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104 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 | 5 |
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 | 10 |
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 | |
(b) on any such review, modify them in such manner as they think fit by | 15 |
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 | 20 |
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; | |
(c) the need to encourage the sharing of the use of electronic | 25 |
communications apparatus; | |
(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 | 30 |
deals. | |
(5) For the purposes of subsections (5) and (6) of section 3 OFCOM’s duty under | |
subsection (4) ranks equally with their duties under that section. | |
(6) Before giving a direction under section 103, OFCOM must— | |
(a) publish a notification of their proposal to give the direction; and | 35 |
(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; | 40 |
(b) a statement of their reasons for that proposal; | |
(c) a statement of the period within which representations may be made to | |
them about the proposal. | |
(8) The statement of OFCOM’s proposal must— | |
(a) contain a statement that they propose to apply the code in the case of | 45 |
the person in question; | |
(b) set out any proposals of theirs to impose terms under section 103(5); | |
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but this subsection is subject to sections 110(7) and 112(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 | 5 |
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. | |
105 Register of persons in whose case code applies | |
(1) It shall be the duty of OFCOM to establish and maintain a register of persons | 10 |
in whose case the electronic communications code applies by virtue of a | |
direction under section 103. | |
(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. | 15 |
(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. | 20 |
(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 | 25 |
(b) on payment of such fees, | |
as are set out in the notification for the time being in force under subsection (4). | |
106 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 | 30 |
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; | 35 |
(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; | 40 |
(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— | |
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(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 | 5 |
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 | 10 |
(c) the opinion of any person. | |
(4) Before making any regulations under this section, the Secretary of State must | |
consult— | |
(a) OFCOM; and | |
(b) such other persons as he considers appropriate. | 15 |
107 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 106, they may give him a notification | 20 |
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 | 25 |
(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 | 30 |
contravention; and | |
(c) remedying the consequences of notified contraventions. | |
(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. | 35 |
(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. | 40 |
(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; | 45 |
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(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; and | 5 |
(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— | 10 |
(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 | 15 |
(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 | 20 |
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 108(2) or 109(2) that the contravention to which the previous | 25 |
notification related did occur. | |
108 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 107; | 30 |
(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. | |
(2) OFCOM may give the notified provider an enforcement notification if they are | |
satisfied— | 35 |
(a) that he has been in contravention, in one or more of the respects | |
notified, of a requirement specified in the notification under section | |
107; and | |
(b) that he has not, during the period allowed under section 107, taken all | |
such steps as they consider appropriate— | 40 |
(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— | 45 |
(a) a requirement to take such steps for complying with the notified | |
requirement as may be specified in the notification; | |
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(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; | 5 |
and | |
(b) must fix a reasonable period for the making of the payment 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. | 10 |
(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 | |
(c) for any other appropriate remedy or relief. | 15 |
109 Penalties for contravention of code restrictions | |
(1) This section applies (in addition to section 108) where— | |
(a) a person (“the notified provider”) has been given a notification under | |
section 107; | |
(b) OFCOM have allowed the notified provider an opportunity of making | 20 |
representations about the matters notified; and | |
(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may impose a penalty on the notified provider if he— | |
(a) has been in contravention, in any of the respects notified, of a | |
requirement specified in the notification under section 107; and | 25 |
(b) has not, during the period allowed under that section, taken all such | |
steps as they consider appropriate— | |
(i) for complying with the notified requirement; and | |
(ii) for remedying the consequences of the notified contravention of | |
that requirement. | 30 |
(3) Where a notification under section 107 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 under this section in respect of the period of | |
contravention specified in the notification. | 35 |
(5) OFCOM may also impose a penalty on the notified provider if he has | |
contravened, or is contravening, a requirement of an enforcement notification. | |
(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 | 40 |
(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; | |
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(b) any steps taken by him towards complying with the requirements | |
contraventions of which have been notified to him under section 107; | |
and | |
(c) any steps taken by him for remedying the consequences of those | |
contraventions. | 5 |
(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. | 10 |
(9) 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. | |
(10) The Secretary of State may by order amend this section so as to substitute a | 15 |
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. | 20 |
110 Suspension of application of code | |
(1) OFCOM may suspend the application of the electronic communications code | |
in any person’s case 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 35 | 25 |
(whether in respect of the whole or a part of the charges); | |
(b) 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; | 30 |
(c) that an attempt, by the imposition of penalties under section 38, to | |
secure such compliance has failed; and | |
(d) that the suspension of the application of the code is appropriate and | |
proportionate to the seriousness (when repeated as they have been) of | |
the contraventions. | 35 |
(2) OFCOM may, to the extent specified in subsection (3), suspend the application | |
in that person’s case of the electronic communications code if— | |
(a) the electronic communications code has been applied by a direction | |
under section 103 in any person’s case; and | |
(b) OFCOM give a direction under section 39, 97, 129 or 137 for the | 40 |
suspension or restriction of that person’s entitlement to provide an | |
electronic communications network, or a part of such a network. | |
(3) The extent, in any person’s case, of a suspension under subsection (2) must not | |
go beyond the application of the code for the purposes of so much of an | |
electronic communications network as that person is prohibited from | 45 |
providing by virtue of the suspension or restriction of his entitlement to | |
provide such a network, or part of a network. | |
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(4) OFCOM may, to the extent specified in subsection (5), suspend the application | |
in that person’s case of the electronic communications code if— | |
(a) the electronic communications code has been applied by a direction | |
under section 103 in any person’s case; and | |
(b) that person is a person in whose case there have been repeated and | 5 |
serious contraventions of requirements imposed by virtue of any | |
restrictions or conditions under section 106. | |
(5) The extent, in any person’s case, of a suspension under subsection (4) must not | |
go beyond the following applications of the code in his case— | |
(a) its application for the purposes of electronic communications | 10 |
networks, or parts of such a network, which are not yet in existence at | |
the time of the suspension; | |
(b) its application for the purposes of conduit systems, or parts of such | |
systems, which are not yet in existence or not yet used for the purposes | |
of electronic communications networks; and | 15 |
(c) its application for other purposes in circumstances in which the | |
provision of an electronic communications network, or part of such a | |
network, would not have to cease if its application for those purposes | |
were suspended. | |
(6) A suspension under this section of the application of the code in any person’s | 20 |
case must be by a further direction given to that person by OFCOM under | |
section 103. | |
(7) The statement 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 is a statement of their proposal to suspend the application of the code. | 25 |
(8) A suspension of the application of the electronic communications code in any | |
person’s case— | |
(a) shall cease to have effect if the suspension is under subsection (2) and | |
the network suspension or restriction ceases to have effect; but | |
(b) subject to that shall continue in force until such time (if any) as it is | 30 |
withdrawn by OFCOM. | |
(9) In subsection (8) the reference to the network suspension or restriction, in | |
relation to a suspension of the application of the electronic communications | |
code, is a reference to the suspension or restriction of an entitlement to provide | |
an electronic communications network, or part of such a network, which is the | 35 |
suspension or restriction by reference to which the application of the code was | |
suspended under subsection (2). | |
(10) Subject to subsection (11), where the application of the electronic | |
communications code is suspended in a person’s case, he shall not, while it is | |
so suspended, be entitled to exercise any right conferred on him by or by virtue | 40 |
of the code. | |
(11) The suspension, in a person’s case, of the application of the electronic | |
communications code does not, except so far as otherwise provided by a | |
scheme contained in an order under section 114— | |
(a) affect (as between the original parties to it) any agreement entered into | 45 |
for the purposes of the code or any agreement having effect in | |
accordance with it; | |
(b) affect anything done under the code before the suspension of its | |
application; or | |
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