32 Meaning of electronic communications networks and services
(1) In this Act “electronic communications network” means—
(a) a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and
(b) such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—
(i) apparatus comprised in the system;
(ii) apparatus used for the switching or routing of the signals; ...
(iii) software and stored data; and
(iv) (except for the purposes of sections 125 to 127) other resources, including network elements which are not active.
(2) In this Act “electronic communications service” means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service.
(2A) Those types of service are—
(a) an internet access service;
(b) a number-based interpersonal communications service; and
(c) any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting.
(2B) In subsection (2A)(a) “internet access service” means a service that provides access to the internet and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used.
(3) In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—
(a) making the provision of that network or service possible;
(b) making possible the provision of other services provided by means of that network or service; or
(c) supporting the provision of such other services.
(4) In this Act—
(a) references to the provision of an electronic communications network include references to its establishment, maintenance or operation;
(b) references, where one or more persons are employed or engaged to provide the network or service under the direction or control of another person, to the person by whom an electronic communications network or electronic communications service is provided are confined to references to that other person; and
(c) references, where one or more persons are employed or engaged to make facilities available under the direction or control of another person, to the person by whom any associated facilities are made available are confined to references to that other person.
(5) Paragraphs (a) and (b) of subsection (4) apply in relation to references in subsection (1) to the provision of a transmission system as they apply in relation to references in this Act to the provision of an electronic communications network.
(6) The reference in subsection (1) to a transmission system includes a reference to a transmission system consisting of no more than a transmitter used for the conveyance of signals.
(7) In subsection (2) “a content service” means so much of any service as consists in one or both of the following—
(a) the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;
(b) the exercise of editorial control over the contents of signals conveyed by means of a such a network.
(8) In this section references to the conveyance of signals include references to the transmission or routing of signals or of parts of signals and to the broadcasting of signals for general reception.
(9) For the purposes of this section the cases in which software and stored data are to be taken as being used for a particular purpose include cases in which they—
(a) have been installed or stored in order to be used for that purpose; and
(b) are available to be so used.
(10) In this section “signal” includes—
(a) anything comprising speech, music, sounds, visual images or communications or data of any description; and
(b) signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus.
32A Meaning of number-based interpersonal communications service
(1) In this Chapter “number-based interpersonal communications service” means an interpersonal communications service which—
(a) connects with publicly assigned numbering resources, namely a number or numbers in a national or international numbering plan, or
(b) enables communication with a number or numbers in a national or international numbering plan.
(2) In subsection (1), “interpersonal communications service” means a service which enables direct interpersonal and interactive exchange of information by means of electronic communications networks between a finite number of persons, where the persons initiating or participating in the communication determine its recipient.
(1) A person shall not—
(a) provide a designated electronic communications network,
(b) provide a designated electronic communications service, or
(c) make available a designated associated facility,
unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.
(2) An electronic communications network, electronic communications service or associated facility is designated for the purposes of this section if it is of a description of networks, services or facilities that is for the time being designated by OFCOM as a description of networks, services or facilities for which notification under this section is required.
(3) A person who has given a notification for the purposes of subsection (1) must, before—
(a) providing or making available the notified network, service or facility with any significant differences, or
(b) ceasing to provide it or to make it available,
give a notification to OFCOM of the differences or (as the case may be) of his intention to cease to provide the network or service or to make the facility available.
(4) A notification for the purposes of this section must—
(a) be sent to OFCOM in such manner as OFCOM may require; and
(b) contain all such information as OFCOM may require.
(5) The only information OFCOM may require a notification to contain is—
(a) a declaration of the relevant proposal of the person giving the notification, including a short description of the network, service or facility;
(b) the time when it is intended that effect should be given to the relevant proposal;
(c) particulars identifying the person giving the notification, including the person’s legal status and, in the case of a body corporate, details of its incorporation;
(ca) the address of the person’s main establishment and, if that is outside the United Kingdom, of any secondary establishment in the United Kingdom;
(cb) the person’s website address, where applicable, associated with the provision of electronic communications networks or services;
(d) particulars identifying one or more persons with addresses in the United Kingdom who, for the purposes of matters relating to the notified network, service or facility, are authorised to accept service at an address in the United Kingdom on behalf of the person giving the notification;
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) and (d).
(6) The declaration of the relevant proposal that may be required under subsection (5) is whichever of the following is appropriate in the case of the person giving the notification—
(a) a declaration of his proposal to provide the network or service described in the notification or to make available the facility so described;
(b) a declaration of his proposal to make the modifications that are so described of the network, service or facility specified in the notification; or
(c) a declaration of his proposal to cease to provide the network or service so specified or to cease to make available the facility so specified.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) The reference in subsection (3) to providing or making available a notified network, service or facility with significant differences is a reference to continuing to provide it, or to make it available, after a change in whatever falling within subsection (5)(a) to (f) was last notified to OFCOM under this section.
(10) References in this section to accepting service at an address are references—
(a) to accepting service of documents or process at that address; or
(b) otherwise to receiving notifications at that address;
....
(11) Where a description of electronic communications network, electronic communications service or associated facility is designated for the purposes of this section at a time when a network, service or facility of that description is already being provided or made available by a person—
(a) that person’s obligation under this section to give a notification before beginning to provide or make available that network, service or facility shall have effect as an obligation to give a notification within such period after the coming into force of the designation as may be specified in the notice in which the designation is contained; and
(b) that notification is to be one stating that that person is already providing the network or service, or making the facility available (rather than that it is his intention to do so).
(12) Subsection (11) has effect subject to any transitional provision—
(a) which is contained in the notification setting out the designation; and
(b) treats a person as having given the notification required by that subsection.
34 Designations and requirements for the purposes of s. 33
(1) Before—
(a) making or withdrawing a designation for the purposes of section 33, or
(b) imposing or modifying a requirement under subsection (4) of that section,
OFCOM must consult such of the persons who, in their opinion, are likely to be affected by it as they think fit.
(2) Before making or withdrawing a designation for the purposes of section 33 OFCOM must also consult the Secretary of State.
(3) The way in which a designation for the purposes of section 33 or a requirement under subsection (4) of that section—
(a) is to be made or imposed, or
(b) may be withdrawn or modified,
is by a notice published in such manner as OFCOM consider appropriate for bringing the designation, requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.
(4) A designation for the purposes of section 33 may be framed by reference to any such description of networks, services or facilities, or such other factors, as OFCOM think fit.
(5) Requirements imposed under section 33(4) may make different provision for different cases.
(1) Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, 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 contravention in respect of which the determination has been made;
(c) specifies the period during which the person notified has an opportunity to make representations;
(d) specifies information to be provided by the person to OFCOM; and
(e) specifies any penalty which OFCOM are minded to impose in accordance with section 35A.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) A notification under this section—
(a) may be given in respect of more than one contravention of section 33; and
(b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.
(9) Where a notification under this section has been given to a person in respect of a contravention of section 33, OFCOM may give a further notification in respect of the same contravention if, and only if—
(a) the subsequent notification is in respect of so much of a period during which the contravention in question was continuing as falls after a period to which the earlier notification relates; or
(b) the earlier notification has been withdrawn without a penalty having been imposed by reference to the notified contravention.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) This section applies where a person is given a notification under section 35 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 36(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 35 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.
36 Confirmation decision for contravention of s. 33
(1) This section applies where—
(a) a person (“the notified provider”) has been given a notification under section 35;
(b) OFCOM have allowed the notified provider an opportunity of making representations about the notified determination; 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 in accordance with the notification under section 35; or
(b) inform the notified provider that they are satisfied with the notified provider’s 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 section 33.
(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 imposed by virtue of section 35(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 35, 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) A person who, at any time in a charging year, is a person to whom this section applies shall—
(a) in respect of the network, service or facility provided or made available by him,
(b) in respect of the application to him of a universal service condition relating to matters mentioned in section 66(3),
(c) in respect of the application to him of an SMP apparatus condition, or
(d) in respect of the application of the electronic communications code in his case,
pay to OFCOM the administrative charge (if any) that is fixed by them for the case that is applicable to him.
(2) This section applies to a person at a time if, at that time, he is—
(a) providing an electronic communications network of a description which is, at that time, designated for the purposes of this section;
(b) providing an electronic communications service of a description which is, at that time, so designated;
(c) making available an associated facility of a description which is, at that time, so designated;
(d) a person who without being a communications provider is designated in accordance with regulations under section 66;
(e) a supplier of apparatus to whom an SMP apparatus condition applies; or
(f) a person in whose case the electronic communications code applies by virtue of a direction given under section 106 otherwise than for the purposes of the provision by him of an electronic communications network of a designated description.
(3) OFCOM are not to fix the administrative charge for a charging year unless—
(a) at the time the charge is fixed there is in force a statement by OFCOM of the principles that OFCOM are proposing to apply in fixing charges under this section for that year; and
(b) the charge is fixed in accordance with those charging principles.
(4) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make—
(a) that, on a year by year basis, the aggregate amount of the charges payable to OFCOM is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out the functions mentioned in subsection (5);
(b) that the cost of carrying out those functions is met by the imposition of charges that are objectively justifiable and proportionate to the matters in respect of which they are imposed;
(c) that the relationship between meeting the cost of carrying out those functions and the amounts of the charges is transparent;
(d) that the charges fixed for persons who are liable to charges by reason only of being persons to whom SMP apparatus conditions apply are referable only to things done in, or in connection with, the setting, modification or enforcement of SMP apparatus conditions or the carrying out of the functions mentioned in subsection (6)(l); and
(e) that the charges fixed for persons who are liable to charges by reason only of being persons falling within subsection (2)(f), are referable only to costs incurred in, or in connection with, the carrying out of the functions mentioned in subsection (6)(g) and (l).
(5) Those functions are—
(a) the relevant Chapter 1 functions;
(b) the carrying out for a Chapter 1 purpose of any research by OFCOM or the Consumer Panel into any of the matters mentioned in section 14(1)(c) to (f);
(c) the publication under section 26 of any information or advice that it appears to OFCOM to be appropriate to make available to the persons mentioned in subsection (2)(a) to (c) of that section; and
(d) the function of taking any steps that OFCOM consider it necessary to take—
(i) in preparation for the carrying out of any of the functions mentioned in paragraphs (a) to (c) of this subsection; or
(ii) for the purpose of facilitating the carrying out of those functions or otherwise in connection with carrying them out.
(6) The relevant Chapter 1 functions are—
(a) OFCOM’s functions under sections 33 to 37 and 44;
(b) the setting, modification and enforcement of conditions under section 45;
(c) the supervision, as respects the requirements of sections 33 to 37 and of any such conditions, of communications providers and of persons who make associated facilities available;
(d) the monitoring of compliance with those requirements and with any such conditions;
(e) the functions conferred on OFCOM by or under section 55;
(ea) their functions under sections 93A to 93D;
(eb) the monitoring of compliance with commitments that are made binding by a commitments decision;
(ec) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) their functions under sections 106 to 119;
(h) their functions under sections 185 to 191;
(i) securing international co-operation in relation to the regulation of electronic communications networks, electronic communications services and associated facilities;
(j) securing the harmonisation and standardisation of the regulation of electronic communications networks, electronic communications services and associated facilities;
(k) market analysis and any monitoring of the controls operating in the markets for electronic communications networks, electronic communications services and associated facilities;
(l) OFCOM’s functions under this section and sections 39 to 43.
(7) A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is the purpose of ascertaining the effectiveness of one or more of the following—
(a) the regulation of the provision of electronic communications networks or electronic communications services;
(b) the regulation of the making available of associated facilities;
(c) the mechanisms in place for the handling, by communications providers and by persons making such facilities available, of complaints made to them by consumers in markets for such services or facilities;
(d) the mechanisms in place for resolving disputes between such consumers and communications providers or persons who make such facilities available.
(8) OFCOM’s power to fix charges for a particular case includes—
(a) power to provide that the charges in that case are to be equal to the amounts produced by a computation made in the manner, and by reference to the factors, specified by them;
(b) power to provide for different charges to be imposed in that case on different descriptions of persons; and
(c) power to provide for particular descriptions of persons falling within subsection (2)(d) to (f) to be excluded from the liability to pay charges in that case.
(9) As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement setting out, in respect of that year—
(a) the aggregate amounts of the administrative charges for that year that have been received by OFCOM;
(b) the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and
(c) the cost to OFCOM of carrying out the functions mentioned in subsection (5).
(10) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (9) shall be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (4)(a) in relation to the following year.
(11) Section 34 applies in relation to the making and withdrawal of a designation for the purposes of this section as it applies to the making and withdrawal of a designation for the purposes of section 33.
(11A) For the purposes of this section, the cost to OFCOM of carrying out the functions mentioned in subsection (5) does not include the cost to OFCOM of doing anything for which they charge a fee under section 28A.
(12) In this section “charging year” means—
(a) the period beginning with the commencement of this section and ending with the next 31st March; or
(b) any subsequent period of twelve months beginning with 1st April.
(1) OFCOM’s power to fix a charge under section 38—
(a) is to be exercisable only by the publication or giving of such notification as they consider appropriate for bringing the charge to the attention of the persons who, in their opinion, are likely to be affected by it; and
(b) includes power, by setting it out in that notification, to fix the time at which the charge is to become due to OFCOM.
(2) A charge fixed under section 38 for a charging year may be fixed in terms providing for a deduction from the charge on a proportionate basis to be made for a part of the year during which—
(a) the network, service or facility in respect of which it is fixed is not provided or made available by the person otherwise liable to the charge;
(b) the universal service condition in respect of which it is fixed does not apply in that person’s case;
(c) the SMP apparatus condition in respect of which it is fixed does not apply in that person’s case; or
(d) the electronic communications code does not apply in that person’s case.
(3) Such a charge may also be fixed (subject to subsection (4)) so that it is referable, in whole or in part—
(a) to the provision or making available of a network, service or facility during a part of the year falling before the fixing of the charge;
(b) to the application of a universal service condition to a person for a part of the year so falling;
(c) to a person’s being a person to whom an SMP apparatus condition applies for a part of the year so falling; or
(d) to the application of the electronic communications code in a person’s case during a part of the year so falling.
(4) A charge may be fixed so as to be referable to a time before it is fixed to the extent only that both—
(a) the imposition of the charge, and
(b) the amount of the charge,
are required by, and consistent with, the statement of charging principles in force at the beginning of the charging year.
(5) Before making or revising a statement of charging principles, OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.
(6) The way in which a statement of charging principles must be made or may be revised is by the publication of the statement or revised statement 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.
(7) References in this section to a statement of charging principles are references to a statement by OFCOM of the principles that they are proposing to apply in fixing charges under section 38 for a charging year.
(8) In this section “charging year” has the same meaning as in section 38.
(1) OFCOM are not entitled to bring proceedings for the recovery from a person of an administrative charge fixed for any year under section 38 unless they have given that person a notification under this section with respect to the amount they are seeking to recover.
(2) Where OFCOM determine that there are reasonable grounds for believing that a person is in contravention (whether in respect of the whole or a part of a charge) of a requirement to pay such an administrative charge, they may give him a notification under this section.
(3) A notification under this section is one which—
(a) sets out the determination made by OFCOM; and
(b) specifies the period during which the person notified has an opportunity of making representations about the notified determination .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) A notification under this section—
(a) may be given in respect of contraventions of more than one requirement to pay an administrative charge; 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.
(10) Where a notification under this section has been given to a person in respect of an amount outstanding, OFCOM may give a further notification in respect of the whole or a part of that amount if, and only if—
(a) the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates; or
(b) the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.
(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) This section applies where—
(a) a person (“the notified charge payer”) has been given a notification under section 40;
(b) OFCOM have allowed the notified charge payer an opportunity of making representations about the notified determination; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may impose a penalty on the notified charge payer if he—
(a) has, in one or more of the respects notified, been in contravention of a requirement to pay an administrative charge fixed under section 38; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where a notification under section 40 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.
(4) Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.
(5) The amount of a penalty imposed under this section is to be such amount, not exceeding twice the amount of the charge fixed for the relevant year, as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(6) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified charge payer; and
(b) any steps taken by him towards paying the amounts that he was notified under section 40 were outstanding.
(7) Where OFCOM impose a penalty on a person under this section, they shall—
(a) without delay, 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.
(8) 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.
(9) In this section “the relevant year”, in relation to a contravention of a requirement to pay the whole or a part of the administrative charge fixed for any year, means that year.
(10) The provisions of this section do not affect OFCOM’s power, apart from those provisions, to bring proceedings (whether before or after the imposition of a penalty under this section) for the recovery of the whole or part of an amount due to them under section 38(1).
(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 to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);
(b) that the contraventions are not contraventions relating only to charges in respect of the application to the contravening provider of SMP apparatus conditions;
(ba) 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;
(c) 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;
(d) 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
(e) 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) OFCOM are not to give a direction under this section unless they have—
(a) notified the contravening provider of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;
(b) provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and
(c) considered every representation and proposal made to them during the period allowed by them for the contravening provider to take advantage of that opportunity.
(7) That period is such reasonable period as OFCOM may specify, beginning with the day of the giving of the notification.
(8) 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.
(9) For the purposes of this section there are repeated contraventions by a person of requirements to pay administrative charges to the extent that—
(a) in the case of a previous notification given to that person under section 40, OFCOM have determined for the purposes of section 41(2) that such a contravention did occur; and
(b) in the period of 24 months following the day of the making of that determination, one or more further notifications have been given to that person in respect of the same or different failures to pay administrative charges.
(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 42; 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 42 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 42 as they apply in relation to a contravention of conditions set under section 45.
44 Duty of OFCOM to keep publicly accessible register
(1) It shall be the duty of OFCOM to establish and maintain a register for the purposes of section 33.
(2) OFCOM must record in the register—
(a) every designation by them for the purposes of section 33 or 38;
(b) every withdrawal by them of such a designation;
(c) every notification given to them under section 33; and
(d) every notification treated as given to them under that section by a transitional provision made under subsection (12) of that section.
(3) Information recorded in the register must be so recorded in such manner as OFCOM consider appropriate.
(4) It shall be the duty of OFCOM to publish a notification setting out—
(a) the times at which the register is for the time being available for public inspection; and
(b) the fees that must be paid for, or in connection with, an inspection of the register.
(5) The publication of a notification under subsection (4) must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(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).
(1) OFCOM shall have the power to set conditions under this section binding the persons to whom they are applied in accordance with section 46.
(2) A condition set by OFCOM under this section must be either—
(a) a general condition; or
(b) a condition of one of the following descriptions—
(i) a universal service condition;
(ia) a social tariff condition;
(ii) an access-related condition;
(iii) a privileged supplier condition;
(iv) a significant market power condition (an “SMP condition”).
(3) A general condition is a condition which contains only provisions authorised or required by one or more of sections 51, 52, 57, 58 or 64.
(4) A universal service condition is a condition which contains only provisions authorised or required by section 67.
(4A) A social tariff condition is a condition which contains only provision authorised by section 72F.
(5) An access-related condition is a condition which contains only provisions authorised by section 73.
(6) A privileged supplier condition is a condition which contains only the provision required by section 77.
(7) An SMP condition is either—
(a) an SMP services condition; or
(b) an SMP apparatus condition.
(8) An SMP services condition is a condition which contains only provisions which—
(a) are authorised or required by one or more of sections 87 to 91 ; or
(b) in the case of a condition applying to a person falling within section 46(8)(b), correspond to provision authorised or required by one or more of sections 87 to 89A .
(9) An SMP apparatus condition is a condition containing only provisions authorised by section 93.
(10) OFCOM’s power to set a condition under this section making provision authorised or required by this Chapter includes each of the following—
(a) power to impose a requirement on the person or persons to whom the condition is applied to comply with such directions with respect to the matters to which the condition relates as may be given from time to time by OFCOM or by another person specified in the condition;
(b) power to impose an obligation with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;
(c) power, for the purposes of provision made by virtue of either of the preceding paragraphs, to confer a discretion exercisable from time to time by OFCOM or by another person specified in the condition or determined in accordance with provision contained in it;
(d) power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and
(e) power to revoke or modify the conditions for the time being in force.
(11) The directions that may be authorised by virtue of subsection (10) do not include directions withdrawing, suspending or restricting a person’s entitlement—
(a) to provide, in whole or in part, any electronic communications network or electronic communications service; or
(b) to make available, in whole or in part, any associated facilities.
(1) A condition set under section 45 is not to be applied to a person except in accordance with the following provisions of this section.
(2) A general condition may be applied generally—
(a) to every person providing an electronic communications network or electronic communications service; or
(b) to every person providing such a network or service of a particular description specified in the condition.
(3) A universal service condition, access-related condition, privileged supplier condition or SMP condition may be applied to a particular person specified in the condition.
(4) A privileged supplier condition may also be applied generally—
(a) to every person to whom such a condition is required to apply under section 77; or
(b) to every such person who is of a particular description specified in the condition.
(5) The particular person to whom a universal service condition is applied—
(a) except in the case of a condition relating to matters mentioned in subsection (3) of section 66, must be a communications provider designated in accordance with regulations under that section; and
(b) in that excepted case, must be a communications provider so designated or a person who is not such a provider but who is so designated for the purposes only of conditions relating to those matters.
(5A) A social tariff condition may be applied—
(a) generally to every person providing a public electronic communications service;
(b) generally to every person providing such a service of a particular description specified in the condition; or
(c) to a particular person specified in the condition.
(6) The particular person to whom an access-related condition is applied—
(a) in the case of a condition falling within section 74(1), may be any person whatever;
(aa) in the case of a condition falling within section 74(2A), must be—
(i) a person providing a public electronic communications network; or
(ii) the owner of a line or associated facility;
(ab) in the case of a condition falling within section 74A, must be a person who provides an electronic communications network; and
(b) in any other case, must be a person who provides an electronic communications network or makes associated facilities available.
(7) The particular person to whom an SMP services condition is applied must—
(a) be a communications provider or a person who makes associated facilities available; and
(b) fall within subsection (8).
(8) A person falls within this subsection if—
(a) he is a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications networks, electronic communications services or associated facilities (a “services market”); or
(b) it appears to OFCOM that he is a person on whom it is necessary, for the purpose of securing compliance with an international obligation of the United Kingdom, to impose a condition containing provision that corresponds to provision which, in the case of a person falling within paragraph (a), must be made (or may be made) under any of sections 87 to 89A .
(8A) A person whom OFCOM have previously determined to be a person having significant market power in a services market but whom OFCOM determine no longer to be a person having significant market power in that market is to be treated as continuing to fall within subsection (8) for so long as OFCOM consider necessary to ensure a sustainable transition for those benefitting from obligations imposed on that person as a result of the previous determination.
(9) The particular person to whom an SMP apparatus condition is applied must be—
(a) a person who supplies electronic communications apparatus; and
(b) a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications apparatus (an “apparatus market”).
(1) OFCOM must not, in exercise or performance of any power or duty under this Chapter—
(a) set a condition under section 45, or
(b) modify such a condition,
unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in subsection (2).
(2) That test is that the condition or modification is—
(a) objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates (but this paragraph is subject to subsection (3)) ;
(b) not such as to discriminate unduly against particular persons or against a particular description of persons;
(c) proportionate to what the condition or modification is intended to achieve; and
(d) in relation to what it is intended to achieve, transparent.
(3) Subsection (2)(a) does not apply in relation to the setting of a general condition.
(4) This section does not apply in relation to the setting or modification of a social tariff condition in accordance with a direction under section 72D(7).
48 Procedure for setting, modifying and revoking conditions
(1) Subject to the following provisions of this Chapter—
(a) the way in which conditions are to be set or modified under section 45 is by the publication of a notification setting out the conditions or modifications; and
(b) the way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.
(2) Where section 48A applies, OFCOM must comply with the applicable requirements of that section ... before—
(a) setting conditions under section 45; or
(b) modifying or revoking a condition so set.
(2A) Where section 48A does not apply to the setting, modification or revocation of conditions because of subsection (2) of that section—
(a) the conditions, or their modification or revocation, must be temporary; and
(b) the notification published under subsection (1) of this section must state the period for which the conditions, or their modification or revocation, are to have effect.
(2B) Where OFCOM propose to extend or make permanent any such temporary conditions, modification or revocation—
(a) section 48A does not apply in relation to the proposal; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) In the case of a proposal by OFCOM with respect to an SMP condition, the applicable requirements of sections 79 to 86 must also be complied with.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) The publication of a notification under this section or section 48A must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification—
(a) in the case of a notification setting general conditions, to the attention of such persons as OFCOM consider appropriate; and
(b) in any other case, to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the contents of the notification.
(7) Nothing in the following provisions of this Chapter imposing a duty on OFCOM to set or modify a condition shall be taken as dispensing with any of the requirements of this section or section 48A.
(1) This section applies where OFCOM propose to set, modify or revoke—
(a) SMP apparatus conditions; or
(b) any other conditions set under section 45 where what is proposed would, in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.
(2) But this section does not apply where ... in OFCOM’s opinion—
(a) there are exceptional circumstances; and
(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.
(2A) This section also does not apply to the proposed setting, modification or revocation of a social tariff condition.
(3) 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.
(4) That period must end no less than 30 days after the day of the publication of the notification.
(5) 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.
(6) OFCOM must—
(a) consider every representation about the proposal made to them during the period specified in the notification; and
(b) have 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.
(7) ... OFCOM may then give effect to the proposal, with any modifications that appear to OFCOM to be appropriate.
49 Directions and approvals for the purposes of a s. 45 condition
(1) This section applies where—
(a) a condition set under section 45 has effect by reference to directions, approvals or consents given by a person (whether OFCOM themselves or another); and
(b) that person (referred to in this section and sections 49A to 49C as “the responsible person”) is proposing to give a direction, approval or consent that affects the operation of that condition or to modify or withdraw a direction, approval or consent so as to affect the condition’s operation.
(2) The responsible person must not give, modify or withdraw the direction, approval or consent unless he is satisfied that to do so is—
(a) objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates (but this paragraph is subject to subsection (2A)) ;
(b) not such as to discriminate unduly against particular persons or against a particular description of persons;
(c) proportionate to what it is intended to achieve; and
(d) in relation to what it is intended to achieve, transparent.
(2A) Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition.
(3) Where the responsible person is a person other than OFCOM, that person shall in giving, modifying or withdrawing the direction be under the same duty as OFCOM to act in accordance with the six requirements set out in section 4.
(4) Where section 49A applies, the applicable requirements of that section ... must be complied with before the direction, approval or consent is given, modified or withdrawn.
(4A) Where section 49A does not apply because of subsection (2) of that section—
(a) the direction, approval or consent given, or its modification or withdrawal, must be temporary; and
(b) the instrument that gives, modifies or withdraws the direction, approval or consent must state the period for which it is to have effect.
(4B) Where it is proposed to extend or make permanent any such temporary direction, approval or consent, or modification or withdrawal—
(a) section 49A does not apply in relation to the proposal; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4C) Where the responsible person is a person other than OFCOM, that person must refer to OFCOM such of the following questions as are relevant in the case in question—
(a) whether OFCOM is of the opinion mentioned in section 49A(1)(b); and
(b) whether OFCOM is of the opinion mentioned in section 49A(2); ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4D) OFCOM must immediately determine any question so referred to them.
49A Consultation for directions, approvals and consents
(1) This section applies where the responsible person is proposing to give, modify or withdraw a direction, approval or consent for the purposes of—
(a) an SMP apparatus condition; or
(b) any other condition set under section 45 where what is proposed would, in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.
(2) But this section does not apply where ... in OFCOM’s opinion—
(a) there are exceptional circumstances; and
(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.
(3) The responsible person must publish a notification—
(a) stating that there is a proposal to give, modify or withdraw the direction, approval or consent;
(b) identifying the responsible person;
(c) setting out the direction, approval or consent to which the proposal relates;
(d) setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;
(e) giving reasons for the making of the proposal; and
(f) specifying the period within which representations may be made about the proposal to the responsible person.
(4) That period must be one ending not less than 30 days after the day of the publication of the notification.
(5) But where the responsible person is 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 that person considers reasonable in those circumstances.
(6) The responsible person must—
(a) consider every representation about the proposal made to that person during the period specified in the notification; and
(b) have regard to every international obligation of the United Kingdom (if any) which has been notified to OFCOM for the purposes of this paragraph by the Secretary of State.
(7) ... The responsible person may then give effect to the proposal, with any modifications that appear to that person to be appropriate.
(8) The publication of a notification under this section must be in such manner as appears to the responsible person to be appropriate for bringing the contents of the notification to the attention of such persons as that person considers appropriate.
(1) Subject to sections 52 to 64, the only conditions that may be set under section 45 as general conditions are conditions falling within one or more of the following paragraphs—
(a) conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;
(b) conditions making such provision as OFCOM consider appropriate for securing service interoperability and for securing, or otherwise relating to, network access;
(c) conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;
(d) conditions for giving effect to determinations or regulations made under section 71 or 72H;
(e) conditions requiring ... the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;
(f) conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;
(g) conditions requiring compliance with relevant international standards.
(2) The power under subsection (1)(a) to set conditions for protecting the interests of the end-users of public electronic communications services includes power to set conditions for that purpose which—
(a) relate to the supply, provision or making available of goods, services or facilities in association with the provision of public electronic communications services; ...
(b) provide protection for such end-users that is the same as, or similar to, any protection that was, immediately before IP completion day, required by Title 3 of Part 3 of the EECC Directive (end-user rights);
(ba) relate to any of the elements of a bundled contract;
(c) specify requirements in relation to the provision of services to disabled end-users;
(d) require the provision, free of charge, of specified information, or information of a specified kind, to end-users;
(da) require a communications provider to pay compensation to an end-user on failing to meet a specified standard or obligation;
(e) in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, impose minimum requirements in relation to the quality of public electronic communications networks;
(f) require a communications provider, in specified circumstances, to block access to telephone numbers or services in order to prevent fraud or misuse, and enable them to withhold fees payable to another communications provider in those circumstances;
(g) impose a limit on the duration of a contract between an end-user and a communications provider; ...
(h) ensure that conditions and procedures for the termination of a contract do not act as a disincentive to an end-user changing communications provider.
(i) specify requirements in relation to arrangements that enable an end-user to change communications provider on request.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2B) The power to set general conditions falling within subsection (1)(b) includes power to require negotiations relating to service interoperability or network access to be conducted through an intermediary who—
(a) is independent of the parties; and
(b) is either appointed by the parties with the approval of OFCOM or appointed by OFCOM.
(3) The power to set general conditions in relation to a description of electronic communications network or electronic communications service does not include power—
(a) to set conditions that are made applicable according to the identity of the provider of a network or service; or
(b) to set conditions that differ according to the identity of the provider of the networks or services to which they relate.
(4) The power to set general conditions falling within subsection (1)(b) does not include power to set conditions containing provision which under—
(a) section 73, or
(b) any of sections 87 to 91 ,
must be or may be included, in a case in which it appears to OFCOM to be appropriate to do so, in an access-related condition or SMP condition.
(5) The conditions falling within subsection (1)(c) include conditions making such provision as OFCOM consider appropriate for the purpose ... of preventing or restricting electro-magnetic interference—
(a) with the provision of an electronic communications network or electronic communications service; or
(b) with, or with the receipt of, anything conveyed or provided by means of such a network or service.
(6) In this section “electro-magnetic interference” means interference by means of the emission or reflection of electro-magnetic energy in the course of, or in connection with, the provision any electronic communications network or electronic communications service.
(7) In this section “disaster” includes any major incident having a significant effect on the general public; and for this purpose a major incident includes any incident of contamination involving radioactive substances or other toxic materials.
(8) In this Chapter “bundled contract” means a contract, or two or more closely related or linked contracts, between the provider of a public electronic communications service and a qualifying end-user, which—
(a) relates, or together relate, to the provision of at least one of the following—
(i) an internet access service; and
(ii) a number-based interpersonal communications service; and
(b) also relates, or together also relate, to the provision of at least one of the following—
(i) another service falling within paragraph (a)(i) or (ii);
(ii) any other public electronic communications service;
(iii) an information society service;
(iv) a content service; and
(v) terminal equipment.
(9) In subsection (8)—
“content service” has the meaning given by section 32(7);
“information society service” is to be read in accordance with Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification);
“internet access service” has the meaning given by section 32(2B);
“qualifying end-user” means an end-user who is—
an individual acting for purposes other than those of a business;
acting in the course of a business which is carried on by the end-user, and for which no more than 10 individuals work, whether as employees or volunteers or otherwise;
a not-for-profit body for which no more than 10 individuals work, whether as employees or otherwise but excluding volunteers.
(1) It shall be the duty of OFCOM to set such general conditions (if any) as they consider appropriate for securing that—
(a) public communications providers, or
(b) such descriptions of them as OFCOM consider appropriate,
establish and maintain procedures, standards and policies with respect to the matters mentioned in subsection (2).
(2) Those matters are—
(a) the handling of complaints made to public communications providers by any of their domestic and small business customers , where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service ;
(b) the resolution of disputes between such providers and any of their domestic and small business customers , where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service ;
(c) the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;
(ca) the payment of compensation to a person in respect of delay in porting a number to another public communications provider, or abuse of the process for porting a number;
(d) the information about service standards and about the rights of domestic and small business customers that is to be made available to those customers by public communications providers;
(e) any other matter appearing to OFCOM to be necessary for securing effective protection for the domestic and small business customers of such providers.
(3) It shall be the duty of OFCOM, in setting conditions in accordance with subsection (1), to secure so far as they consider appropriate—
(a) that the procedures established and maintained for the handling of complaints and the resolution of disputes are easy to use, transparent , non-discriminatory and effective;
(b) that domestic and small business customers have the right to use those procedures free of charge; and
(c) that where public communications providers are in contravention of conditions set in accordance with the preceding provisions of this section, the providers follow such procedures as may be required by the general conditions.
(4) Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for the handling of complaints are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers to establish and maintain procedures that conform with a code of practice which is—
(a) applicable to the providers to whom the conditions apply; and
(b) for the time being approved by OFCOM for the purposes of this subsection.
(5) Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for resolving disputes are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers—
(a) to establish and maintain procedures for resolving disputes; and
(b) to secure that those procedures are, and continue to be, approved by OFCOM.
(6) In this section “domestic and small business customer”, in relation to a public communications provider, means a customer of that provider who is neither—
(a) himself a communications provider; nor
(b) a person who is such a customer in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise).
53 Approval of codes of practice for the purposes of s. 52
(1) Where a code of practice is submitted to OFCOM for approval, they shall approve that code if and only if, in their opinion, it makes all such provision as they consider necessary in relation to the matters dealt with in the code for the protection of the domestic and small business customers of the public communications providers to whom the code applies.
(2) It shall be the duty of OFCOM to keep under review the codes of practice for the time being approved by them.
(3) OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—
(a) approve modifications that have been made to an approved code;
(b) withdraw their approval from a code; or
(c) give notice that the withdrawal of their approval will take effect from such time as may be specified in the notification unless such modifications of the code as are specified in the notification are made before that time.
(4) In considering—
(a) whether to approve a code of practice, or
(b) whether or in what manner to exercise their powers under subsections (2) and (3) of this section,
OFCOM must have regard to the matters mentioned in subsection (5).
(5) Those matters are—
(a) the need to secure that customers are able readily to comprehend the procedures that are provided for by an approved code of practice;
(b) the need to secure that there is consistency between the different codes for the time being approved by OFCOM; and
(c) the need to secure that the number of different codes so approved is kept to a minimum.
(6) In this section—
“approval” means approval for the purposes of section 52(4) and “approve” and “approved” are to be construed accordingly; and
“domestic and small business customer” has the same meaning as in section 52.
54 Approval of dispute procedures for the purposes of s. 52
(1) Before giving their approval to any dispute procedures, OFCOM must consult the Secretary of State.
(2) OFCOM are not to approve dispute procedures unless they are satisfied that the arrangements under which the procedures have effect—
(a) are administered by person who is for practical purposes independent (so far as decisions in relation to disputes are concerned) of both OFCOM and the communications providers to whom the arrangements apply;
(b) give effect to procedures that are easy to use, transparent , non-discriminatory and effective;
(c) give, in the case of every communications provider to whom the arrangements apply, a right to each of his domestic and small business customers to use the procedures free of charge;
(d) ensure that all information necessary for giving effect to the procedures is obtained;
(e) ensure that disputes are effectively investigated;
(f) include provision conferring power to make awards of appropriate compensation; and
(g) are such as to enable awards of compensation to be properly enforced.
(3) OFCOM may approve dispute procedures subject to such conditions (including conditions as to the provision of information to OFCOM) as they may think fit.
(4) It shall be the duty of OFCOM to keep under review the dispute procedures for the time being approved by them.
(5) OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—
(a) modify the conditions of their approval of any dispute procedures or withdraw such an approval; or
(b) give notice that the modification of those conditions, or the withdrawal of such an approval, will take effect from such time as may be specified in the notification unless the procedures (or the arrangements under which they have effect) are modified before that time in the manner required by the notification.
(6) In considering—
(a) whether to approve dispute procedures, or
(b) whether or in what manner to exercise their powers under subsections (3) to (5),
OFCOM must have regard to the matters mentioned in subsection (7).
(7) Those matters are—
(a) the need to secure that customers are able readily to comprehend dispute procedures;
(b) the need to secure that there is consistency between the different procedures for the time being approved by OFCOM; and
(c) the need to secure that the number of different sets of procedures so approved is kept to a minimum.
(8) In this section—
“approval” means approval for the purposes of subsection (5) of section 52 and “approve” and “approved” are to be construed accordingly;
“dispute procedures” means any such procedures as may fall to be approved for the purposes of that subsection; and
“domestic and small business customer” has the same meaning as in section 52.
55 Orders by OFCOM in the absence of conditions under s. 52
(1) OFCOM may make an order under this section if, at any time, they consider in relation to any one or more public communications providers—
(a) that it is not practicable, or at least not appropriate, for OFCOM’s duties under subsections (1) and (3) of section 52 to be performed in a particular respect by the setting of general conditions; and
(b) that it is necessary to make the order for the purpose—
(i) of securing the necessary protection for the customers of that provider or of those providers; ...
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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 complaints and disputes mentioned in section 52(2);
(b) provision for the enforcement of those requirements;
(c) 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; and
(f) 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 public communications providers 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 a body corporate or of a procedure; or
(b) the making of any other arrangements for the purposes of the requirements of such an order.
(5) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.
(6) Section 403 applies to the power of OFCOM to make an order under this section.
(7) 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) It shall be the duty of OFCOM to publish a document (to be known as “the National Telephone Numbering Plan”) setting out—
(a) the numbers that they have determined to be available for allocation by them as telephone numbers;
(b) such restrictions as they consider appropriate on the adoption of numbers available for allocation in accordance with the plan; ...
(ba) such requirements as they consider appropriate, for the purpose of protecting consumers, in relation to the tariff principles and maximum prices applicable to numbers so adopted or available for allocation; and
(c) such restrictions as they consider appropriate on the other uses to which numbers available for allocation in accordance with the plan may be put.
(2) It shall be OFCOM’s duty—
(a) from time to time to review the National Telephone Numbering Plan; and
(b) to make any revision of that plan that they think fit in consequence of such a review;
but this duty must be performed in compliance with the requirements, so far as applicable, of section 60.
(3) OFCOM must also keep such day to day records as they consider appropriate of the telephone numbers allocated by them in accordance with the National Telephone Numbering Plan.
(4) The publication of the National Telephone Numbering Plan, or of a revision of it, must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the Plan, or of the revised Plan, to the attention of such persons as OFCOM consider appropriate.
(5) In this Chapter references to a telephone number are (subject to subsection (7)) references to any number that is used (whether or not in connection with telephony) for any one or more of the following purposes—
(a) identifying the destination for, or recipient of, an electronic communication;
(b) identifying the origin, or sender, of an electronic communication;
(c) identifying the route for an electronic communication;
(d) identifying the source from which an electronic communication or electronic communications service may be obtained or accessed;
(e) selecting the service that is to be obtained or accessed, or required elements or characteristics of that service; or
(f) identifying the communications provider by means of whose network or service an electronic communication is to be transmitted, or treated as transmitted.
(6) In this Chapter references to the adoption of a telephone number by a communications provider are references to his doing any of the following in relation to a number allocated (whether or not to that provider) by OFCOM—
(a) allocating or transferring that number to a particular customer or piece of apparatus;
(b) using that number for identifying a service or route used by that provider or by any of his customers;
(c) using that number for identifying a communication as one to be transmitted by that provider;
(d) designating that number for use in selecting a service or the required elements or characteristics of a service;
(e) authorising the use of that number by others for any of the purposes mentioned in subsection (5).
(7) The Secretary of State may by order exclude such numbers as may be described in the order from the numbers that are to be treated as telephone numbers for the purposes of this Chapter.
(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.
(9) References in this section to the allocation of a number are references to its allocation for the purposes of general conditions under section 58 or in accordance with conditions under section 59.
(10) In this section—
“electronic communication” means a communication for transmission by means of an electronic communications network; and
“number” includes data of any description.
56A Conditions for limitations on allocation of telephone numbers
(1) When OFCOM allocate telephone numbers in accordance with the National Telephone Numbering Plan, they must specify whether an allocation may be transferred from one person to another, and may set out the conditions under which the allocation may be transferred.
(2) If OFCOM allocate telephone numbers for a limited period of time, the limitation must be objectively justifiable in relation to the services to which it relates, taking account of the need to allow for an appropriate period of investment amortisation.
57 Conditions to secure access to telephone numbers
(1) General conditions may impose such requirements as OFCOM consider appropriate for securing that every end-user of a public electronic communications service is able, by means of that service—
(a) to make calls or otherwise transmit electronic communications to every normal telephone number; and
(b) to receive every call or other electronic communication that is made or transmitted to him using such a service from apparatus identified by a normal telephone number.
(2) A normal telephone number is one which—
(a) has been made available, in accordance with the National Telephone Numbering Plan, as a number to be used for the purpose of identifying the destination for, or the recipient of, electronic communications; and
(b) is for the time being—
(i) a number adopted by a communications provider to be used for such a purpose; or
(ii) a number in use for such a purpose by a person other than a communications provider to whom it has been allocated in accordance with conditions under section 59.
(3) In this section “electronic communication” has the same meaning as in section 56.
58 Conditions about allocation and adoption of numbers
(1) General conditions may include conditions which—
(a) prohibit the adoption of telephone numbers by a communications provider except in cases where the numbers have been allocated by OFCOM to a person;
(aa) impose tariff principles and maximum prices for the purpose of protecting consumers in relation to the provision of an electronic communications service by means of telephone numbers adopted or available for use;
(b) regulate the use by a communications provider, for the purpose of providing an electronic communications network or electronic communications service, of telephone numbers not allocated to that provider;
(c) impose restrictions on the adoption of telephone numbers by a communications provider, and on other practices by communications providers in relation to telephone numbers allocated to them;
(d) impose requirements on a communications provider in connection with the adoption by him of telephone numbers;
(e) require an allocation of particular telephone numbers to be transferred from one communications provider to another in the circumstances provided for in the conditions;
(f) impose such requirements and restrictions on a communications provider from whom an allocation is required to be transferred as may be provided for, in relation to the transfer, in the conditions;
(g) require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of the allocation to him of telephone numbers;
(h) require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of transfers of allocations from one person to another; and
(i) require communications providers to secure compliance with such rules relating to the use of telephone numbers by their customers as OFCOM may set out in general conditions or determine in accordance with provision made by the general conditions.
(2) General conditions may also—
(a) provide for the procedure to be followed on the making of applications to OFCOM for the allocation of telephone numbers;
(b) provide for the information that must accompany such applications and for the handling of such applications;
(c) provide a procedure for telephone numbers to be reserved pending the making and disposal of an application for their allocation;
(d) provide for the procedure to be followed on the making of applications for telephone numbers to be reserved, and for the handling of such applications;
(e) regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the adoption by a communications provider of telephone numbers allocated to that provider;
(f) regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the transfer of an allocation from one person to another.
(2A) General conditions may also require a communications provider to whom telephone numbers have been allocated—
(a) to provide OFCOM with any information that was not required to accompany the application for allocation of the numbers when it was made but which is now required to accompany such applications;
(b) to inform OFCOM of any changes to information that accompanied the application for allocation of the numbers or that has been provided in accordance with a condition set under paragraph (a);
(c) to inform OFCOM of any proposal by the provider to cease to provide an electronic communications network or electronic communications service;
(d) to inform OFCOM of any circumstances or events of a description specified in the condition.
(3) The conditions that may be set under subsection (1)(d) include conditions imposing requirements with respect to the provision of information for purposes connected with—
(a) the compilation of directories; and
(b) the provision of directory enquiry facilities.
(4) The procedure to be followed on the making of an application for the allocation of numbers that are available for allocation in accordance with the National Telephone Numbering Plan must require OFCOM’s determination of the application to be made—
(a) in the case of an application made in response to an invitation in accordance with subsection (5), before the end of six weeks after the day on which the application is received; and
(b) in any other case, before the end of three weeks after that day.
(5) Where OFCOM are proposing to allocate any telephone numbers, they may—
(a) invite persons to indicate the payments each would be willing to make to OFCOM if allocated the numbers; and
(b) make the allocation according to the amounts indicated.
(6) General conditions providing for payments to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—
(a) must set out the principles according to which the amounts of the payments are to be determined;
(b) may provide for the payments to consist of a lump sum in respect of a particular allocation or transfer or of sums payable periodically while an allocation remains in force, or of both;
(c) may provide for the amounts to be determined by reference to—
(i) any indication according to which the allocation has been made as mentioned in subsection (5); or
(ii) any other factors (including the costs incurred by OFCOM in connection with the carrying out of their functions by virtue of section 56 and this section) as OFCOM think fit.
(7) General conditions may—
(a) make modifications from time to time of, or of the method of determining, the amounts of periodic payments falling to be made by virtue of conditions containing provision authorised by this section; and
(b) make different provision in relation to different descriptions of communications provider and different descriptions of telephone number.
(8) Nothing in subsection (7) authorises the modification, after it has been fixed, of the amount of a periodic payment fixed in accordance with arrangements made in relation to numbers allocated as mentioned in subsection (5)(b).
(9) Payments that are required to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—
(a) must be paid to them as soon as they become due in accordance with the conditions imposing the obligation to pay; and
(b) if not so paid, are to be recoverable by them accordingly.
(1) OFCOM may set conditions under this section that apply to persons other than communications providers and relate to—
(a) the allocation of telephone numbers to such persons;
(b) the transfer of allocations to and from such persons; and
(c) the use of telephone numbers by such persons.
(2) The conditions that may be set under this section include conditions imposing obligations corresponding to any of the obligations that may be imposed on communications providers by general conditions making provision for, or in connection with—
(a) the allocation of telephone numbers;
(b) the transfer of allocations; or
(c) the use of telephone numbers.
(3) Subsection (10) of section 45 applies to OFCOM’s power to set a condition under this section as it applies to their power to set a condition under that section.
(4) Sections 47 to 49 apply in relation to—
(a) the setting of conditions under this section and the modification and revocation of such conditions; and
(b) the giving, modification or withdrawal of any direction, approval or consent for the purposes of a condition under this section,
as they apply in the case of general conditions and in the case of directions, approvals and consents given for the purposes of general conditions.
(5) It shall be the duty of a person who—
(a) is not a communications provider, but
(b) applies for the allocation of a telephone number, or is allocated such a number,
to comply with any conditions set under this section.
(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) Subsection (6) does not apply in the case of a person against whom the obligations contained in the condition in question are enforceable (by virtue of his having become a communications provider) as obligations imposed by general conditions.
60 Modification of documents referred to in numbering conditions
(1) This section applies where numbering conditions for the time being have effect by reference to provisions, as they have effect from time to time, of—
(a) the National Telephone Numbering Plan; or
(b) another document published by OFCOM.
(2) OFCOM must not revise or otherwise modify the relevant provisions unless they are satisfied that the revision or modification is—
(a) objectively justifiable in relation to the matters to which it relates;
(b) not such as to discriminate unduly against particular persons or against a particular description of persons;
(c) proportionate to what the modification is intended to achieve; and
(d) in relation to what it is intended to achieve, transparent.
(3) Before revising or otherwise modifying the relevant provisions, OFCOM must publish a notification—
(a) stating that they are proposing to do so;
(b) specifying the Plan or other document that they are proposing to revise or modify;
(c) setting out the effect of their proposed revisions or modifications;
(d) giving their reasons for making the proposal; and
(e) specifying the period within which representations may be made to OFCOM about their proposal.
(4) That period must be one ending not less than 30 days after the day of the publication of the notification.
(5) OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (3) only if—
(a) they have considered every representation about the proposal that is made to them within the period specified in the notification; and
(b) they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.
(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 such persons as OFCOM consider appropriate.
(7) In this section—
“numbering conditions” means—
general conditions the making of which is authorised by section 57 or 58;
conditions set under section 59;
“the relevant provisions”, in relation to the Plan or document, means the provisions of the Plan or document by reference to which (as they have effect from time to time) the numbering conditions in question have effect.
(1) Where OFCOM have allocated telephone numbers for the purposes of any numbering conditions, they may withdraw that allocation if, and only if, the case is one in which the withdrawal of an allocation is authorised by this section.
(2) The withdrawal of an allocation is authorised (subject to section 62) if—
(a) consent to the withdrawal is given by the person to whom the numbers are for the time being allocated;
(b) the withdrawal is made for the purposes of a transfer of the allocation required by numbering conditions;
(c) the withdrawal is made for the purposes of a numbering reorganisation applicable to a particular series of telephone numbers;
(d) the withdrawal is made in circumstances specified in the numbering conditions and for the purpose of securing that what appears to OFCOM to be the best and most efficient use is made of the numbers and other data that are appropriate for use as telephone numbers;
(e) the allocated numbers are numbers that have not been adopted during such period after their allocation as may be specified in the numbering conditions; or
(f) the allocated numbers are comprised in a series of numbers which have not to a significant extent been adopted or used during such period as may be so specified.
(3) The withdrawal of an allocation is also authorised where—
(a) there have been serious or repeated contraventions, by the person to whom the allocation is for the time being allocated, of the numbering conditions; and
(b) it appears to OFCOM that the taking of other steps in respect of the contraventions is likely to prove ineffective for securing future compliance.
(4) The withdrawal of an allocation is also authorised where—
(a) the person to whom the allocation is for the time being allocated is not a communications provider; and
(b) it appears to OFCOM that contraventions by that person of numbering conditions makes the withdrawal of the allocation appropriate.
(5) OFCOM’s power to set conditions specifying circumstances for the purposes of subsection (2)(d), and their power to withdraw an allocation in the specified circumstances, are each exercisable only in a manner that does not discriminate unduly—
(a) against particular communications providers;
(b) against particular users of the allocated numbers; or
(c) against a particular description of such providers or users;
and the purposes for which those powers may be exercised do not include the carrying out of a numbering reorganisation of the sort mentioned in subsection (2)(c).
(6) Where OFCOM are proposing to withdraw an allocation in exercise of the power conferred by virtue of subsection (2)(e) or (f), they must—
(a) give a notification of their proposal;
(b) consider any representations made to them about the proposal within the period of 30 days following the day on which the notification is given; and
(c) ensure that the withdrawal (if OFCOM decide to proceed with it after considering those representations) does not take effect until the end of the three months beginning with the end of the period mentioned in paragraph (b).
(7) A notification for the purposes of subsection (6) must be given in such manner as OFCOM consider appropriate for bringing it to the attention of—
(a) the person to whom the numbers to which the proposed withdrawal relates are for the time being allocated;
(b) every person appearing to OFCOM to be a person to whom communications are or may be transmitted using one of those numbers for identifying the destination or route;
(c) every person who uses one or more of those numbers for obtaining access to services or for communication; and
(d) every other person who, in OFCOM’s opinion, is likely to be affected by the proposal.
(8) For the purposes of this section there are repeated contraventions by a person of numbering conditions to the extent that—
(a) in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(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 confirmation decisions related to the same contravention or to different contraventions of the same or different conditions.
(9) In this section “numbering conditions” means—
(a) general conditions the making of which is authorised by section 58; or
(b) conditions set under section 59.
(1) This section applies to the withdrawal of an allocation for the purposes of a numbering reorganisation that is applicable to a particular series of telephone numbers.
(2) The allocation is to be withdrawn only if the reorganisation, so far as it relates to numbers of any description, is not such as to discriminate unduly—
(a) against particular communications providers;
(b) against particular users of the allocated numbers; or
(c) against a particular description of such providers or users.
(3) The allocation must not be withdrawn if the reorganisation fails to provide for withdrawn allocations to be replaced by allocations of telephone numbers so nearly resembling the numbers to which the withdrawal relates as the purpose of the reorganisation allows.
(4) Where a replacement allocation is made for the purposes of the re-organisation—
(a) no payment is to be made to OFCOM in respect of the making of the replacement allocation; but
(b) subsection (5) is to apply.
(5) Where this subsection applies—
(a) a provision for the making of periodic payments in respect of the withdrawn allocation is to be treated, to the extent that OFCOM determine that it should, as a provision requiring the making of periodic payments in respect of the replacement allocation; and
(b) OFCOM may, if they think fit, make such repayments or adjustments of a provision for payment as appear to them to be appropriate in consequence of differences between—
(i) the numbers to which the withdrawn allocation relates; and
(ii) the numbers to which the replacement allocation relates.