(1) The Secretary of State may by order specify provision that must be included in an initial obligations code or a technical obligations code about payment of contributions towards costs incurred under the copyright infringement provisions.
(2) Any provision specified under subsection (1) must relate to payment of contributions by one or more of the following only—
(a) copyright owners;
(b) internet service providers;
(c) in relation to a subscriber appeal or a further appeal by a subscriber to the First-tier Tribunal, the subscriber.
(3) Provision specified under subsection (1) may relate to, in particular—
(a) payment by a copyright owner of a contribution towards the costs that an internet service provider incurs;
(b) payment by a copyright owner or internet service provider of a contribution towards the costs that OFCOM incur.
(4) Provision specified under subsection (1) may include, in particular—
(a) provision about costs incurred before the provision is included in an initial obligations code or a technical obligations code;
(b) provision for payment in advance of expected costs (and for reimbursement of overpayments where the costs incurred are less than expected);
(c) provision about how costs, expected costs or contributions must be calculated;
(d) other provision about when and how contributions must be paid.
(5) No order is to be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
In sections 124A to 124M and this section—
“apparent infringement”, in relation to a copyright infringement report, means the infringement of copyright that the report states appears to have taken place;
“copyright infringement list” has the meaning given in section 124B(2);
“copyright infringement provisions” means sections 124A to 124M and this section;
“copyright infringement report” has the meaning given in section 124A(3);
“copyright owner” means—
a copyright owner within the meaning of Part 1 of the Copyright, Designs and Patents Act 1988 (see section 173 of that Act); or
someone authorised by that person to act on the person's behalf;
“copyright work” has the same meaning as in Part 1 of the Copyright, Designs and Patents Act 1988 (see section 1(2) of that Act);
“initial obligations” has the meaning given in section 124C(1);
“initial obligations code” has the meaning given in section 124A(2);
“internet access service” means an electronic communications service that—
is provided to a subscriber;
consists entirely or mainly of the provision of access to the internet; and
includes the allocation of an IP address or IP addresses to the subscriber to enable that access;
“internet service provider” means a person who provides an internet access service;
“IP address” means an internet protocol address;
“subscriber”, in relation to an internet access service, means a person who—
receives the service under an agreement between the person and the provider of the service; and
does not receive it as a communications provider;
“subscriber appeal” means—
in relation to an initial obligations code, an appeal by a subscriber on grounds specified in the code in relation to—
the making of a copyright infringement report;
notification under section 124A(4);
the inclusion or proposed inclusion of an entry in a copyright infringement list; or
any other act or omission in relation to an initial obligation or an initial obligations code;
in relation to a technical obligations code, an appeal by a subscriber on grounds specified in the code in relation to—
the proposed taking of a technical measure; or
any other act or omission in relation to a technical obligation or a technical obligations code;
“technical measure” has the meaning given in section 124G(3);
“technical obligation” has the meaning given in section 124G(2);
“technical obligations code” means a code in force under section 124I.
124O Notification of failure in relation to internet domain registry
(1) This section applies where the Secretary of State—
(a) is satisfied that a serious relevant failure in relation to a qualifying internet domain registry is taking place or has taken place, and
(b) wishes to exercise the powers under section 124P or 124R.
(2) The Secretary of State must notify the internet domain registry, specifying the failure and a period during which the registry has the opportunity to make representations to the Secretary of State.
(3) There is a relevant failure in relation to a qualifying internet domain registry if—
(a) the registry, or any of its registrars or end-users, engages in prescribed practices that are unfair or involve the misuse of internet domain names, or
(b) the arrangements made by the registry for dealing with complaints in connection with internet domain names do not comply with prescribed requirements.
(4) A relevant failure is serious, for the purposes of this section, if it has adversely affected or is likely adversely to affect—
(a) the reputation or availability of electronic communications networks or electronic communications services provided in the United Kingdom or a part of the United Kingdom, or
(b) the interests of consumers or members of the public in the United Kingdom or a part of the United Kingdom.
(5) In subsection (3) “prescribed” means prescribed by regulations made by the Secretary of State.
(6) Before making regulations under subsection (3) the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(7) In this section and sections 124P to 124R—
“end-user”, in relation to a qualifying internet domain registry, means a person who has been or wants to be allocated an internet domain name that is or would be included in the register maintained by the registry;
“qualifying internet domain registry” means a relevant body that—
maintains a relevant register of internet domain names, and
operates a computer program or server that forms part of the system that enables the names included in the register to be used to access internet protocol addresses or other information by means of the internet;
“registrar”, in relation to a qualifying internet domain registry, means a person authorised by the registry to act on behalf of end-users in connection with the registration of internet domain names;
“relevant body” means a company formed and registered under the Companies Act 2006 or a limited liability partnership;
“relevant register of internet domain names” means a register of—
the names of second level internet domains that form part of the same UK-related top level internet domain, or
the names of third level internet domains that form part of the same UK-related second level internet domain;
“second level internet domain” means an internet domain indicated by the last two elements of an internet domain name;
“third level internet domain” means an internet domain indicated by the last three elements of an internet domain name;
“top level internet domain” means an internet domain indicated by the last element of an internet domain name.
(8) An internet domain is “UK-related” if, in the opinion of the Secretary of State, the last element of its name is likely to cause users of the internet, or a class of such users, to believe that the domain and its sub-domains are connected with the United Kingdom or a part of the United Kingdom.
124P Appointment of manager of internet domain registry
(1) This section applies where—
(a) the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure,
(b) the period allowed for making representations has expired, and
(c) the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure.
(2) The Secretary of State may by order appoint a manager in respect of the property and affairs of the internet domain registry for the purpose of securing that the registry takes the steps described in subsection (1)(c).
(3) The person appointed may be anyone whom the Secretary of State thinks appropriate.
(4) The appointment of the manager does not affect—
(a) a right of a person to appoint a receiver of the registry's property, or
(b) the rights of a receiver appointed by a person other than the Secretary of State.
(5) The Secretary of State must—
(a) keep the order under review, and
(b) if appropriate, discharge all or part of the order.
(6) The Secretary of State must discharge the order on the appointment of a person to act as administrative receiver, administrator, provisional liquidator or liquidator of the registry.
(7) The Secretary of State must discharge the order before the end of the period of 2 years beginning with the day on which it was made (but this does not prevent the Secretary of State from making a further order in the same or similar terms).
(8) When discharging an order under this section, the Secretary of State may make savings and transitional provision.
(9) The Secretary of State must send a copy of an order made under this section to the registry as soon as practicable after it is made.
(10) In subsection (4), “receiver” includes a manager (other than a manager appointed by the registry) and a person who is appointed as both receiver and manager.
(11) In subsection (6)—
“administrative receiver” means an administrative receiver within the meaning of section 251 of the Insolvency Act 1986 or Article 5(1) of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19));
“administrator” means a person appointed to manage the affairs, business and property of the registry under Schedule B1 to that Act or Schedule B1 to that Order.
(1) An order under section 124P may make provision about the functions to be exercised by, and the powers of, the manager.
(2) The order may, in particular—
(a) provide for the manager to have such of the functions of the registry's directors as are specified in the order (including functions exercisable only by a particular director or class of directors), and
(b) provide for one or more of the registry's directors to be prevented from exercising any of those functions.
(3) The order may make provision about the remuneration of the manager, including in particular—
(a) provision for the amount of the remuneration to be determined by the Secretary of State, and
(b) provision for the remuneration to be payable from the property of the registry.
(4) In carrying out the functions conferred by the order, the manager acts as the registry's agent.
(5) The Secretary of State may apply to the court for directions in relation to any matter arising in connection with the functions or powers of the manager (and the costs of the application are to be paid by the registry).
(6) On an application under subsection (5) the court may give such directions or make such orders as it thinks fit.
(7) In this section “the court” means—
(a) in England and Wales, the High Court or the county court,
(b) in Scotland, the Court of Session or the sheriff, and
(c) in Northern Ireland, the High Court.
(8) Where the registry is a limited liability partnership, this section applies as if references to a director of the registry were references to a member of the limited liability partnership.
124R Application to court to alter constitution of internet domain registry
(1) This section applies where—
(a) the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure,
(b) the period allowed for making representations has expired, and
(c) the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure.
(2) The Secretary of State may apply to the court (as defined in section 124Q) for an order under this section.
(3) The court may make an order—
(a) making alterations of the registry's constitution, and
(b) requiring the registry not to make any alterations, or any specified alterations, of its constitution without the leave of the court.
(4) An order under this section may contain only such provision as the court considers appropriate for securing that the registry remedies the failure specified in the notification under section 124O.
(5) In this section—
“constitution” means, in the case of a company, the articles of association and, in the case of a limited liability partnership, the limited liability partnership agreement;
“limited liability partnership agreement” means the agreement or agreements, whether express or implied, between the members of a limited liability partnership, and between the partnership and the members of the partnership, determining—
the mutual rights and duties of the members, and
their rights and duties in relation to the partnership.
124S Mobile phone providers' duty to enable billing limits to be applied
(1) The provider of a mobile phone service must not enter into a contract to provide the service unless the customer has been given an opportunity to specify a billing limit in the contract.
(2) In relation to a contract to provide a mobile phone service—
(a) a billing limit is a limit on the amount the customer may be charged for provision of the service in respect of each billing period, and
(b) a billing period is one of successive periods specified in the contract and together making up the period for which the contract remains in force.
(3) A contract to provide a mobile phone service must provide for the customer on reasonable notice at any time—
(a) to specify a billing limit if none is specified for the time being,
(b) to amend or remove a limit in respect of all billing periods or a specified billing period.
(4) In any billing period the provider must—
(a) so far as practicable, notify the customer in reasonable time if a limit is likely to be reached before the end of the period, and
(b) notify the customer as soon as practicable if a limit is reached before the end of the period.
(5) A limit may be exceeded in relation to a billing period only if the customer agrees after a notification under subsection (4)(a) or (b).
(6) If the provider continues to provide the service after a limit is reached, the customer's use of the service does not constitute agreement to the limit being exceeded.
(7) The provider must give the customer confirmation in writing of—
(a) the decision made by the customer in accordance with subsection (1),
(b) any decision of the customer under provision made in accordance with subsection (3), and
(c) any agreement by the customer in accordance with subsection (5).
(8) This section applies to agreeing to extend a contract as it applies to entering into a contract, and in that case the reference in subsection (2)(b) to the period for which the contract remains in force is a reference to the period of the extension.
(9) Nothing in this section affects a provider's duty to comply with requirements to enable calls to emergency services.
(10) In this section—
“customer” does not include a person who is a customer as a communications provider;
“mobile phone service” means an electronic communications service which is provided in the course of a business wholly or mainly so as to be available to members of the public for the purpose of communicating with others, or accessing data, by mobile phone.
124T Enforcement of duty to enable billing limits to be applied
(1) Sections 96A to 96C apply in relation to a contravention of a requirement under section 124S as they apply in relation to a contravention of a condition set under section 45, with the following modifications.
(2) Section 96A(2)(f) and (g) (OFCOM directions) do not apply.
(3) Section 96A(5) to (7) (action under the Competition Act 1998) do not apply.
(4) The amount of a penalty imposed under sections 96A to 96C, as applied by this section, other than a penalty falling within section 96B(4), is to be such amount not exceeding £2 million as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
124U Rights of end-users in relation to contract termination
(1) Where an end-user has (whether under an enactment or at common law) the right to terminate a contract for a public electronic communications service before the end of the agreed contract period—
(a) no compensation is to be due by the end-user, except compensation for any retained terminal equipment;
(b) if the end-user chooses to retain terminal equipment to which the contract relates—
(i) the compensation payable for the equipment is not to exceed the amount determined under subsection (2); and
(ii) on payment of the compensation, the provider must lift any conditions restricting the use of the terminal equipment on an electronic communications network of another communications provider.
(2) The maximum amount of compensation is whichever is the lesser of the following—
(a) the remaining part of any fee for the service until the end of the agreed contract period; or
(b) a proportion of the value of the terminal equipment, as agreed at the time of the conclusion of the contract, corresponding to the proportion of the agreed contract period that remains unexpired.
(3) Where the public electronic communications service is a transmission service involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction, subsection (1) does not apply unless the end-user is a qualifying end-user, as defined by section 51(9).
(4) Where the contract referred to in subsection (1) is, or is included in, a bundled contract, subsection (1) applies to all the elements of the bundled contract, unless the end-user—
(a) falls within paragraph (b) or (c) of the definition of “qualifying end-user” in section 51(9); and
(b) has waived the rights conferred by this subsection.
(1) Subsection (2) applies where—
(a) an individual, acting for purposes other than those of a business, has entered into a bundled contract;
(b) the individual has (whether under an enactment or at common law) the right to terminate any element of the bundled contract before the end of the agreed contract period because of a lack of conformity with the contract or a failure to supply.
(2) The individual has the right to terminate all elements of the bundled contract.
124W Enforcement of obligations of providers under sections 124U and 124V
(1) Sections 96A to 96C apply in relation to a contravention by the provider of a public electronic communications service of the requirements imposed on the provider by sections 124U and 124V as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition, but with the following modifications.
(2) Section 96A(2)(f) and (g) (OFCOM directions) do not apply.
(3) Section 96A(5) to (7) (action under the Competition Act 1998) do not apply.
(4) The amount of a penalty imposed under sections 96A to 96C, as applied by this section, other than a penalty falling within section 96B(4), is to be such amount not exceeding £2 million as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(1) A person who—
(a) dishonestly obtains an electronic communications service, and
(b) does so with intent to avoid payment of a charge applicable to the provision of that service,
is guilty of an offence.
(2) It is not an offence under this section to obtain a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly obtaining a broadcasting ... service provided from a place in the UK).
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
126 Possession or supply of apparatus etc. for contravening s. 125
(1) A person is guilty of an offence if, with an intention falling within subsection (3), he has in his possession or under his control anything that may be used—
(a) for obtaining an electronic communications service; or
(b) in connection with obtaining such a service.
(2) A person is guilty of an offence if—
(a) he supplies or offers to supply anything which may be used as mentioned in subsection (1); and
(b) he knows or believes that the intentions in relation to that thing of the person to whom it is supplied or offered fall within subsection (3).
(3) A person’s intentions fall within this subsection if he intends—
(a) to use the thing to obtain an electronic communications service dishonestly;
(b) to use the thing for a purpose connected with the dishonest obtaining of such a service;
(c) dishonestly to allow the thing to be used to obtain such a service; or
(d) to allow the thing to be used for a purpose connected with the dishonest obtaining of such a service.
(4) An intention does not fall within subsection (3) if it relates exclusively to the obtaining of a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48).
(5) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; and
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.
(6) In this section, references, in the case of a thing used for recording data, to the use of that thing include references to the use of data recorded by it.
127 Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).
(5) An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and
(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.
(6) Summary proceedings for an offence under this section may be commenced in Scotland—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and
(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,
and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.
(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.
128 Notification of misuse of networks and services
(1) Where OFCOM determine that there are reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications services, they may give that person 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 use that OFCOM consider constitutes persistent misuse; and
(c) specifies the period during which the person notified has an opportunity of making representations about the matters notified.
(3) That period must not be less than the following—
(a) in an urgent case, seven days; and
(b) in any other case, one month.
(4) A case is an urgent case for the purposes of subsection (3) if OFCOM consider—
(a) that the misuse in question is continuing; and
(b) that the harm it causes makes it necessary for it to be stopped as soon as possible.
(5) For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—
(a) the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or
(b) he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.
(6) For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—
(a) a pattern of behaviour or practice; or
(b) recklessness as to whether persons suffer annoyance, inconvenience or anxiety.
(7) For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—
(a) that the misuse was in relation to a network on some occasions and in relation to a service on others;
(b) that different networks or services were involved on different occasions; and
(c) that the persons who were or were likely to suffer annoyance inconvenience or anxiety were different on different occasions.
(8) If he considers that appropriate alternative means of dealing with it exists, the Secretary of State may by order provide that a use of a description specified in the order is not to be treated for the purposes of this Chapter as a misuse of an electronic communications network or electronic communications service.
129 Enforcement notifications for stopping persistent misuse
(1) This section applies where—
(a) a person (“the notified misuser”) has been given a notification under section 128;
(b) OFCOM have allowed the notified misuser an opportunity of making representations about the matters notified; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may give the notified misuser an enforcement notification if they are satisfied—
(a) that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and
(b) that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—
(i) securing that his misuse is brought to an end and is not repeated; and
(ii) remedying the consequences of the notified misuse.
(3) An enforcement notification is a notification which imposes a requirement on the notified misuser to take all such steps for—
(a) securing that his misuse is brought to an end and is not repeated, and
(b) remedying the consequences of the notified misuse,
as may be specified in the notification.
(4) A decision of OFCOM to give an enforcement notification to a person must fix a reasonable period for the taking of the steps required by the notification.
(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.
(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) References in this section to remedying the consequences of misuse include references to paying an amount to a person—
(a) by way of compensation for loss or damage suffered by that person; or
(b) in respect of annoyance, inconvenience or anxiety to which he has been put.
(1) This section applies (in addition to section 129) where—
(a) a person (“the notified misuser”) has been given a notification under section 128;
(b) OFCOM have allowed the notified misuser 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 impose a penalty on the notified misuser if he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service.
(3) OFCOM may also impose a penalty on the notified misuser if he has contravened a requirement of an enforcement notification given in respect of the notified misuse.
(4) The amount of a penalty imposed is to be such amount not exceeding £2,000,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the misuse in respect of which it is imposed.
(5) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified misuser;
(b) any steps taken by him for securing that his misuse is brought to an end and is not repeated; and
(c) any steps taken by him for remedying the consequences of the notified misuse.
(6) Where OFCOM impose a penalty on a person under this section, they shall—
(a) notify the person penalised; 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) It is to be possible for a person to be both liable for an offence under sections 125 to 127 and to have a penalty imposed on him under this section in respect of the same conduct.
(9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (4).
(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to the exercise of their powers under sections 128 to 130.
(2) OFCOM may from time to time revise that statement as they think fit.
(3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 128 to 130, to have regard to the statement for the time being in force under this section.
132 Powers to require suspension or restriction of a provider’s entitlement
(1) If the Secretary of State has reasonable grounds for believing that it is necessary to do so—
(a) to protect the public from any threat to public safety or public health, or
(b) in the interests of national security,
he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.
(2) OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.
(3) A direction under this section is—
(a) a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b) a direction that that entitlement is restricted in the respects set out in the direction.
(4) A direction under subsection (3)—
(a) must specify the networks, services and facilities to which it relates; and
(b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.
(5) A direction under subsection (3)—
(a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and
(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the relevant provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.
(6) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the relevant provider’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(7) Where OFCOM give a direction under subsection (3), they shall, as soon as practicable after doing so, provide that person with an opportunity of—
(a) making representations about the effect of the direction; and
(b) proposing steps for remedying the situation.
(8) If OFCOM consider it appropriate to do so (whether in consequence of any representations or proposals made to them under subsection (3) or otherwise), they may, without revoking it, at any time modify the terms of a direction under subsection (3) in such manner as they consider appropriate.
(9) If the Secretary of State considers it appropriate to do so, he may, by a direction to OFCOM, require them to revoke a direction under subsection (3).
(10) Where OFCOM modify or revoke a direction they have given under subsection (3), they may do so—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.
(11) It shall be the duty of OFCOM to comply with—
(a) a requirement under subsection (9) to revoke a direction; and
(b) a requirement contained in that direction as to how they should exercise their powers under subsection (10) in the case of the required revocation.
(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—
(a) while his entitlement to do so is suspended by a direction under section 132; or
(b) in contravention of a restriction contained in such a direction.
(2) A person guilty of an offence under subsection (1) shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(3) The duty of a person to comply with a condition of a direction under section 132 shall be a duty owed to every person who may be affected by a contravention of the condition.
(4) Where a duty is owed by virtue of subsection (3) to a person—
(a) a breach of the duty that causes that person to sustain loss or damage, and
(b) an act which—
(i) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and
(ii) is done wholly or partly for achieving that result,
shall be actionable at the suit or instance of that person.
(5) In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.
(6) Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45 , other than SMP apparatus conditions .
(1) This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of—
(a) the person from whom he obtains electronic communications services, or particular electronic communications services, or
(b) the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,
is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.
(2) This section also applies where—
(a) provision contained in a lease for a year or more has the effect of imposing any other prohibition or restriction on the lessee with respect to an electronic communications matter; or
(b) provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.
(3) A provision falling within subsection (1) shall have effect—
(a) as if the prohibition or restriction applied only where the lessor, licensor or other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and
(b) as if the lessor, licensor or other party were required not to withhold that consent unreasonably.
(4) A provision falling within subsection (2)(a) or (b) shall have effect—
(a) in relation to things done inside a building occupied by the lessee under the lease, or
(b) for purposes connected with the provision to the lessee of an electronic communications service,
as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.
(5) Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent—
(a) in relation to an electronic communications matter, or
(b) to the obtaining by the occupier of premises of an electronic communications service from or through a particular person,
the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.
(6) OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.
(7) References in this section to electronic communications matters are references to—
(a) the provision of an electronic communications network or electronic communications service;
(b) the connection of electronic communications apparatus to a relevant electronic communications network or of any such network to another; and
(c) the installation, maintenance, adjustment, repair, alteration or use for purposes connected with the provision of such a network or service of electronic communications apparatus.
(8) In this section—
“alteration” has the same meaning as in the electronic communications code;
“lease” includes—
a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and
in Scotland, a sub-lease and an agreement to grant a sub-lease,
and “lessor” and “lessee” are to be construed accordingly;
“lease”—
in relation to England and Wales and Northern Ireland, includes—
any head lease, sub-lease or underlease,
any tenancy (including a sub-tenancy), and
any agreement to grant any such lease or tenancy;
in relation to Scotland, includes any sub-lease and any agreement to grant a sub-lease,
and “lessor” and “lessee” are to be construed accordingly;
“relevant electronic communications network” means—
a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or
an electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.
(9) This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.
(10) This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).
(11) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.
(12) Section 403 applies to the powers of OFCOM to make orders under this section.
(13) 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) OFCOM must prepare reports in accordance with subsections (2) and (3) and each report must deal with—
(a) the electronic communications networks matters listed in section 134B(1), and
(b) the electronic communications services matters listed in section 134B(2).
(2) The first report must—
(a) relate to the position on a day specified in the report which falls within the period of 12 months beginning with the day on which this section comes into force, and
(b) be sent to the Secretary of State by OFCOM not more than 2 months after the specified day.
(3) A further report must—
(a) be prepared for each relevant period, and
(b) be sent to the Secretary of State by OFCOM as soon as practicable after the end of the relevant period.
(4) “Relevant period” means—
(a) the period of 3 years beginning with the day specified in the first report, and
(b) each subsequent period beginning with the end of the previous period and ending at such time not more than 3 years after the end of the previous period as OFCOM may determine.
(5) Where there is a significant change in connection with a matter listed in section 134B(1) or (2) and OFCOM consider that the change should be brought to the attention of the Secretary of State, OFCOM must—
(a) prepare a report on the change, and
(b) send it to the Secretary of State as soon as practicable.
(6) For the purposes of subsection (5), a change is significant if OFCOM consider that it has, or is likely to have, a significant adverse impact on—
(a) persons carrying on business in the United Kingdom or a part of the United Kingdom, or
(b) the general public in the United Kingdom or a part of the United Kingdom.
(7) 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.
(8) OFCOM may exclude information from a report when it is published under subsection (7) 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.
134AA Additional OFCOM reports on infrastructure etc
(1) OFCOM may prepare reports dealing with—
(a) any of the electronic communications network matters listed in section 134B(1);
(b) any of the electronic communications services matters listed in section 134B(2).
(2) OFCOM may publish a report under this section 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.
(3) Before publishing a report under this section OFCOM must consider—
(a) whether any of the information to be contained in it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000, and
(b) if so, whether that information should be excluded from the report.
(4) This section does not affect OFCOM's duty to prepare reports under section 134A.
134AB Publication of information required for purpose of preparing reports
(1) OFCOM may publish—
(a) any relevant section 135 information, and
(b) any information derived from relevant section 135 information.
(2) Before publishing information under this section OFCOM must consider—
(a) whether any of the information that they propose to publish is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000, and
(b) if so, whether that information should be published.
(3) In this section “relevant section 135 information” means information required by OFCOM under section 135 for the purpose of preparing a report under section 134A or 134AA.
(1) The Secretary of State must have regard to reports received from OFCOM under section 134A, or published by OFCOM under section 134AA, when exercising functions for any of the relevant purposes.
(2) The relevant purposes are—
(a) the allocation of public funds for the bringing into operation of electronic communications networks;
(b) the design of national broadband plans;
(c) verifying the availability of services to which universal service conditions apply.
(3) Any other public authority must have regard to reports published by OFCOM under section 134AA when exercising functions for either of the purposes specified in subsection (2)(a) and (b).
(1) For the purposes of sections 134A and 134AA, the electronic communications networks matters are—
(a) the different types of electronic communications network provided in the United Kingdom (“UK networks”),
(b) the geographic coverage of the different UK networks,
(c) the proportion of the population covered by the different UK networks,
(d) the extent to which UK networks share infrastructure,
(e) the capacity of the different UK networks,
(f) the extent to which the providers of the different UK networks allow other communications providers to use their networks to provide services,
(fa) the quality of service available on different UK networks, by reference to such parameters as OFCOM consider appropriate,
(g) the amount of time for which the different UK networks are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability,
(h) the preparations made by providers of UK networks for responding to an emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency,...
(ha) the extent to which providers of public UK networks are complying with the duties imposed on them by or under sections 105A to 105D,
(i) the standard of the different UK networks in comparison with electronic communications networks provided in a range of other countries, having regard, in particular, to their coverage and capacity, and
(j) any proposals that providers of UK networks may at any time have to do any of the following within the next 3 years—
(i) to bring into operation a new very high capacity network, other than a mobile network, or
(ii) to extend or upgrade any part of a fixed line network or its equivalent, such as a fixed wireless access network, so as to provide a download speed of at least 100 megabits per second.
(2) For the purposes of sections 134A and 134AA, the electronic communications services matters are—
(a) the use of the electromagnetic spectrum for wireless telegraphy in the United Kingdom,
(b) the different types of electronic communications service provided in the United Kingdom (“UK services”),
(c) the geographic coverage of the different UK services,
(d) the proportion of the population covered by the different UK services,
(e) the amount of time for which the different UK services are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability,
(f) the preparations made by providers of UK services for responding to an emergency, including preparations for restoring normal operation of UK services disrupted by the emergency,
(fa) the extent to which providers of public UK services are complying with the duties imposed on them by or under sections 105A to 105D, and
(g) the standard of the different UK services in comparison with electronic communications services provided in a range of other countries.
(3) The preparations referred to in subsections (1)(h) and (2)(f) include—
(a) the steps taken to assess the risks of different types of emergency occurring,
(b) the steps taken to reduce or remove those risks, and
(c) the testing of proposed responses to different types of emergency.
(4) In a report under section 134A or 134AA, OFCOM are required to include only information about, and analysis of, such networks, services and providers as they consider appropriate.
(5) In this section “emergency” means an event or situation that seriously disrupts a UK network or UK service.
(1) OFCOM must, if requested to do so by the Secretary of State—
(a) prepare a report on matters specified by the Secretary of State relating to internet domain names, and
(b) send the report to the Secretary of State as soon as practicable.
(2) The specified matters may, in particular, include matters relating to—
(a) the allocation and registration of internet domain names, and
(b) the misuse of internet domain names.
(3) 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.
(4) OFCOM may exclude information from a report when it is published under subsection (3) 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) OFCOM may, in the interest of the end-users of public electronic communications services, carry out comparative overviews of the quality and prices of such services.
(2) OFCOM may publish a comparative overview carried out under this section 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.
135 Information required for purposes of certain OFCOM functions
(1) OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under—
(a) section 14(1),
(b) section 26, so far as relating to matters in relation to which they have functions under this Chapter, or
(c) this Chapter.
(2) The persons falling within this subsection are—
(a) a communications provider;
(b) a person who has been a communications provider;
(c) a person who makes, or has made, any associated facilities available to others;
(d) a person, other than a communications provider, to whom a universal service condition applies or has applied;
(e) a person who supplies electronic communications apparatus;
(f) a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.
(g) a person who provides or has provided a number-independent interpersonal communications service and appears to OFCOM to have information relevant to their functions under section 14(1).
(3) The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—
(a) ascertaining whether a contravention of a condition or other requirement set or imposed by or under this Chapter has occurred or is occurring;
(b) ascertaining or verifying the charges payable by a person under section 38;
(c) ascertaining whether a provision of a condition set under section 45 which is for the time being in force continues to be effective for the purpose for which it was made;
(d) ascertaining or verifying amounts payable by virtue of a condition falling within section 51(1)(d);
(e) making a designation in accordance with regulations made under section 66;
(f) carrying out a review under section 66 , 70 or 72A;
(fa) ascertaining whether a commitment which is made binding by a commitments decision continues to be effective for the purpose for which it was made binding under section 93A(8);
(g) identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter;
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) considering a matter in exercise of that duty;
(iza) carrying out an assessment under section 105N;
(izb) preparing a report under section 105Z;
(izc) assessing the risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service;
(izd) preparing a report under section 105Z12;
(ia) preparing a report under section 124F;
(ib) carrying out an assessment, taking steps or providing a report under section 124G;
(ic) preparing a report under section 134A;
(ica) preparing a report under section 134AA;
(id) preparing a report under section 134C;
(ie) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(if) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ig) identifying electronic communications apparatus that is suitable for shared use;
(j) statistical purposes connected with the carrying out of any of OFCOM’s functions under this Chapter.
(3A) The descriptions of information that a person may be required to provide under subsection (1) include, in particular—
(za) information concerning future developments of a public electronic communications network or public electronic communications service that could have an impact on the security of the network or service,
(a) information concerning future developments of an electronic communications network or electronic communications service that could have an impact on the wholesale services made available by the person to competitors, and
(b) if a market power determination made in relation to a wholesale market is in force in the person’s case, accounting data relating to any retail market associated with the wholesale market.
(3B) In subsection (2)(g), “number-independent interpersonal communications service” means an interpersonal communications service, as defined by section 32A(2), other than—
(a) a number-based interpersonal communications service; or
(b) a service where the interpersonal and interactive communication is merely a minor ancillary feature that is intrinsically linked to another service.
(3C) OFCOM may require a person falling within subsection (2)—
(a) to produce, generate or obtain security information for the purpose of providing it under subsection (1);
(b) to collect or retain security 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 security information to be provided under subsection (1).
(3D) In subsection (3C) “security information” means information OFCOM consider necessary for the purpose of carrying out their functions under sections 105L to 105Z.
(4) A person must comply with a requirement imposed under this section in such manner and within such reasonable period as may be specified by OFCOM.
(5) The powers in this section are subject to the limitations in section 137.
(1) OFCOM may require—
(a) a communications provider, or
(b) a person who makes associated facilities available to others,
to provide OFCOM with all such information as they consider necessary for the purpose of carrying out comparative overviews under section 134D .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) OFCOM may also require—
(a) a communications provider, or
(b) a person who makes associated facilities available to others,
to provide them, for use for such statistical purposes as they think fit, with information relating to any electronic communications network, electronic communications service or associated facilities.
(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.
(5) The powers in this section are subject to the limitations in section 137.
137 Restrictions on imposing information requirements
(1) This section limits the purposes for which, and manner in which, requirements may be imposed under sections 135 and 136.
(2) OFCOM are not to require the provision of information for the purpose of ascertaining whether a contravention of a general condition has occurred, or is occurring, unless—
(a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint;
(b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the general condition in question has been complied with;
(c) the condition in question is one which OFCOM have reason to suspect is one that has been or is being contravened; ...
(d) the condition in question is one falling within section 51(1)(d) ; or
(e) the condition in question is one relating to the effective and efficient use of telephone numbers.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) OFCOM are not to require the provision of information under section 135 or 136 except—
(a) by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it; and
(b) where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions.
(4) The reasons for requiring information for statistical purposes under section 135 or 136 must set out the statistical purposes for which the information is required.
(5) Except in the case of a demand made in the manner authorised by subsection (6), a demand for information required under section 135 or 136 must be contained in a notice served on the person from whom the information is required.
(6) In the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under section 38, the demand may—
(a) be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who are described in the demand as the persons from whom the information is required; and
(b) take the form of a general demand for a person so described to provide information when specified conditions relevant to his liability to such charges are satisfied in his case.
(7) OFCOM are not to impose a requirement on a person under section 135(3C) except by a notice served on the person that sets out the requirement and OFCOM’s reasons for imposing it.
137A Information required from communications providers
(1) OFCOM may require a communications provider—
(a) to publish any information held by the provider, or
(b) to provide any such information to OFCOM for publication by OFCOM.
(2) The information that OFCOM may require the communications provider to publish or provide under subsection (1) includes information that OFCOM require the provider to produce, generate or obtain for that purpose.
(3) For that purpose OFCOM may, in particular, require the communications provider—
(a) to collect or retain any information that the provider would not otherwise collect or retain,
(b) to process, collate or analyse any information held by the provider, or
(c) to answer any questions.
(4) The power conferred by this section may be exercised only—
(a) in connection with OFCOM's functions—
(i) under Part 1, so far as relating to electronic communications, or
(ii) under this Chapter, and
(b) in such a way as is proportionate to the use to which the information is to be put in connection with those functions.
(5) The power conferred by this section is to be exercised by a demand, contained in a notice served on the communications provider, that—
(a) describes the information required to be published or provided, and
(b) sets out OFCOM's reasons for requiring it to be published or provided.
(6) Before serving the notice on the communications provider, OFCOM must—
(a) serve a draft of the notice on the provider and inform the provider of the period for making representations, and
(b) consider any representations made by the provider within that period which—
(i) identify restrictions on the disclosure or publication of information that would or might prevent the provider from complying with the notice, or
(ii) otherwise relate to the practicability of complying with it.
(7) The communications provider must publish or provide the information required by the notice in such manner and form, in accordance with such other requirements, and within such reasonable period, as may be specified by OFCOM.
(8) Where OFCOM publish anything provided to them pursuant to subsection (1)(b) they must do so in such manner and form as they consider appropriate.
(1) In exercising functions under section 137A, OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (2) and (3).
(2) A matter is confidential under this subsection if—
(a) it relates specifically to the affairs of a particular body, and
(b) publication of that matter would or might, in OFCOM's opinion, seriously and prejudicially affect the interests of that body.
(3) A matter is confidential under this subsection if—
(a) it relates to the private affairs of an individual, and
(b) publication of that matter would or might, in OFCOM's opinion, seriously and prejudicially affect the interests of that individual.
138 Notification of contravention of information requirements
(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 135, 136 or 137A, they may give that person 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 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 what the person must do in order to comply with the requirement;
(e) specifies any penalty which OFCOM are minded to impose in accordance with section 139; and
(f) where the contravention is serious, specifies any direction which OFCOM are minded to give under section 140.
(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.
(9A) OFCOM may not give a person a notification under this section in respect of a contravention of a requirement imposed under section 135(3)(ig) if the information required was previously provided by the person to OFCOM within the period of 6 months ending with the day on which the requirement was imposed.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
139 Penalties for contravention of information requirements
(1) This section applies where a person is given a notification under section 138 which specifies a proposed penalty.
(2) OFCOM may specify a penalty if—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention.
(3) Where a notification under section 138 relates to more than one contravention, a separate penalty may be specified in respect of each contravention.
(4) Where such a 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.
(4A) 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 139A(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.
(4B) The amount of a penalty under subsection (4A) is to be such amount not exceeding £500 per day as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(5) The amount of any other penalty notified under this section is to be such amount not exceeding £2,000,000 as OFCOM determine to be both—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (5).
(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(1) This section applies where—
(a) a person is given a notification under section 138 which specifies a proposed penalty; and
(b) the condition in subsection (2) or (3) is met.
(2) The condition in this subsection is that—
(a) the proposed penalty is in respect of a contravention of a requirement to provide information under section 135; and
(b) the demand for the information contains a statement that OFCOM consider the information to be necessary for the purpose of—
(i) carrying out any of their functions under sections 105L to 105Z;
(ii) preparing a report under section 105Z12.
(3) The condition in this subsection is that the proposed penalty is in respect of a contravention of a requirement imposed under subsection (3C) of section 135.
(4) Section 139 applies in relation to the proposed penalty as if—
(a) in subsection (4B), the maximum penalty specified were £50,000 per day;
(b) in subsection (5), the maximum penalty specified were £10 million.
(5) The Secretary of State may by regulations amend this section so as to make different provision as to the maximum penalty applying under section 139(4B) or (5).
(6) No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
139A Enforcement of notification under section 138
(1) This section applies where—
(a) a person has been given a notification under section 138;
(b) OFCOM have allowed the person an opportunity to make representations about the matters notified; and
(c) the period allowed for the making of representations has expired.
(2) OFCOM may—
(a) give the person a decision (a “confirmation decision”) confirming the imposition of requirements on the person, or the giving of a direction to the person, or both, in accordance with the notification under section 138; or
(b) inform the person that they are satisfied with the person’s representations and that no further action will be taken.
(3) OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a requirement notified under section 138.
(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 a requirement notified under section 138(2)(d), or may specify a period within which the person must comply with the requirement; and
(d) may require the person to pay—
(i) the penalty specified in the notification under section 138, 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 is the duty of the person to comply with any requirement imposed by a confirmation decision.
(6) That duty is 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; 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 138 with respect to a contravention by a person (“P”) of a requirement imposed under section 135 or 136;
(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 give P a direction—
(a) that the entitlement of P to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b) that that entitlement is restricted in the respects set out in the direction.
(4) Subsections (3) to (6) of section 140 apply in relation to a direction under subsection (3) as they apply in relation to a direction under section 140.
(1) As soon as reasonably practicable after giving a direction under section 139B(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 deciding whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.
140 Suspending service provision for information contraventions
(1) OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—
(a) that he is or has been in serious or repeated contravention of requirements imposed under sections 135, 136 and 137A, or any or either of them;
(b) the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM’s functions in relation to SMP apparatus conditions;
(c) in the case of a repeated contravention, that an attempt, by the imposition of penalties or the giving of notifications under section 138 and confirmation decisions under section 139A, or both, or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and
(d) that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.
(2) A direction under this section is—
(a) a direction that the entitlement of the contravening provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b) a direction that that entitlement is restricted in the respects set out in the direction.
(3) A direction under this section—
(a) must specify the networks, services and facilities to which it relates; and
(b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.
(4) 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.
(5) 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.
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of any 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 networks, services or facilities, or parts of a network, service or facility, as they may determine.
(7) For the purposes of this section there are repeated contraventions by a person of requirements imposed under sections 135, 136 and 137A, or any of them, to the extent that—
(a) in the case of a previous notification of a contravention given to that person under section 138, OFCOM have given a confirmation decision to that person under section 139A(2) in respect of the contravention; and
(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 numbering conditions;
and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements or of requirements under different sections.