(1) The Secretary of State may require a public communications provider which has been given a designated vendor direction or a designated vendor who has been sent a copy under section 105Z4 not to disclose to any other person the contents of—
(a) the designated vendor direction, or
(b) a part of the designated vendor direction specified by the Secretary of State,
without the permission of the Secretary of State.
(2) The Secretary of State may require a designated vendor not to disclose to any other person the contents of—
(a) the designation notice, or
(b) a part of the designation notice specified by the Secretary of State,
without the permission of the Secretary of State.
(3) The Secretary of State may require a public communications provider which has been given a notification under section 105Z18 (notification of contravention of designated vendor direction etc) not to disclose to any other person the existence or contents of—
(a) the notification, or
(b) a part of the notification specified by the Secretary of State,
without the permission of the Secretary of State.
(4) The Secretary of State may require a public communications provider which has been given a confirmation decision under section 105Z20 (enforcement of notification under section 105Z18) not to disclose to any other person the existence or contents of—
(a) the confirmation decision, or
(b) a part of the confirmation decision specified by the Secretary of State,
without the permission of the Secretary of State.
(5) The Secretary of State may require a person who has been given an urgent enforcement direction not to disclose to any other person the existence or contents of—
(a) the urgent enforcement direction, or
(b) a part of the urgent enforcement direction specified by the Secretary of State,
without the permission of the Secretary of State.
(6) The Secretary of State may require a person who has been given a notice under section 105Z23(4)(a) or (7) (notices relating to confirmation of an urgent enforcement direction) not to disclose to any other person the existence or contents of—
(a) the notice, or
(b) a part of the notice specified by the Secretary of State,
without the permission of the Secretary of State.
(7) The Secretary of State may not impose a requirement on a person under subsection (1), (2), (3), (4), (5) or (6) unless the condition in subsection (8) is satisfied.
(8) The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for—
(a) the contents of the designated vendor direction or the part specified under subsection (1),
(b) the contents of the designation notice or the part specified under subsection (2),
(c) the existence or contents of the notification under section 105Z18 or the part specified under subsection (3),
(d) the existence or contents of the confirmation decision under section 105Z20 or the part specified under subsection (4),
(e) the existence or contents of the urgent enforcement direction or the part specified under subsection (5), or
(f) the existence or contents of the notice under section 105Z23(4)(a) or (7) or the part specified under subsection (6),
(as the case may be) to be disclosed, except as permitted by the Secretary of State.
(9) If the condition in subsection (10) is satisfied, the Secretary of State may require a person consulted under section 105Z3(1), 105Z5(4), 105Z9(1) or 105Z10(4) not to disclose to any other person—
(a) the existence of the consultation and any information disclosed to the person in the consultation, or
(b) the existence of a part of the consultation specified by the Secretary of State and any information disclosed to the person in that part of the consultation,
without the permission of the Secretary of State.
(10) The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for the matters described in subsection (9)(a) or (as the case may be) subsection (9)(b) to be disclosed, except as permitted by the Secretary of State.
(11) Where a person is subject to a requirement under this section not to disclose a matter, disclosure of that matter by an employee of the person or a person engaged in the person’s business is to be regarded as a disclosure by the person, unless the person can show that the person took all reasonable steps to prevent such a disclosure.
(1) Sections 105Z18, 105Z19(1) to (3), 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement not to disclose imposed under section 105Z25 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsections (2) to (6).
(2) Section 105Z18 (as applied by this section) has effect as if, in subsection (2)(d), for sub-paragraphs (i) and (ii) there were substituted—
(i) bring the contravention to an end;
(ii) limit the consequences of the contravention;
.
(3) Section 105Z19 (as applied by this section) has effect as if—
(a) in subsection (2), the maximum penalty specified were £10 million;
(b) in subsection (3), the maximum penalty specified were £50,000 per day.
(4) The Secretary of State may by regulations amend subsection (3) so as to substitute a different amount for the amount for the time being specified in subsection (3)(a) or (b).
(5) No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
(6) Section 105Z20 (as applied by this section) has effect as if—
(a) in subsection (6)—
(i) in paragraph (a), for sub-paragraphs (i) and (ii) there were substituted—
(i) to bring the contravention to an end, and
(ii) to limit the consequences of the contravention,
;
(ii) in paragraph (b), for “comply with that requirement and remedy” there were substituted “bring that contravention to an end and limit”;
(iii) in the words following paragraph (b), for “comply with that requirement or remedy” there were substituted “bring that contravention to an end or limit”;
(b) in subsection (7)(b)(ii), for the words from “comply” to “remedy” there were substituted “bring the contravention to an end or to limit”.
105Z27 Power of Secretary of State to require information etc
(1) The Secretary of State may require a person falling within subsection (2) to provide the Secretary of State with such information as the Secretary of State may reasonably require for the purpose of exercising the Secretary of State’s functions under sections 105Z1 to 105Z26.
(2) The persons falling within this subsection are—
(a) a person who is or has been a public communications provider;
(b) a person not falling within paragraph (a) who appears to the Secretary of State to have information relevant to the exercise of the Secretary of State’s functions under sections 105Z1 to 105Z26.
(3) The Secretary of State may require a person falling within subsection (2)—
(a) to produce, generate or obtain information for the purpose of providing it under subsection (1);
(b) to collect or retain information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1);
(c) to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating information to be provided under subsection (1).
(4) The information that may be required under subsection (1) includes, in particular, information about—
(a) the use, or proposed use, of goods, services or facilities supplied, provided or made available by a particular person or a particular description of person;
(b) goods, services or facilities proposed to be supplied, provided or made available by a particular person or a particular description of person;
(c) goods, services or facilities proposed to be supplied, provided or made available by a person who has not, or has not recently, supplied, provided or made available for use in the United Kingdom—
(i) goods, services or facilities of that description; or
(ii) any goods, services or facilities;
(d) the manner in which a public electronic communications network or a public electronic communications service is, or is proposed to be, provided or facilities that are associated facilities by reference to such a network or service are, or are proposed to be, made available;
(e) future developments of such a network or service or such associated facilities.
(5) The Secretary of State may require a person to provide information under this section at such times or in such circumstances as may be specified by the Secretary of State.
(6) A person must comply with a requirement imposed under this section in such manner and within such reasonable period as may be specified by the Secretary of State.
(7) The powers in this section are subject to the limitations in section 105Z28.
(8) A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.
105Z28 Restrictions on imposing information requirements
(1) This section limits the purposes for which, and manner in which, requirements may be imposed under section 105Z27.
(2) The Secretary of State is not to require a person to provide information under section 105Z27 except by a notice served on the person that—
(a) describes the required information; and
(b) sets out the Secretary of State’s reasons for requiring it.
(3) The Secretary of State is not to impose a requirement on a person under section 105Z27(3) except by a notice served on the person that sets out the requirement and the Secretary of State’s reasons for imposing it.
(4) The requirements in subsections (2)(b) and (3) do not apply if or to the extent that the Secretary of State considers that setting out reasons in the notice would be contrary to the interests of national security.
(5) The Secretary of State is not to require the provision of information under section 105Z27 except 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 the Secretary of State’s functions.
(6) The Secretary of State is not to impose a requirement on a person under section 105Z27(3) except where the imposition of the requirement is proportionate to the use to which the information required to be produced, generated, obtained, collected or retained (including information required to be produced or generated by processing, collating or analysing) is to be put in the carrying out of the Secretary of State’s functions.
(7) A requirement to provide information under section 105Z27 does not require a person to disclose information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings.
105Z29 Enforcement of information requirements etc
(1) Sections 105Z18, 105Z19(1) to (3), 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement under section 105Z27 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsection (2).
(2) Section 105Z19 (as applied by this section) has effect as if—
(a) in subsection (2), the maximum penalty specified were £10 million;
(b) in subsection (3), the maximum penalty specified were £50,000 per day.
(3) The Secretary of State may by regulations amend subsection (2) so as to substitute a different amount for the amount for the time being specified in subsection (2)(a) or (b).
(4) No regulations are to be made containing provision authorised by subsection (3) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
106 Application of the electronic communications code
(1) In this Chapter “the electronic communications code” means the code set out in Schedule 3A .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The electronic communications code shall have effect—
(a) in the case of a person to whom it is applied by a direction given by OFCOM; and
(b) in the case of the Secretary of State or any Northern Ireland department where the Secretary of State or that department is providing or proposing to provide an electronic communications network.
(4) The only purposes for which the electronic communications code may be applied in a person’s case by a direction under this section are—
(a) the purposes of the provision by him of an electronic communications network; or
(b) the purposes of the provision by him of a system of infrastructure which he is making available, or proposing to make available, for use by providers of electronic communications networks for the purposes of the provision by them of their networks.
(5) A direction applying the electronic communications code in any person’s case may provide for that code to have effect in his case—
(a) in relation only to such places or localities as may be specified or described in the direction;
(b) for the purposes only of the provision of such electronic communications network, or part of an electronic communications network, as may be so specified or described; or
(c) for the purposes only of the provision of such system of infrastructure, or part of a system of infrastructure, as may be so specified or described.
(6) The Secretary of State may by order provide for the electronic communications code to have effect for all purposes with a different amount substituted for the amount for the time being specified in paragraph 85(7) of the code (minimum compensation).
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.
(1A) Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 makes provision about the time within which an application under subsection (1) must be determined.
(2) If OFCOM publish a notification setting out their requirements with respect 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 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 giving a notification of the revised requirements.
(3A) A modification may not be made under subsection (3) unless the modification is—
(a) objectively justifiable, and
(b) proportionate to what it is intended to achieve.
(3B) Before making a modification under subsection (3), OFCOM must publish a notification of the proposed modification which contains the following—
(a) a statement of the proposal,
(b) a statement of their reasons for the proposal, and
(c) a statement of the period within which representations may be made to them about the proposal.
(3C) The period specified under subsection (3B)(c) must end no less than 30 days after the day of the publication of the notification.
(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 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 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 deals.
(5) For the purposes of subsections (6) and (7) of section 3 OFCOM’s duty under subsection (4) ranks equally with their duties under that section.
(6) Before giving a direction under section 106, OFCOM must—
(a) publish a notification of their proposal to give the direction; and
(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;
(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 the person in question;
(b) set out any proposals of theirs to impose terms under section 106(5);
but this subsection is subject to sections 113(7) and 115(5).
(9) The period specified as the period within which representations may be made must end no less than 30 days after the day of the publication of the notification.
(10) The publication by OFCOM of a notification for any of the purposes of this 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.
108 Register of persons in whose case code applies
(1) It shall be the duty of OFCOM to establish and maintain a register of persons in whose case the electronic communications code applies by virtue of a direction under section 106.
(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.
(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.
(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
(b) on payment of such fees,
as are set out in the notification for the time being in force under subsection (4).
109 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 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;
(b) the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside;
(ba) the need to promote economic growth in the United Kingdom;
(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;
(d) the need to encourage the sharing of the use of electronic communications apparatus;
(da) the need to ensure that restrictions and conditions are objectively justifiable and proportionate to what they are intended to achieve;
(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—
(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.
(2A) Subsection (2B) applies if the Secretary of State has complied with subsection (2)(b) in connection with any particular exercise of the power to make regulations under this section.
(2B) The Secretary of State is to be treated as also having complied with any duty imposed in connection with that exercise of that power by any of the following—
section 11A(2) of the National Parks and Access to the Countryside Act 1949;
section 85(1) of the Countryside and Rights of Way Act 2000;
section 17A(1) of the Norfolk and Suffolk Broads Act 1988;
section 14 of the National Parks (Scotland) Act 2000 (asp 10);
Article 4(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (S.I. 1985/170 (N.I. 1)).
(3) The power of the Secretary of State to provide by regulations for the restrictions and conditions subject to which the electronic communications 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
(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.
(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 109, 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;
(b) specifies the requirement and the contravention in respect of which that determination has been made; ...
(c) specifies the period during which the person notified has an opportunity to make representations;
(d) specifies the steps that OFCOM think should be taken by the person in order to—
(i) comply with the requirement;
(ii) remedy the consequences of the contravention;
(e) specifies any penalty which OFCOM are minded to impose in accordance with section 110A; and
(f) where the contravention is serious, specifies any direction which OFCOM are minded to give under section 113(4).
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) A notification under this section—
(a) may be given in respect of more than one contravention; 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 a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—
(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
(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
110A Penalties for contravention of code restrictions
(1) This section applies where a person is given a notification under section 110 which specifies a proposed penalty.
(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.
(3) Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.
(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—
(a) the giving of a confirmation decision under section 111(4)(c) which requires immediate action; or
(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.
(5) The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed
(6) The amount of any other penalty specified in a notification under section 110 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) 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).
(8) No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
111 Confirmation decision for contravention of code restrictions
(1) This section applies where—
(a) a person (“the notified provider”) has been given a notification under section 110;
(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—
(a) give the notified provider a decision (a “confirmation decision”) confirming the imposition of requirements on the notified provider, or the giving of a direction to the notified provider, or both, in accordance with the notification under section 110; or
(b) notify the notified provider that they are satisfied with the representations and that no further action will be taken.
(3) OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of a requirement specified in the notification under section 110.
(4) A confirmation decision—
(a) must be given to the person without delay;
(b) must include reasons for the decision;
(c) may require immediate action by the person to comply with requirements of a kind mentioned in section 110(2)(d), or may specify a period within which the person must comply with those requirements; and
(d) may require the person to pay—
(i) the penalty specified in the notification under section 110(2)(e), or
(ii) such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and
may specify the period within which the penalty is to be paid.
(5) It shall be the duty of a person to whom a confirmation decision has been given to comply with any requirement imposed by it .
(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.
(7) A penalty imposed by a confirmation decision—
(a) must be paid to OFCOM; and
(b) if not paid within the period specified by them, is to be recoverable by them accordingly.
(1) This section applies where OFCOM determine—
(a) that they are entitled to give a notification under section 110 with respect to a contravention by a person (“P”) of a requirement imposed by virtue of any restrictions or conditions under section 109;
(b) that there are reasonable grounds for suspecting that the case is an urgent case; and
(c) that the urgency of the case makes it appropriate for OFCOM to take action under this section.
(2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—
(a) a serious threat to the safety of the public, to public health or to national security;
(b) serious economic or operational problems for persons (other than P) who are communications providers or persons who make associated facilities available; or
(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.
(3) OFCOM may, to the extent specified in subsection (4), give a direction suspending the application in P’s case of the electronic communications code if the electronic communications code has been applied to P by a direction under section 106.
(4) The extent of a suspension under subsection (3) must not go beyond the following applications of the code in that person’s case—
(a) its application for the purposes of electronic communications 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
(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.
(5) A direction under subsection (3), except so far as it otherwise provides, shall continue in force until such time (if any) as it is withdrawn by OFCOM.
(6) Subject to subsection (7), where the application of the electronic communications code is suspended in a person’s case, the person is not entitled to exercise any right conferred by or by virtue of the code.
(7) The suspension of the application of the electronic communications code in a person’s case does not, except so far as otherwise provided by a scheme contained in an order under section 117—
(a) affect (as between the original parties to it) any agreement entered into 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
(c) require the removal of, or prohibit the use of, any apparatus lawfully installed on, in or over any premises before that suspension.
(1) As soon as reasonably practicable after giving a direction under section 111A(3), OFCOM must give the person to whom it is given—
(a) an opportunity to make representations to them about the grounds on which it was given and its effect; and
(b) an opportunity to propose steps to remedy the situation.
(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—
(a) whether the contravention providing the grounds for the giving of the direction did occur; and
(b) whether the circumstances made it an urgent case justifying the giving of the direction.
(3) The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—
(a) require additional time to consider representations received; or
(b) decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (2).
(4) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.
(5) If not, they must exercise their power to revoke it.
(6) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.
(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 or repeated contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);
(aa) that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;
(b) that , in the case of a repeated contravention 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;
(c) that , in the case of a repeated contravention an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and
(d) that the suspension of the application of the code is appropriate and proportionate to the contravention.
(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 106 in any person’s case; and
(b) OFCOM give a direction under section 42, 100 (including that section as applied by section 105S or 105Z17), 132 or 140 for the 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 providing by virtue of the suspension or restriction of his entitlement to provide such a network, or part of a network.
(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 106 in any person’s case; and
(b) that person is a person in whose case there have been repeated or serious contraventions of requirements imposed by virtue of any restrictions or conditions under section 109.
(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 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
(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 case must be by a further direction given to that person by OFCOM under section 106.
(7) The statement required by section 107(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.
(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 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 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 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 117—
(a) affect (as between the original parties to it) any agreement entered into 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
(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 42 applies for the purposes of subsection (1) as it applies for the purposes of that section.
(13) For the purposes of subsection (4) there are repeated contraventions by a person of conditions or restrictions under section 109 if—
(a) in the case of a previous notification given to the person under section 110, OFCOM have given a confirmation decision to the person under section 111(2);
(b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition or restriction under section 109; and
(c) the previous confirmation decision and the subsequent ones all relate to contraventions of the same condition or restriction (whether the same contravention or different contraventions).
(1) Except in an urgent case , or a case of a single serious contravention, , OFCOM are not to give a direction under section 113(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 117;
(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 opportunity.
(2) That period is such reasonable period as OFCOM may specify, beginning with the day on which the notification is given.
(3) As soon as practicable after giving a direction under section 113 in an urgent case, OFCOM must provide the operator with an opportunity of—
(a) making representations about the effect of the direction and of any steps taken under section 117 in connection with the suspension; and
(b) proposing steps for remedying the situation that has given rise to the situation.
(3A) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—
(a) whether the contravention providing the grounds for the giving of the direction did occur; and
(b) whether the circumstances made it an urgent case justifying the giving of the direction.
(3B) The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—
(a) require additional time to consider representations received; or
(b) decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).
(3C) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.
(3D) If not, they must revoke it.
(4) A case is an urgent case for the purposes of this section if OFCOM—
(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 113, for the making and consideration of representations; and
(b) decide for that reason to act in accordance with subsection (3), instead 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;
(b) serious economic or operational problems for persons (apart from the operator) who are communications providers or persons who make associated facilities available; or
(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.
115 Modification and revocation of application of code
(1) OFCOM may at any time modify the terms on which, by virtue of section 106(5), the code is applied in a person’s case.
(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 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 106 to the person in whose case the electronic communications code has been applied by the direction being modified or revoked.
(4A) A modification under this section may not be made unless the modification is—
(a) objectively justifiable, and
(b) proportionate to what it is intended to achieve.
(5) The matters required by section 107(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 106(5);
(b) a statement of their proposal to revoke the direction applying the code.
116 Notification of cessation by person to whom code applies
(1) This section applies where, by virtue of a direction under section 106, the electronic communications code applies in any person’s case for the purposes of the provision by him of—
(a) an electronic communications network which is not of a description designated for the purposes of section 33; or
(b) such a system of conduits as is mentioned in section 106(4)(b).
(2) If that person ceases to provide that network or conduit system, he must notify OFCOM of that fact.
(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 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 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
(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).
(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.
117 Transitional schemes on cessation of application of code
(1) Where it appears to OFCOM—
(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 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 113 of the application of the code in the former operator’s case;
(b) the revocation or modification under section 115 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 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 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 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 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 in pursuance of any such right; or
(c) an obligation to pay the expenses of any such removal or restoration.
(5) Sections 110 to 112 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 109.
(6) Section 403 applies to the power of OFCOM to make an order under this section.
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.
119 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.
(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 106; or
(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 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 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—
(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;
(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 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 applicant by any other person in respect of the matter in connection with which the assistance is given; and
(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 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and any provision made by or under Part 1 of that Act for the payment of any sum to the Lord Chancellor ;
(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 Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).
(1) OFCOM shall have the power, for the purpose of regulating the provision, content, promotion and marketing of premium rate services, to set conditions 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.
(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—
(za) the provisions of an approved code;
(a) directions given in accordance with an approved code by the enforcement authority and for the purpose of enforcing its provisions; and
(b) if there is no such code, the provisions of the order for the time being in force under section 122.
(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.
(5) Section 47 applies to the setting, modification and revocation of a condition under this section as it applies to the setting, modification and revocation of a condition under section 45.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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 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—
(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.
(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 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), (11) or (12).
(10) A person falls within this subsection if—
(a) he is the provider of an electronic communications service used for the 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 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 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) 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) the use of that network for the provision of premium rate services, or of services that include or may include premium rate services, is authorised by an agreement subsisting between that person and either an intermediary service provider or a person who is a provider of the relevant service by virtue of subsection (10) or (11).
(13) 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 other person shall be a provider of the relevant service for the purposes of this Chapter.
(14) 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
(c) a facility for registering a vote or recording a preference.
(15) In this section—
“approved code” means a code for the time being approved under section 121;
“enforcement authority”, in relation to such a code, means the person who under the code has the function of enforcing it; and
“intermediary service provider” means a person who—
provides an electronic communications service used for the provision of the relevant service or an electronic communications network so used; and
is a party to an agreement with—
a provider of the relevant service falling within subsection (9)(a) to (d), or
another intermediary service provider,
which relates to the use of that electronic communications service or network for the provision of premium rate services, or of services that include or may include premium rate services.
120A Procedure for setting, modifying and revoking premium rate services conditions
(1) The way in which conditions are to be set or modified under section 120 is by the publication of a notification setting out the conditions or modifications.
(2) The way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.
(3) Before setting such conditions, or modifying or revoking a 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
(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) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.
(5) OFCOM may give effect to the proposal, with any modifications that appear to OFCOM to be appropriate, after—
(a) considering every representation about the proposal made to them during the period specified in the notification; and
(b) having 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.
(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 to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by its contents.
(7) OFCOM must send a copy of every notification published under this section to the Secretary of State.
(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 in the provision of such services;
(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 120,
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
(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 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
(g) that, in relation to what those provisions are intended to achieve, they are transparent.
(3) OFCOM are not for those purposes to approve so much of a code as imposes an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless they are satisfied that the obligation—
(a) arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;
(b) arises only after a notice identifying the service and setting out respects in which requirements of the code have been contravened in relation to it has been given to the relevant provider by the person responsible for enforcing the code; and
(c) is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.
(4) 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.
(5) 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 123(2);
(aa) provision that applies where there is or has been more than one contravention of the code or directions given in accordance with it by a person and which enables—
(i) a single penalty (which does not exceed that maximum penalty) to be imposed on the person in respect of all of those contraventions, or
(ii) separate penalties (each of which does not exceed that maximum penalty) to be imposed on the person in respect of each of those contraventions,
according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;
(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 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.
(6) OFCOM may, at any time, for the purposes of section 120—
(a) approve modifications that have been made to an approved code; or
(b) withdraw their approval from an approved code.
(7) Where OFCOM give or withdraw an approval for the purposes of section 120, they must give notification of their approval or of its withdrawal.
(8) 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 opinion, are likely to be affected by the approval or withdrawal.
122 Orders by OFCOM in the absence of a code under s. 121
(1) OFCOM may make an order under this section if, at any time, they consider that there is no code in force to which they think it would be appropriate to give, or to continue to give, their approval under section 121.
(2) An order under this section may make such of the following provisions as OFCOM think fit—
(a) provision imposing requirements with respect to the provision and contents of premium rate services, and with respect to the facilities made available in the provision of such services (including provision about pricing);
(b) provision imposing requirements with respect to the arrangements made by the providers of premium rate services for the promotion and marketing of those services;
(c) provision for the enforcement of requirements imposed by virtue of paragraph (a) or (b);
(d) provision making other arrangements for the purposes of those requirements.
(3) The power to make provision by an order under this section includes, in particular—
(a) power to establish a body corporate with the capacity to make its own rules and to establish its own procedures;
(b) power to determine the jurisdiction of a body established by such an order or, for the purposes of the order, of any other person;
(c) power to confer jurisdiction with respect to any matter on OFCOM themselves;
(d) power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;
(e) power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order;
(f) power to make provision falling within section 121(5)(c) for the enforcement of the provisions of the order; and
(g) power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.
(4) An order under this section may require such providers of premium rate services as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—
(a) the establishment and maintenance, in accordance with such an order, of any body corporate or procedure; or
(b) the making of other arrangements for the purposes of the requirements of such an order.
(5) An order under this section is not to impose an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless the obligation—
(a) arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;
(b) arises only after a notice identifying the service and setting out respects in which requirements of the order have been contravened in relation to it has been given to the relevant provider by OFCOM; and
(c) is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.
(6) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.
(7) Section 403 applies to the power of OFCOM to make an order under this section.
(8) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Sections 94 to 96 apply in relation to a contravention of conditions set under section 120 as they apply in relation to a contravention of a condition set under section 45.
(1A) Subsection (1B) applies where a notification under section 94 as applied by this section relates to more than one contravention of—
(a) a code approved under section 121,
(b) directions given in accordance with such a code, or
(c) an order under section 122.
(1B) Section 96(3) as applied by this section enables OFCOM to impose—
(a) a single penalty in respect of all of those contraventions, or
(b) separate penalties in respect of each of those contraventions,
according to whether OFCOM determine that a single penalty or separate penalties are appropriate and proportionate to those contraventions.
(2) The amount of each penalty imposed under section 96 as applied by this section is to be such amount not exceeding £250,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(3) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified provider;
(b) any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94 (as applied); and
(c) any steps taken by him for remedying the consequences of those contraventions.
(4) 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 (2).
(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
124 Suspending service provision for contraventions of s. 120 conditions
(1) OFCOM may give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—
(a) that he is or has been in serious and repeated contravention of conditions set under section 120;
(b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 (as applied by section 123) or both, to secure compliance with the contravened conditions has failed;
(c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions; and
(d) that the giving of the direction is required for reasons of public policy.
(2) OFCOM may also give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—
(a) that he is, or has been, in contravention of conditions set under section 120 in respect of a premium rate service;
(b) that the circumstances of the contravention make it appropriate for OFCOM to suspend or restrict the provision of premium rate services provided by the contravening provider without the conditions set out in subsection (1) being satisfied; and
(c) that in those circumstances the giving of the direction is urgently required for reasons of public policy.
(3) A direction under this section is—
(a) a direction to the contravening provider to secure the suspension of the provision of premium rate services provided by him; or
(b) a direction requiring him to secure compliance with restrictions, set out in the direction, on the provision of such services.
(4) A direction under this section—
(a) must specify the services to which it relates; and
(b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.
(5) A direction under this section—
(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 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 contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.
(6) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the contravening 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.
(7) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—
(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 services as they may determine.
(8) Sections 102 and 103 apply in the case of a direction under this section as they apply in the case of a direction under section 100, but as if references in section 103(1) to an electronic communications network or electronic communications service were references to a premium rate service.
(9) For the purposes of this section there are repeated contraventions by a person of conditions set under section 120 to the extent that—
(a) in the case of a previous notification given to that person under section section 94 (as applied by section 123), OFCOM have determined for the purposes of section 95(2) or 96(2) (as so applied) that such a contravention did occur; and
(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of a condition set under section 120.
(10) For the purposes of this section the seriousness of repeated contraventions of conditions set under section 120 has to be determined by reference to the seriousness of the contraventions of the approved code or order by reference to which the conditions have effect.
124A Obligation to notify subscribers of copyright infringement reports
(1) This section applies if it appears to a copyright owner that—
(a) a subscriber to an internet access service has infringed the owner's copyright by means of the service; or
(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service.
(2) The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an “initial obligations code”) allows the owner to do so.
(3) A “copyright infringement report” is a report that—
(a) states that there appears to have been an infringement of the owner's copyright;
(b) includes a description of the apparent infringement;
(c) includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;
(d) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered; and
(e) complies with any other requirement of the initial obligations code.
(4) An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so.
(5) A notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.
(6) A notification under subsection (4) must include—
(a) a statement that the notification is sent under this section in response to a copyright infringement report;
(b) the name of the copyright owner who made the report;
(c) a description of the apparent infringement;
(d) evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered;
(e) information about subscriber appeals and the grounds on which they may be made;
(f) information about copyright and its purpose;
(g) advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works;
(h) advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use; and
(i) anything else that the initial obligations code requires the notification to include.
(7) For the purposes of subsection (6)(h) the internet service provider must take into account the suitability of different protection for subscribers in different circumstances.
(8) The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular—
(a) a statement that information about the apparent infringement may be kept by the internet service provider;
(b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber;
(c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement; and
(d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures.
(9) In this section “notify”, in relation to a subscriber, means send a notification to the electronic or postal address held by the internet service provider for the subscriber (and sections 394 to 396 do not apply).
124B Obligation to provide copyright infringement lists to copyright owners
(1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if—
(a) the owner requests the list for that period; and
(b) an initial obligations code requires the internet service provider to provide it.
(2) A “copyright infringement list” is a list that—
(a) sets out, in relation to each relevant subscriber, which of the copyright infringement reports made by the owner to the provider relate to the subscriber, but
(b) does not enable any subscriber to be identified.
(3) A subscriber is a “relevant subscriber” in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code.
124C Approval of code about the initial obligations
(1) The obligations of internet service providers under sections 124A and 124B are the “initial obligations”.
(2) If it appears to OFCOM—
(a) that a code has been made by any person for the purpose of regulating the initial obligations; and
(b) that it would be appropriate for them to approve the code for that purpose,
they may by order approve it, with effect from the date given in the order.
(3) The provision that may be contained in a code and approved under this section includes provision that—
(a) specifies conditions that must be met for rights and obligations under the copyright infringement provisions or the code to apply in a particular case;
(b) requires copyright owners or internet service providers to provide any information or assistance that is reasonably required to determine whether a condition under paragraph (a) is met.
(4) The provision mentioned in subsection (3)(a) may, in particular, specify that a right or obligation does not apply in relation to a copyright owner unless the owner has made arrangements with an internet service provider regarding—
(a) the number of copyright infringement reports that the owner may make to the provider within a particular period; and
(b) payment in advance of a contribution towards meeting costs incurred by the provider.
(5) The provision mentioned in subsection (3)(a) may also, in particular, provide that—
(a) except as provided by the code, rights and obligations do not apply in relation to an internet service provider unless the number of copyright infringement reports the provider receives within a particular period reaches a threshold set in the code; and
(b) if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time.
(6) OFCOM must not approve a code under this section unless satisfied that it meets the criteria set out in section 124E.
(7) Not more than one approved code may have effect at a time.
(8) OFCOM must keep an approved code under review.
(9) OFCOM may by order, at any time, for the purpose mentioned in subsection (2)—
(a) approve modifications that have been made to an approved code; or
(b) withdraw their approval from an approved code,
with effect from the date given in the order, and must do so if the code ceases to meet the criteria set out in section 124E.
(10) The consent of the Secretary of State is required for the approval of a code or the modification of an approved code.
(11) An order made by OFCOM under this section approving a code or modification must set out the code or modification.
(12) Section 403 applies to the power of OFCOM to make an order under this section.
(13) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
124D Initial obligations code by OFCOM in the absence of an approved code
(1) For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations.
(2) OFCOM may but need not make a code under subsection (1) for a time before the end of—
(a) the period of six months beginning with the day on which sections 124A and 124B come into force, or
(b) such longer period as the Secretary of State may specify by notice to OFCOM.
(3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b).
(4) A code under this section may do any of the things mentioned in section 124C(3) to (5).
(5) A code under this section may also—
(a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;
(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;
(c) provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code;
(d) make other provision for the enforcement of such awards and directions;
(e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;
(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person;
(g) make other provision for the enforcement of such awards and directions; and
(h) make other provision for the purpose of regulating the initial obligations.
(6) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124E.
(7) OFCOM must—
(a) keep a code under this section under review; and
(b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124E.
(8) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.
(9) Section 403 applies to the power of OFCOM to make an order under this section.
(10) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(1) The criteria referred to in sections 124C(6) and 124D(6) are—
(a) that the code makes the required provision about copyright infringement reports (see subsection (2));
(b) that it makes the required provision about the notification of subscribers (see subsections (3) and (4));
(c) that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the meaning of section 124B(3) (see subsections (5) and (6));
(d) that it makes provision about how internet service providers are to keep information about subscribers;
(e) that it limits the time for which they may keep that information;
(f) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M;
(g) that the requirements concerning administration and enforcement are met in relation to the code (see subsections (7) and (8));
(h) that the requirements concerning subscriber appeals are met in relation to the code (see section 124K);
(i) that the provisions of the code are objectively justifiable in relation to the matters to which it relates;
(j) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;
(k) that those provisions are proportionate to what they are intended to achieve; and
(l) that, in relation to what those provisions are intended to achieve, they are transparent.
(2) The required provision about copyright infringement reports is provision that specifies—
(a) requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report;
(b) the standard of evidence that must be included; and
(c) the required form of the report.
(3) The required provision about the notification of subscribers is provision that specifies, in relation to a subscriber in relation to whom an internet service provider receives one or more copyright infringement reports—
(a) requirements as to the means by which the provider identifies the subscriber;
(b) which of the reports the provider must notify the subscriber of; and
(c) requirements as to the form, contents and means of the notification in each case.
(4) The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification.
(5) The threshold applying in accordance with subsection (1)(c) may, subject to subsection (6), be set by reference to any matter, including in particular one or more of—
(a) the number of copyright infringement reports;
(b) the time within which the reports are made; and
(c) the time of the apparent infringements to which they relate.
(6) The threshold applying in accordance with subsection (1)(c) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date; and a copyright infringement list provided under section 124B must not take into account any such report.
(7) The requirements concerning administration and enforcement are—
(a) that OFCOM have, under the code, the functions of administering and enforcing it, including the function of resolving owner-provider disputes;
(b) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and
(c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.
(8) The provision mentioned in subsection (7) may include, in particular—
(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 124L(2);
(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's failure to comply with the code or the copyright infringement provisions.
(9) In this section “owner-provider dispute” means a dispute that—
(a) is between persons who are copyright owners or internet service providers; and
(b) relates to an act or omission in relation to an initial obligation or an initial obligations code.
(1) OFCOM must prepare the following reports for the Secretary of State about the infringement of copyright by subscribers to internet access services.
(2) OFCOM must prepare a full report for—
(a) the period of 12 months beginning with the first day on which there is an initial obligations code in force; and
(b) each successive period of 12 months.
(3) OFCOM must prepare an interim report for—
(a) the period of 3 months beginning with the first day on which there is an initial obligations code in force; and
(b) each successive period of 3 months, other than one ending at the same time as a period of 12 months under subsection (2).
But this is subject to any direction by the Secretary of State under subsection (4).
(4) The Secretary of State may direct that subsection (3) no longer applies, with effect from the date given in the direction.
(5) A full report under this section must include—
(a) an assessment of the current level of subscribers' use of internet access services to infringe copyright;
(b) a description of the steps taken by copyright owners to enable subscribers to obtain lawful access to copyright works;
(c) a description of the steps taken by copyright owners to inform, and change the attitude of, members of the public in relation to the infringement of copyright;
(d) an assessment of the extent of the steps mentioned in paragraphs (b) and (c);
(e) an assessment of the extent to which copyright owners have made copyright infringement reports;
(f) an assessment of the extent to which they have brought legal proceedings against subscribers in relation to whom such reports have been made;
(g) an assessment of the extent to which any such proceedings have been against subscribers in relation to whom a substantial number of reports have been made; and
(h) anything else that the Secretary of State directs OFCOM to include in the report.
(6) An interim report under this section must include—
(a) the assessments mentioned in subsection (5)(a), (e) and (f); and
(b) anything else that the Secretary of State directs OFCOM to include in the report.
(7) OFCOM must send a report prepared under this section to the Secretary of State as soon as practicable after the end of the period for which it is prepared.
(8) OFCOM must publish every full report under this section—
(a) as soon as practicable after they send it to the Secretary of State, and
(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.
124G Obligations to limit internet access: assessment and preparation
(1) The Secretary of State may direct OFCOM to—
(a) assess whether one or more technical obligations should be imposed on internet service providers;
(b) take steps to prepare for the obligations;
(c) provide a report on the assessment or steps to the Secretary of State.
(2) A “technical obligation”, in relation to an internet service provider, is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet.
(3) A “technical measure” is a measure that—
(a) limits the speed or other capacity of the service provided to a subscriber;
(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;
(c) suspends the service provided to a subscriber; or
(d) limits the service provided to a subscriber in another way.
(4) A subscriber to an internet access service is “relevant” if the subscriber is a relevant subscriber, within the meaning of section 124B(3), in relation to the provider of the service and one or more copyright owners.
(5) The assessment and steps that the Secretary of State may direct OFCOM to carry out or take under subsection (1) include, in particular—
(a) consultation of copyright owners, internet service providers, subscribers or any other person;
(b) an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service; and
(c) steps to prepare a proposed technical obligations code.
(6) Internet service providers and copyright owners must give OFCOM any assistance that OFCOM reasonably require for the purposes of complying with any direction under this section.
(7) The Secretary of State must lay before Parliament any direction under this section.
(8) OFCOM must publish every report under this section—
(a) as soon as practicable after they send it to the Secretary of State, and
(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.
(1) The Secretary of State may by order impose a technical obligation on internet service providers if—
(a) OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and
(b) taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order.
(2) No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force.
(3) An order under this section must specify the date from which the technical obligation is to have effect, or provide for it to be specified.
(4) The order may also specify—
(a) the criteria for taking the technical measure concerned against a subscriber;
(b) the steps to be taken as part of the measure and when they are to be taken.
(5) No order is to be made under this section unless—
(a) the Secretary of State has complied with subsections (6) to (10), and
(b) a draft of the order has been laid before Parliament and approved by a resolution of each House.
(6) If the Secretary of State proposes to make an order under this section, the Secretary of State must lay before Parliament a document that—
(a) explains the proposal, and
(b) sets it out in the form of a draft order.
(7) During the period of 60 days beginning with the day on which the document was laid under subsection (6) (“the 60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications).
(8) In preparing a draft order under this section to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—
(a) any representations, and
(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.
(9) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6).
(10) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.
124I Code by OFCOM about obligations to limit internet access
(1) For any period during which there are one or more technical obligations in force under section 124H, OFCOM must by order make a technical obligations code for the purpose of regulating those obligations.
(2) The code may be made separately from, or in combination with, any initial obligations code under section 124D.
(3) A code under this section may—
(a) do any of the things mentioned in section 124C(3) to (5) or section 124D(5)(a) to (g); and
(b) make other provision for the purpose of regulating the technical obligations.
(4) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124J.
(5) OFCOM must—
(a) keep a code under this section under review; and
(b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124J.
(6) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.
(7) Section 403 applies to the power of OFCOM to make an order under this section.
(8) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
124J Contents of code about obligations to limit internet access
(1) The criteria referred to in section 124I(4) are—
(a) that the requirements concerning enforcement and related matters are met in relation to the code (see subsections (2) and (3));
(b) that the requirements concerning subscriber appeals are met in relation to the code (see section 124K);
(c) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M;
(d) that it makes any other provision that the Secretary of State requires it to make;
(e) that the provisions of the code are objectively justifiable in relation to the matters to which it relates;
(f) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;
(g) that those provisions are proportionate to what they are intended to achieve; and
(h) that, in relation to what those provisions are intended to achieve, they are transparent.
(2) The requirements concerning enforcement and related matters are—
(a) that OFCOM have, under the code, the functions of administering and enforcing it, including the function of resolving owner-provider disputes;
(b) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and
(c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.
(3) The provision made concerning enforcement and related matters may also (unless the Secretary of State requires otherwise) include, in particular—
(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 124L(2);
(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's infringement or error in relation to the code or the copyright infringement provisions.
(4) In this section “owner-provider dispute” means a dispute that—
(a) is between persons who are copyright owners or internet service providers; and
(b) relates to an act or omission in relation to a technical obligation or a technical obligations code.
(1) The requirements concerning subscriber appeals are—
(a) for the purposes of section 124E(1)(h), the requirements of subsections (2) to (8); and
(b) for the purposes of section 124J(1)(b), the requirements of subsections (2) to (11).
(2) The requirements of this subsection are—
(a) that the code confers on subscribers the right to bring a subscriber appeal and, in the case of a technical obligations code, a further right of appeal to the First-tier Tribunal;
(b) that there is a person who, under the code, has the function of determining subscriber appeals;
(c) that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM; and
(d) that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned.
(3) The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following—
(a) that the apparent infringement to which the report relates was not an infringement of copyright;
(b) that the report does not relate to the subscriber's IP address at the time of the apparent infringement.
(4) The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code.
(5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done (or, if there is more than one such report, as respects each of them)—
(a) the apparent infringement was an infringement of copyright, and
(b) the report relates to the subscriber's IP address at the time of that infringement.
(6) The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that—
(a) the act constituting the apparent infringement to which the report relates was not done by the subscriber, and
(b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.
(7) The powers of the person determining subscriber appeals must include power—
(a) to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is determined in favour of the subscriber;
(b) to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and
(c) where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber.
(8) The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.
(9) In the case of a technical obligations code, the powers of the person determining subscriber appeals must include power—
(a) on an appeal in relation to a technical measure or proposed technical measure—
(i) to confirm the measure;
(ii) to require the measure not to be taken or to be withdrawn;
(iii) to substitute any other technical measure that the internet service provider has power to take;
(b) to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power;
(c) to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure; and
(d) to remit the decision whether to confirm the technical measure, or any matter relating to that decision, to OFCOM.
(10) In the case of a technical obligations code, the code must make provision—
(a) enabling a determination of a subscriber appeal to be appealed to the First-tier Tribunal, including on grounds that it was based on an error of fact, wrong in law or unreasonable;
(b) giving the First-tier Tribunal, in relation to an appeal to it, the powers mentioned in subsections (7) and (9); and
(c) in relation to recovery of costs awarded by the Tribunal.
(11) In the case of a technical obligations code, the code must include provision to secure that a technical measure is not taken against a subscriber until—
(a) the period for bringing a subscriber appeal, or any further appeal to the First-tier Tribunal, in relation to the proposed measure has ended (or the subscriber has waived the right to appeal); and
(b) any such subscriber appeal or further appeal has been determined, abandoned or otherwise disposed of.
(1) Sections 94 to 96 apply in relation to a contravention of an initial obligation or a technical obligation, or a contravention of an obligation under section 124G(6), as they apply in relation to a contravention of a condition set out under section 45.
(2) The amount of the penalty imposed under section 96 as applied by this section is to be such amount not exceeding £250,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(3) In making that determination OFCOM must have regard to—
(a) any representations made to them by the internet service provider or copyright owner on whom the penalty is imposed;
(b) any steps taken by the provider or owner towards complying with the obligations contraventions of which have been notified to the provider or owner under section 94 (as applied); and
(c) any steps taken by the provider or owner for remedying the consequences of those contraventions.
(4) 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 (2).
(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.