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(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 39 | |
shall be a duty owed to every person who may be affected by a contravention | 5 |
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 | |
(b) an act which— | 10 |
(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 | 15 |
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 91 to 96 apply in relation to a contravention of conditions imposed by | |
a direction under section 39 as they apply in relation to a contravention of | |
conditions set under section 42. | 20 |
Register of providers required to notify or to pay charges | |
41 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 30. | |
(2) OFCOM must record in the register— | 25 |
(a) every designation by them for the purposes of section 30 or 35; | |
(b) every withdrawal by them of such a designation; | |
(c) every notification given to them under section 30; and | |
(d) every notification treated as given to them under that section by a | |
transitional provision made under subsection (12) of that section. | 30 |
(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 | 35 |
(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. | 40 |
(6) OFCOM must make the register available for public inspection— | |
(a) during such hours, and | |
(b) on payment of such fees, | |
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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. | |
42 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 43. | 5 |
(2) A condition set by OFCOM under this section must be either— | |
(a) a general condition; or | |
(b) a condition of one of the following descriptions— | |
(i) a universal service condition; | |
(ii) an access-related condition; | 10 |
(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 48, 49, 54, 55 or 61. | |
(4) A universal service condition is a condition which contains only provisions | 15 |
authorised or required by section 64. | |
(5) An access-related condition is a condition which contains only provisions | |
authorised by section 70. | |
(6) A privileged supplier condition is a condition which contains only the | |
provision required by section 74. | 20 |
(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— | 25 |
(a) are authorised or required by one or more of sections 84 to 89; or | |
(b) in the case of a condition applying to a person falling within section | |
43(8)(b), correspond to provision authorised or required by one or more | |
of sections 84 to 86. | |
(9) An SMP apparatus condition is a condition containing only provisions | 30 |
authorised by section 90. | |
(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 | 35 |
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 | 40 |
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 | |
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(c) 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 48(3)) to set different conditions for different | |
cases (including different conditions in relation to different parts of the | |
United Kingdom); and | 5 |
(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— | |
(a) to provide, in whole or in part, any electronic communications network | 10 |
or electronic communications service; or | |
(b) to make available, in whole or in part, any associated facilities. | |
43 Persons to whom conditions may apply | |
(1) A condition set under section 42 is not to be applied to a person except in | |
accordance with the following provisions of this section. | 15 |
(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. | 20 |
(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 | 25 |
section 74; 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 | 30 |
subsection (3) of section 63, 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 | 35 |
matters. | |
(6) The particular person to whom an access-related condition is applied— | |
(a) in the case of a condition falling within section 71(1), may be any person | |
whatever; and | |
(b) in any other case, must be a person who provides an electronic | 40 |
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). | 45 |
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(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 | 5 |
(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 | |
paragraph (a), must be made (or may be made) under any of sections | 10 |
84 to 86. | |
(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 | 15 |
significant market power in a specific market for electronic | |
communications apparatus (an “apparatus market”). | |
44 Tests for setting or modifying conditions | |
(1) OFCOM must not, in exercise or performance of any power or duty under this | |
Chapter— | 20 |
(a) set a condition under section 42, 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— | 25 |
(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; | |
(c) proportionate to what the condition or modification is intended to | 30 |
achieve; and | |
(d) in relation to what it is intended to achieve, transparent. | |
45 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 42 | 35 |
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 42, or modifying or revoking a | 40 |
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; | |
(c) giving their reasons for making the proposal; and | 45 |
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(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 | 5 |
condition, the applicable requirements of sections 76 to 83 must also be | |
complied with. | |
(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— | 10 |
(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. | 15 |
(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 | 20 |
(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. | 25 |
46 Directions and approvals for the purposes of a s. 42 condition | |
(1) This section applies where— | |
(a) a condition set under section 42 has effect by reference to directions, | |
approvals or consents given by a person (whether OFCOM themselves | |
or another); and | 30 |
(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— | 35 |
(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; | |
(c) proportionate to what it is intended to achieve; and | 40 |
(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 | 45 |
notification must be published— | |
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(a) stating that there is a proposal to give, modify or withdraw it; | |
(b) identifying the person whose proposal it is; | |
(c) setting out the direction, approval or consent to which the proposal | |
relates; | |
(d) setting out the effect of the direction, approval or consent or of its | 5 |
proposed modification or withdrawal; | |
(e) giving reasons for the making of the proposal; and | |
(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 | 10 |
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 | 15 |
Commission under section 47(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 | 20 |
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) | 25 |
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 | 30 |
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 | 35 |
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. | |
47 Delivery of copies of notifications etc. | 40 |
(1) The relevant person must send to the Secretary of State a copy of— | |
(a) every notification published under section 45(1) or (2); | |
(b) a copy of every notification published under section 46(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 46(4); | 45 |
and | |
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(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 45(1) with respect | |
to an SMP services condition; | 5 |
(b) a copy of every direction, approval or consent given for the purposes of | |
such a condition; and | |
(c) a copy of every instrument modifying or withdrawing such a direction, | |
approval or consent. | |
(3) OFCOM must send to the European Commission and to the regulatory | 10 |
authorities of every other member State a copy of every notification published | |
by them under section 45(2) with respect to a proposal which— | |
(a) relates to the setting modification or revocation of an access-related | |
condition falling within section 70(2) or (4) or of an SMP services | |
condition; and | 15 |
(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 46(4) with respect to a proposal which— | 20 |
(a) relates to the giving of a direction, approval or consent for the purposes | |
of— | |
(i) an access-related condition falling within section 70(2) or (4), or | |
(ii) an SMP services condition, | |
or to the modification or withdrawal of such a direction, approval or | 25 |
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 46(4) relating to the giving, | 30 |
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; | 35 |
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. | 40 |
(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 45(1) or (2) or 46(4), | |
(b) every direction, approval or consent given for the purposes of a | |
condition set under section 42, and | 45 |
(c) every instrument modifying or withdrawing such a direction, approval | |
or consent, | |
to the European Commission and to such of the regulatory authorities of the | |
other member States as the relevant person thinks fit. | |
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