 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 63; | 45 |
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