(1) OFCOM are not to set an SMP condition falling within section 87(9) except where—
(a) it appears to them from the market analysis carried out for the purpose of setting that condition that there is a relevant risk of adverse effects arising from price distortion; and
(b) it also appears to them that the setting of the condition is appropriate for the purposes of—
(i) promoting efficiency;
(ii) promoting sustainable competition; ...
(iii) conferring the greatest possible benefits on the end-users of public electronic communications services having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and
(iv) where relevant to the market analysis, promoting the availability and use of new and enhanced networks.
(1A) Even if the tests in subsection (1)(a) and (b) are satisfied, OFCOM may consider not imposing an SMP condition if they consider—
(a) that a demonstrable retail price constraint is present; and
(b) that obligations imposed by SMP conditions not falling within section 87(9) ensure effective and non-discriminatory access.
(2) In setting an SMP condition falling within section 87(9), OFCOM must take account of—
(a) the extent of the investment in the matters to which the condition relates of the person to whom it is to apply; and
(b) where the condition involves price controls on the provision of network access to existing network elements, the benefits of predictable and stable wholesale prices in ensuring—
(i) efficient market entry; and
(ii) sufficient incentives for all undertakings to bring into operation new and enhanced networks.
(3) For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—
(a) so fix and maintain some or all of his prices at an excessively high level, or
(b) so impose a price squeeze,
as to have adverse consequences for end-users of public electronic communications services.
(4) In considering the matters mentioned in subsection (1)(b) OFCOM may—
(a) have regard to the prices at which services are available in comparable competitive markets;
(b) determine what they consider to represent efficiency by using such cost accounting methods as they think fit.
(5) In this section “the dominant provider” has the same meaning as in section 87.
89 Conditions about network access in exceptional cases
(1) This section applies where—
(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;
(b) that person is the provider of an electronic communications network or a person who makes associated facilities available; and
(c) OFCOM consider that there are exceptional circumstances making it appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.
(2) OFCOM may set the additional SMP conditions and apply them to the dominant provider ...
(1) This section applies where—
(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;
(b) that person is the provider of a public electronic communications network or a person who makes available facilities that are associated facilities by reference to such a network;
(c) it appears to OFCOM that the setting of conditions applying to the dominant provider under section 87 (and, where OFCOM think it appropriate, section 88) has failed to address competition problems identified by OFCOM in carrying out a market analysis for the purpose of setting or modifying those conditions; and
(d) OFCOM have identified important and persisting competition problems or market failures in relation to the provision of network access.
(2) OFCOM may set an SMP services condition (referred to in this section and section 89B as a “functional separation condition”) requiring the dominant provider to transfer activities relating to the provision of network access to an independently operating business entity which is a part of the dominant provider.
(3) Where a functional separation condition is imposed on the dominant provider, the products or services specified in the condition must be given to the dominant provider and to other persons—
(a) on the same timescales, terms and conditions, including those relating to price and service levels, and
(b) by means of the same systems and processes.
(4) A functional separation condition must, where relevant, specify—
(a) the precise nature and level of separation, specifying in particular the legal status of the entity to which activities are transferred;
(b) an identification of the assets of that entity and the products or services to be supplied by it;
(c) the governance arrangements (including incentive structures) to ensure the independence of the staff employed in that entity;
(d) rules for ensuring compliance with the obligations imposed by the condition;
(e) rules for ensuring transparency of operational procedures, in particular towards persons, other than the dominant provider, who in OFCOM’s opinion are likely to be affected by the condition; and
(f) a monitoring programme to ensure compliance, including a requirement for the publication of an annual report.
89B Functional separation conditions: matters to be considered by OFCOM
(1) This section applies where OFCOM propose to apply a functional separation condition to a person.
(2) OFCOM must consider the expected impact of the condition on—
(a) OFCOM;
(b) the person on whom the condition is to be imposed;
(c) the staff of the entity to which activities are to be transferred;
(d) the electronic communications sector as a whole;
(e) incentives to invest in the electronic communications sector, particularly with regard to the need to ensure social and territorial cohesion;
(f) competition in the services market affected by the condition; and
(g) other persons who in OFCOM's opinion are likely to be affected by the condition, including, in particular, consumers.
(3) OFCOM must also consider—
(a) evidence relevant to the conclusions mentioned in section 89A(1)(c) and (d);
(b) whether there is little or no prospect of effective and sustainable infrastructure based competition within a reasonable timeframe;
(c) whether a functional separation condition would be the most effective means of addressing important and persisting competition problems or market failures identified by OFCOM; and
(d) the impact that the obligations contained in the condition are likely to have on SMP services conditions set in relation to the services markets which, in OFCOM's opinion, will be affected by the proposed condition.
89C Obligation to notify OFCOM of voluntary separation
(1) This section applies where—
(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;
(b) the dominant provider is the provider of a public electronic communications network or a person who makes associated facilities available; and
(c) the dominant provider decides to transfer a substantial part or all of the dominant provider’s local access network assets to an independently operating business entity (which may be a part of the dominant provider or another person) for the purpose specified in subsection (2).
(2) That purpose is to use the assets to provide products or services to the dominant provider and to other persons—
(a) on the same timescales, terms and conditions, including those relating to price and service levels; and
(b) by means of the same systems and processes.
(3) The dominant provider must notify OFCOM of—
(a) the decision to transfer the assets;
(b) any changes to its intentions; and
(c) the taking effect of the transfer.
(4) Where OFCOM receive a notification under this section, they must, as soon as reasonably practicable, consider the impact that the transfer is likely to have on SMP services conditions set in relation to the services markets which, in OFCOM’s opinion, will be affected by the proposed transfer.
91 Conditions about regulation of services etc. for end-users
(1) Where—
(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market (“the relevant market”),
(b) the relevant market is one for the end-users of public electronic communications services that are available in that market, and
(c) it appears to OFCOM that the test in subsection (2) is satisfied in the case of that provider,
they shall set, and apply to that provider, such SMP conditions authorised by this section as they consider appropriate.
(2) That test is that OFCOM are unable, by the setting of conditions of the sorts specified in subsection (3), to perform, or fully to perform, their duties under section 4 in relation to the market situation in the relevant market.
(3) The sorts of conditions referred to in subsection (2) are—
(a) access-related conditions; and
(b) SMP conditions authorised or required by sections 87 to 89 .
(4) The reference in subsection (2) to the market situation in the relevant market is a reference to the situation revealed by such market analyses of that market as may have been carried out for the purposes of this Chapter.
(5) The SMP conditions authorised by this section are conditions imposing on the dominant provider such regulatory controls as OFCOM may from time to time direct in relation to the provision by that provider of any public electronic communications service to the end-users of that service.
(6) Where OFCOM set a condition which is authorised by this section and imposes regulatory control on tariffs or other matters to which costs are relevant, they shall also set, and apply to the dominant provider, an SMP condition which requires him, to the extent that they consider it appropriate—
(a) to use such cost accounting systems as may be determined by them;
(b) to have the use of those systems audited annually by a qualified auditor; and
(c) to publish an annual statement about compliance by the dominant provider with the obligations imposed by virtue of paragraph (a).
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In this section “qualified auditor” means a person who—
(a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and
(b) if the appointment to carry out such auditing as is mentioned in subsection (6)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).
(1) Subsection (2) applies where—
(a) OFCOM make or have made a market power determination that a person (“the dominant provider”) has significant market power in an identified services market; and
(b) the dominant provider is not engaged in any of the following—
(i) the provision of a public electronic communications network to end-users of public electronic communications services;
(ii) the provision of a public electronic communications service to end-users;
(iii) the making available of associated facilities to end-users of public electronic communications services.
(2) OFCOM must consider whether the following tests are satisfied in the case of the dominant provider.
(3) The first test is that none of the persons specified in subsection (4) has activities in any retail market for electronic communications services provided to end-users in the United Kingdom.
(4) Those persons are—
(a) the dominant provider;
(b) any subsidiary undertaking or parent undertaking of the dominant provider;
(c) any subsidiary undertaking of a parent undertaking of the dominant provider.
(5) The second test is that the dominant provider is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which amounts in effect to an exclusive agreement.
(6) If OFCOM are satisfied that both those tests are satisfied, OFCOM are not to apply to the dominant provider any SMP condition except one or more of the following—
(a) a condition authorised by section 87(3);
(b) a condition authorised by section 87(6)(a);
(c) a condition which is authorised by section 87(9) and relates to fair and reasonable pricing in connection with the provision of network access to the dominant provider’s network.
(7) Subsection (6) does not restrict OFCOM’s powers in a case where, by reason of the terms and conditions on which the dominant provider is willing to enter into an access contract, OFCOM conclude that competition problems have arisen or are likely to arise to the detriment of end-users.
(8) The dominant provider must notify OFCOM as soon as reasonably practicable of any change in circumstances relevant to the application of the tests in subsections (3) and (5).
(9) If, as a result of a notification under subsection (8) or otherwise, OFCOM determine that either of the tests in subsections (3) and (5) is no longer satisfied in relation to the dominant provider, OFCOM must consider whether to set or modify SMP conditions applying to the dominant provider.
(10) In this section “parent undertaking” and “subsidiary undertaking” each has the meaning given by section 1162 of the Companies Act 2006.
(1) Where OFCOM have made a determination that a person (“the dominant supplier”) has significant market power in an identified apparatus market, they may—
(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the supply of electronic communications apparatus; and
(b) apply those conditions to that person.
(2) This section authorises the setting of SMP conditions of each of the following descriptions—
(a) conditions requiring the dominant supplier to maintain such a separation for accounting purposes between matters relating to the supply of electronic communications apparatus and other matters as may be described in the conditions;
(b) conditions imposing requirements about the accounting methods to be used in maintaining the separation; and
(c) conditions imposing such rules as OFCOM may make, for the purpose of securing the maintenance of the separation, about the use of cost accounting systems.
(3) This section also authorises the setting of SMP conditions imposing price controls in relation to the hiring of telephones which are hardwired to an electronic communications network.
(4) Conditions set under this section must not make provision in relation to the supply of electronic communications apparatus unless the apparatus is of a description of apparatus as respects the supply of which the dominant supplier has been found to have significant market power.
(5) For the purposes of this section a telephone is hardwired to an electronic communications network where, in order for it to be used with that network—
(a) it has to be physically attached to apparatus comprised in the network; and
(b) the attachment has to be effected by a process that requires the use of a tool.
(1) This section applies where OFCOM have made, or are considering the making of, a determination that a person who provides a public electronic communications network (“the dominant provider”) has significant market power in an identified services market.
(2) The dominant provider may notify OFCOM of a proposal to address the competition problems that are identified in the market power determination, or the possible competition problems that are identified in the proposal for a market power determination, by making commitments to provide network access to, or co-investment in, that network.
(3) The proposal must—
(a) be sufficiently detailed to enable OFCOM to undertake a detailed consideration under subsection (6);
(b) specify the period during which the dominant provider is willing to be bound by the commitments; and
(c) comply with such other requirements as OFCOM may publish for the purposes of this subsection.
(4) If the proposal complies with subsection (3), OFCOM must publish a notification of the proposal.
(5) The notification must—
(a) state that OFCOM are considering whether to accept the proposed commitments;
(b) set out the effect of the proposal and an initial analysis by OFCOM of the proposal; and
(c) specify the period within which representations may be made to OFCOM about the proposal and analysis.
(6) OFCOM must—
(a) consider every representation about the proposal and analysis made to them during the period specified in the notification under subsection (5);
(b) notify the dominant provider of their opinion—
(i) that the proposal is adequate to address the competition problems, or possible competition problems, mentioned in subsection (2); or
(ii) that if specified changes were made the proposal would be adequate to address those problems; or
(iii) that for specified reasons the proposal is inadequate to address those problems; and
(c) publish the notification given under paragraph (b).
(7) The dominant provider may then revise the proposal in the light of OFCOM’s opinion.
(8) If the dominant provider notifies OFCOM that the dominant provider is willing to implement the proposal, or the proposal as revised under subsection (7), OFCOM may decide to make the commitments binding, for such period as they may specify in the decision.
(9) A decision under subsection (8) (referred to in this Chapter as a “commitments decision”) takes effect on being notified by OFCOM to the dominant provider and published by OFCOM.
(10) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.
93B Notification of proposed commitments relating to very high capacity network
(1) Section 93A has effect subject to the provisions of this section in a case where—
(a) the dominant provider referred to in section 93A(1) proposes commitments which include a commitment to open up investment in a network to co-investment (“a co-investment commitment”);
(b) the network is a very high capacity network which consists of optical fibre elements—
(i) up to the premises of the end-user or, where this is technically impracticable, up to the immediate proximity of those premises; or
(ii) up to the base station; and
(c) the bringing into operation of the network was not publicly announced before 21 December 2018;
(d) the dominant provider has notified OFCOM under subsection (2) of section 93A of a proposal complying with subsection (3) of that section.
(2) OFCOM are not required to publish under section 93A(4) a notification complying with section 93A(5) in relation to the proposed co-investment commitment if in their opinion the proposal does not address all the matters specified in subsection (3) of this section.
(3) In considering the proposed co-investment commitment under section 93A(6), OFCOM must, in particular, consider whether in their opinion the offer to co-invest satisfies the following requirements—
(a) it is open at any moment during the lifetime of the network to any provider of electronic communications networks or services;
(b) it would allow other co-investors who are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the dominant provider is active on terms which include—
(i) fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to co-investment;
(ii) flexibility in terms of the value and timing of the participation of each co-investor;
(iii) the possibility of increasing such participation in the future;
(iv) reciprocal rights awarded by the co-investors after the bringing into operation of the co-invested infrastructure;
(c) it is made public by the dominant provider in a timely manner and, if the dominant provider is not a wholesale-only undertaking, within such period of not less than 6 months before the bringing into operation of the new network as OFCOM consider appropriate;
(d) persons seeking access to the network but not participating in the co-investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the bringing into operation of the network;
(e) it is accompanied by a mechanism of adaptation over time, confirmed by OFCOM in light of developments on the related retail markets, that—
(i) maintains the incentives to participate in the co-investment; and
(ii) ensures that persons seeking access at any time have access to the very high capacity elements of the network on transparent and non-discriminatory terms which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the bringing into operation of the network and take into account the competitive situation in retail markets;
(f) it complies with—
(i) the criteria set out in points (a) to (d) of Annex 4 to the EECC Directive; and
(ii) any additional criteria that OFCOM consider necessary to ensure accessibility of potential investors to the co-investment and publish for the purposes of this section; and
(g) it is made in good faith.
(4) OFCOM must, by a commitments decision, make the co-investment commitment binding if—
(a) in considering the proposal under section 93A(6), they determine that the co-investment commitment—
(i) satisfies (or, if changes specified under section 93A(6) were made, would satisfy) the requirements in subsection (3); and
(ii) is adequate (or, if changes so specified were made, would be adequate) to address the competition problems, or possible competition problems, mentioned in section 93A(2); and
(b) the dominant provider notifies OFCOM under section 93A(8) in relation to the proposal (or, as the case requires, the proposal as revised under section 93A(7)).
(5) In the case of a co-investment commitment, the period specified by OFCOM in a commitments decision must be at least 7 years.
(6) In determining whether the requirements of subsection (3) are met, OFCOM may have regard to any guidelines that are from time to time published by BEREC under Article 76(4) of the EECC Directive (whether before or after IP completion day).
(1) It is the duty of the dominant provider to comply with the commitments specified in a commitments decision during the period specified in the decision.
(2) As soon as practicable after making a commitments decision in a case where SMP services conditions have been applied or would have been applied to the dominant provider, OFCOM must review the appropriateness, having regard to the commitments decision, of the conditions that have been or would have been applied.
(3) In carrying out the review, the matters to which OFCOM are to have regard include—
(a) evidence regarding the fair and reasonable character of the commitments;
(b) whether the commitments involve obligations to all market participants;
(c) whether the commitments promote the timely availability of access under fair, reasonable and non-discriminatory conditions, including access to very high capacity networks, before the launch of related retail services;
(d) the overall adequacy of the commitments to enable sustainable competition on downstream markets and to facilitate co-operative deployment and take-up of very high capacity networks in the interests of end-users.
(4) If, in the case of a commitment made binding as a result of section 93B(4), at least one person has entered into an agreement for co-investment with the dominant provider under the commitments decision, OFCOM must take steps to revoke or modify any SMP services conditions that they consider to be affected by the decision.
(5) Subsection (4) does not apply where, in OFCOM’s opinion, the characteristics of the services market to which the determination referred to in section 93A(1) relates are such that, despite the commitments to which effect is given by the commitments decision, the SMP services condition continues to be necessary in order to address significant competition problems.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) In this section “dominant provider” means the person who made the proposal to which the commitments decision relates.
(1) This section applies where a commitments decision has effect in relation to a person who provides a public electronic communications network (“the dominant provider”).
(2) The dominant provider may notify OFCOM of a proposed modification of the commitments that are made binding by the commitments decision.
(3) In a case where OFCOM consider that the modification would not have a material effect, they may make a decision under section 93A(8) relating to the commitments as proposed to be modified.
(4) In any other case, OFCOM must notify the dominant provider of their opinion that the proposed modification would have a material effect; and subsections (2) to (10) of section 93A then apply in relation to the commitments as proposed to be modified.
94 Notification of contravention of SMP apparatus conditions
(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, an SMP apparatus condition 5, they may give that person a notification under this section.
(2) A notification under this section is one which—
(a) sets out the determination made by OFCOM;
(b) specifies the condition and contravention in respect of which that determination has been made; and
(c) specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).
(3) Those things are—
(a) making representations about the matters notified;
(b) complying with notified conditions of which he remains in contravention; and
(c) remedying the consequences of notified contraventions.
(4) Subject to subsections (5) to (7) and section 98(3), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.
(5) OFCOM may, if they think fit, allow a longer period for doing those things either—
(a) by specifying a longer period in the notification; or
(b) by subsequently, on one or more occasions, extending the specified period.
(6) The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.
(7) The person notified shall also have a shorter period if—
(a) OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;
(b) they have determined that, in those circumstances, a shorter period would be appropriate; and
(c) the shorter period has been specified in the notification.
(8) A notification under this section—
(a) may be given in respect of more than one contravention; and
(b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.
(9) Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—
(a) the contravention is one occurring after the time of the giving of the earlier notification;
(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or
(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.
(10) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.
(10A) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.
(10B) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.
(11) For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—
(a) a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same condition; and
(b) the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 95(2) or 96(2) that the contravention to which the previous notification related did occur.
95 Enforcement notification for contravention of conditions
(1) This section applies where—
(a) a person (“the notified provider”) has been given a notification under section 94;
(b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may give the notified provider an enforcement notification if they are satisfied—
(a) that he has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and
(b) that he has not, during the period allowed under that section, taken all such steps as they consider appropriate—
(i) for complying with that condition; and
(ii) for remedying the consequences of the notified contravention of that condition.
(3) An enforcement notification is a notification which imposes one or both of the following requirements on the notified provider—
(a) a requirement to take such steps for complying with the notified condition as may be specified in the notification;
(b) a requirement to take such steps for remedying the consequences of the notified contravention as may be so specified.
(4) A decision of OFCOM to give an enforcement notification to a person—
(a) must be notified by them to that person, together with the reasons for the decision, no later than one week after the day on which it is taken; and
(b) must fix a reasonable period for the taking of the steps required by the notification.
(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.
(6) That duty shall be enforceable in civil proceedings by OFCOM—
(a) for an injunction;
(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or
(c) for any other appropriate remedy or relief.
(1) This section applies (in addition to section 95) where—
(a) a person (“the notified provider”) has been given a notification under section 94;
(b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and
(c) the period allowed for the making of the representations has expired.
(2) OFCOM may impose a penalty on the notified provider if he—
(a) has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and
(b) has not, during the period allowed under that section, taken the steps OFCOM consider appropriate—
(i) for complying with the notified condition; and
(ii) for remedying the consequences of the notified contravention of that condition.
(3) Where a notification under section 94 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) OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 95 in respect of the notified contravention.
(6) Where OFCOM impose a penalty on a person under this section, they shall—
(a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for that decision; and
(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.
(7) A penalty imposed under this section—
(a) must be paid to OFCOM; and
(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.
96A Notification of contravention of condition other than SMP apparatus condition
(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a condition (other than an SMP apparatus condition) set under section 45, they may give that person a notification under this section.
(2) A notification under this section is one which—
(a) sets out the determination made by OFCOM;
(b) specifies the condition and contravention in respect of which that determination has been made;
(c) specifies the period during which the person notified has an opportunity to make representations;
(d) specifies the steps that OFCOM think should be taken by the person in order to—
(i) comply with the condition;
(ii) remedy the consequences of the contravention;
(e) specifies any penalty which OFCOM are minded to impose in accordance with section 96B;
(f) where the contravention is serious, specifies any direction which OFCOM are minded to give under section 100; and
(g) where the contravention relates to a condition set under sections 87 to 91, specifies any direction which OFCOM are minded to give under section 100A.
(3) A notification under this section—
(a) may be given in respect of more than one contravention; and
(b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.
(4) Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—
(a) the contravention is one occurring after the time of the giving of the earlier notification;
(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or
(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.
(5) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.
(6) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.
(7) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.
(8) This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition (other than an SMP apparatus condition) set under section 45.
(1) This section applies where a person is given a notification under section 96A 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 96C(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 £20,000 per day as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(1) This section applies where—
(a) a person has been given a notification under section 96A;
(b) OFCOM have allowed the person an opportunity to make representations about the matters notified; and
(c) the period allowed for the making of representations has expired.
(2) OFCOM may—
(a) give the person a decision (a “confirmation decision”) confirming the imposition of requirements on the person, or the giving of a direction to the person, or both, in accordance with the notification under section 96A; or
(b) inform the person that they are satisfied with the person’s representations and that no further action will be taken.
(3) OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a condition or commitment specified in the notification under section 96A.
(4) A confirmation decision—
(a) must be given to the person without delay;
(b) must include reasons for the decision;
(c) may require immediate action by the person to comply with requirements of a kind mentioned in section 96A(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 96A, 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 commitment or to remedy the consequences of the contravention, and
may specify the period within which the penalty is to be paid.
(5) It is the duty of the person to comply with any requirement imposed by a confirmation decision.
(6) That duty is enforceable in civil proceedings by OFCOM—
(a) for an injunction;
(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or
(c) for any other appropriate remedy or relief.
(7) A penalty imposed by a confirmation decision—
(a) must be paid to OFCOM; and
(b) if not paid within the period specified by them, is to be recoverable by them accordingly.
(1) The amount of a penalty imposed under section 96 or notified under section 96A (other than a penalty falling within section 96B(4)) is to be such amount not exceeding ten per cent. of the turnover of the person ’s relevant business for the relevant period as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(2) In making a determination in relation to a penalty imposed under section 96 OFCOM must have regard to—
(a) any representations made to them by the person ;
(b) any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94; and
(c) any steps taken by him for remedying the consequences of those contraventions.
(3) For the purposes of this section—
(a) the turnover of a person’s relevant business for a period shall be calculated in accordance with such rules as may be set out by order made by the Secretary of State; and
(b) provision may also be made by such an order for determining what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made.
(4) No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(5) In this section—
“relevant business” means (subject to the provisions of an order under subsection (3) and to subsections (6) and (7)) so much of any business carried on by the person as consists in any one or more of the following—
the provision of an electronic communications network;
the provision of an electronic communications service;
the making available of associated facilities;
the supply of directories for use in connection with the use of such a network or service;
the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service;
any business not falling within any of the preceding paragraphs which is carried on in association with any business in respect of which any access-related condition is applied to the person carrying it on;
“relevant period”, in relation to a contravention by a person of a condition set under section 45 or of a commitment that is made binding by a commitments decision, means—
except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 94 or 96A;
in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; and
in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.
(6) In the case of a contravention of an SMP apparatus condition the relevant business is so much of any business carried on by the person in respect of whose contravention the penalty is imposed as consists in the supply of electronic communications apparatus.
(7) So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—
(a) a contravention of an access-related condition imposed in respect of that business; or
(b) a contravention of an enforcement notification given under section 95 or a confirmation decision under section 96C relating to such a condition.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) This section applies where OFCOM determine—
(a) that they are entitled to give a notification under section 96A with respect to a contravention by a person (“the contravening provider”) of a condition set under section 45 or of a commitment that is made binding by a commitments decision, ...;
(b) that there are reasonable grounds for suspecting that the case is an urgent case; and
(c) that the urgency of the case makes it appropriate for OFCOM to take action under this section.
(2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—
(a) a serious threat to the safety of the public, to public health or to national security;
(b) serious economic or operational problems for persons (other than the contravening provider) who are communications providers or persons who make associated facilities available; or
(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) OFCOM shall ... have power to give to the contravening provider—
(a) a direction that his entitlement 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.
(5) A direction under subsection (4)—
(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.
(6) A direction under subsection (4)—
(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 his customers.
(7) 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.
(8) OFCOM have power to revoke a direction given under subsection (4)—
(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.
(1) As soon as reasonably practicable after giving a direction under section 98(4), OFCOM must give the person to whom it is given—
(a) an opportunity of making representations to them about the grounds on which it was given and its effect; and
(b) an opportunity of proposing steps to remedy the situation.
(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction under section 98(4) was given) , they must determine—
(a) whether the contravention providing the grounds for the giving of the direction did occur; and
(b) whether the circumstances made it an urgent case justifying the giving of the direction.
(2A) The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—
(a) require additional time to consider representations received; or
(b) decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (2).
(3) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.
(4) If not, they must exercise their power to revoke it.
(5) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.
(6) Conditions included in a direction by virtue of section 98(7) have effect only if the direction is confirmed.
100 Suspending service provision for contraventions of conditions
(1) OFCOM may give a direction under this section to a person where—
(a) either Condition A or Condition B is satisfied in relation to the person; and
(b) the giving of a direction is appropriate and proportionate to the contravention in respect of which it is imposed.
(1A) Condition A is that—
(a) the person is in serious contravention of a condition set under section 45, other than SMP apparatus conditions; and
(b) the proposed direction has been notified to the person under section 96A and confirmed by a confirmation decision under section 96C.
(1B) Condition B is that—
(a) the person has repeatedly contravened a condition set under section 45, other than SMP apparatus conditions; and
(b) an attempt, by the imposition of penalties or the giving of notifications under section 96A and confirmation decisions under section 96C, or both, to secure compliance with the contravened conditions has failed.
(1C) Where Condition A is satisfied, a direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.
(1D) Where Condition B is satisfied, a direction under this section is to be given in accordance with the procedure set out in section 102.
(2) A direction under this section is—
(a) a direction that the entitlement of the person 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 person 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 person ’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.
(7) For the purposes of this section there are repeated contraventions by a person of conditions set under section 45 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;
(b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition under section 45;
(c) the previous confirmation decision and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).
(8) This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition set under section 45, other than an SMP apparatus condition.
100A Suspending service provision for breach of SMP services condition
(1) OFCOM may give a direction under this section to a person who provides a public electronic communications network, or a person who makes available facilities that are associated facilities by reference to such a network, if OFCOM are satisfied that—
(a) the person is or has been in contravention of conditions set under sections 87 to 91 or of commitments that are made binding by a commitments decision; and
(b) the provision of an electronic communications service by the person on that public electronic communications network could result in significant harm to competition.
(2) A direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.
(3) A direction under this section is—
(a) a direction that the entitlement of the person to provide an electronic communications service over the public electronic communications network to which the contravened condition or commitment relates is suspended (either generally or in relation to particular services); or
(b) a direction that the person may not begin to provide an electronic communications service over the public electronic communications network to which the contravened provision relates.
(4) A direction under this section—
(a) must specify the electronic communications services to which it relates, and
(b) takes effect for an indefinite period beginning with the time at which a confirmation decision relating to the direction is given to the person under section 96C.
(5) A direction under this section—
(a) may provide for a suspension or prohibition to take effect only at a time determined by or in accordance with the terms of the direction; and
(b) in connection with a suspension or prohibition contained in the direction or with the postponement of its effect, may impose such conditions on the person to whom it is given as appear to OFCOM to be appropriate for the purpose of protecting that person’s customers.
(6) Those conditions may include a condition requiring the making of payments—
(a) by way of compensation for loss or damage suffered by the person’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(7) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—
(a) with effect from such time as they may direct;
(b) subject to compliance with such requirements as they may specify; and
(c) to such extent and in relation to such services, or parts of a service, as they may determine.
101 Suspending apparatus supply for contraventions of conditions
(1) OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—
(a) that he is or has been in serious and repeated contravention of any SMP apparatus conditions;
(b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 or both, to secure compliance with the contravened conditions has failed; and
(c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.
(2) A direction under this section is—
(a) a direction to the contravening supplier to cease to act as a supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description); or
(b) a direction imposing such restrictions as may be set out in the direction on the supply by that supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description).
(3) A direction under this section takes effect, except so far as it otherwise provides, 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) may provide for a prohibition or restriction to take effect only at a time determined by or in accordance with the terms of the direction; and
(b) in connection with a prohibition or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening supplier as appear to OFCOM to be appropriate for the purpose of protecting that supplier’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 supplier’s customers as a result of the direction; or
(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.
(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may at any time 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 apparatus or descriptions of apparatus as they may determine.
(7) For the purposes of this section there are repeated contraventions by a person of SMP apparatus conditions to the extent that—
(a) in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;
(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of an SMP apparatus condition; and
(c) the previous notification and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).
102 Procedure for directions under ss. 100 and 101
(1) Except in an urgent case, or a case where Condition A in section 100 is satisfied, OFCOM are not to give a direction under section 100 or 101 unless they have—
(a) notified the contravening provider or contravening supplier 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 or the contravening supplier to take advantage of that opportunity.
(2) That period must be—
(a) in relation to a direction under section 100, such reasonable period as OFCOM may determine, and
(b) in relation to a direction under section 101, a period ending not less than 30 days after the day of the giving of the notification.
(3) As soon as practicable after giving a direction under section 100 or 101 in an urgent case, OFCOM must, provide the contravening provider or contravening supplier with an opportunity of—
(a) making representations about the effect of the direction and of any of its conditions; and
(b) proposing steps for remedying the situation.
(3A) In relation to a direction under section 100 in an urgent case, as soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—
(a) whether the contravention providing the grounds for the giving of the direction did occur; and
(b) whether the circumstances made it an urgent case justifying the giving of the direction.
(3B) The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—
(a) require additional time to consider representations received; or
(b) decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).
(4) A case is an urgent case for the purposes of this section if OFCOM—
(a) consider that it would be inappropriate, because the contraventions in question fall within subsection (5), to allow time, before giving a direction under section 100 or 101, for the making and consideration of representations; and
(b) decide for that reason to act in accordance with subsection (3), instead of subsection (1).
(5) The contraventions fall within this subsection if they have resulted in, or create an immediate risk of—
(a) a serious threat to the safety of the public, to public health or to national security;
(b) serious economic or operational problems for persons (apart from the contravening provider or contravening supplier) who are communications providers or persons who make associated facilities available; or
(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.
(6) In this section—
“contravening provider” means a person who is a communications provider or makes associated facilities available;
“contravening supplier” has the same meaning as in section 101.
103 Enforcement of directions under ss. 98, 100 , 100A and 101
(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 98(4), 100 or 100A ; or
(b) in contravention of a restriction contained in such a direction.
(2) A person is guilty of an offence if he supplies electronic communications apparatus—
(a) while prohibited from doing so by a direction under section 101; or
(b) in contravention of a restriction contained in such a direction.
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 98, 100 or 100A as they apply in relation to a contravention of conditions set under section 45, other than SMP apparatus conditions.
(5) Sections 94 to 96 and 97 to 99 apply in relation to a contravention of conditions imposed by a direction under section 101 as they apply in relation to a contravention of SMP apparatus conditions.
104 Civil liability for breach of conditions or confirmation decision
(1) The obligation of a person to comply with—
(a) the conditions set under section 45 which apply to him,
(aa) the person’s commitments that are made binding by a commitments decision,
(b) requirements imposed on him by an enforcement notification under section 95, ...
(ba) requirements imposed on the person by a notification under section 96A and a confirmation decision under section 96C; and
(c) the conditions imposed by a direction under section 98 , 100 or 100A,
shall be a duty owed to every person who may be affected by a contravention of the condition, commitment or requirement.
(2) Where a duty is owed by virtue of this section 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.
(3) In proceedings brought against a person by virtue of subsection (2)(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, commitment or requirement in question.
(4) The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a) or (aa).
(5) Where OFCOM give a consent for the purposes of subsection (4) subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on by that person except in compliance with those conditions.
(1) The provider of a public electronic communications network or a public electronic communications service must take such measures as are appropriate and proportionate for the purposes of—
(a) identifying the risks of security compromises occurring;
(b) reducing the risks of security compromises occurring; and
(c) preparing for the occurrence of security compromises.
(2) In this Chapter “security compromise”, in relation to a public electronic communications network or a public electronic communications service, means—
(a) anything that compromises the availability, performance or functionality of the network or service;
(b) any unauthorised access to, interference with or exploitation of the network or service or anything that enables such access, interference or exploitation;
(c) anything that compromises the confidentiality of signals conveyed by means of the network or service;
(d) anything that causes signals conveyed by means of the network or service to be—
(i) lost;
(ii) unintentionally altered; or
(iii) altered otherwise than by or with the permission of the provider of the network or service;
(e) anything that occurs in connection with the network or service and compromises the confidentiality of any data stored by electronic means;
(f) anything that occurs in connection with the network or service and causes any data stored by electronic means to be—
(i) lost;
(ii) unintentionally altered; or
(iii) altered otherwise than by or with the permission of the person holding the data; or
(g) anything that occurs in connection with the network or service and causes a connected security compromise.
(3) But in this Chapter “security compromise” does not include anything that occurs as a result of conduct that—
(a) is required or authorised by or under an enactment mentioned in subsection (4);
(b) is undertaken for the purpose of providing a person with assistance in giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in subsection (4);
(c) is undertaken for the purpose of providing a person with assistance in exercising any power conferred by or under prison rules; or
(d) is undertaken for the purpose of providing assistance to a constable or a member of a service police force (acting in either case in that capacity).
(4) The enactments are—
(a) the Investigatory Powers Act 2016;
(b) Part 1 of the Crime and Courts Act 2013;
(c) the Prisons (Interference with Wireless Telegraphy) Act 2012;
(d) the Regulation of Investigatory Powers Act 2000;
(e) the Regulation of Investigatory Powers (Scotland) Act 2000;
(f) the Intelligence Services Act 1994;
(g) any other enactment (whenever passed or made) so far as it—
(i) makes provision which is in the interests of national security;
(ii) has effect for the purpose of preventing or detecting crime or of preventing disorder; or
(iii) makes provision which is in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security.
(5) In this section—
“connected security compromise” means—
in relation to a public electronic communications network, a security compromise that occurs in relation to another public electronic communications network or a public electronic communications service;
in relation to a public electronic communications service, a security compromise that occurs in relation to a public electronic communications network or another public electronic communications service;
“crime” and “detecting crime” have the same meanings as in the Investigatory Powers Act 2016;
“prison rules” means any rules made under—
section 47 of the Prison Act 1952;
section 39 of the Prisons (Scotland) Act 1989; or
section 13 of the Prison Act (Northern Ireland) 1953;
“service police force” means—
the Royal Navy Police;
the Royal Military Police; or
the Royal Air Force Police;
“signal” has the same meaning as in section 32.
(1) The Secretary of State may by regulations provide that the provider of a public electronic communications network or a public electronic communications service must take specified measures or measures of a specified description.
(2) A measure or description of measure may be specified only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for a purpose mentioned in section 105A(1).
(3) In this section “specified” means specified in the regulations.
(4) Nothing in this section or regulations under it affects the duty imposed by section 105A.
105C Duty to take measures in response to security compromises
(1) This section applies where a security compromise occurs in relation to a public electronic communications network or a public electronic communications service.
(2) The provider of the network or service must take such measures as are appropriate and proportionate for the purpose of preventing adverse effects (on the network or service or otherwise) arising from the security compromise.
(3) If the security compromise has an adverse effect on the network or service, the provider of the network or service must take such measures as are appropriate and proportionate for the purpose of remedying or mitigating that adverse effect.
105D Duty to take specified measures in response to security compromise
(1) The Secretary of State may by regulations provide that, where a security compromise of a specified description occurs in relation to a public electronic communications network or a public electronic communications service, the provider of the network or service must take specified measures or measures of a specified description.
(2) A measure or description of measure may be specified under subsection (1) only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for the purpose of preventing adverse effects (on the network or service or otherwise) arising from a security compromise of the specified description.
(3) The Secretary of State may by regulations provide that, where a security compromise occurs in relation to a public electronic communications network or a public electronic communications service and has an adverse effect of a specified description on the network or service, the provider of the network or service must take specified measures or measures of a specified description.
(4) A measure or description of measure may be specified under subsection (3) only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for the purpose of remedying or mitigating an adverse effect of the specified description.
(5) In this section “specified” means specified in the regulations.
(6) Nothing in this section or regulations under it affects the duty imposed by section 105C.
105E Codes of practice about security measures etc
The Secretary of State may—
(a) issue codes of practice giving guidance as to the measures to be taken under sections 105A to 105D by the provider of a public electronic communications network or a public electronic communications service;
(b) revise a code of practice issued under this section and issue the code as revised;
(c) withdraw a code of practice issued under this section.
105F Issuing codes of practice about security measures
(1) Before issuing a code of practice under section 105E the Secretary of State—
(a) must publish a draft of—
(i) the code; or
(ii) where relevant, the revisions of the existing code;
(b) must consult the following about the draft—
(i) OFCOM;
(ii) providers of public electronic communications networks to whom the draft would apply;
(iii) providers of public electronic communications services to whom the draft would apply; and
(iv) such other persons as the Secretary of State considers appropriate; and
(c) may make such alterations to the draft as the Secretary of State considers appropriate following the consultation.
(2) Before issuing a code of practice under section 105E the Secretary of State must also lay a draft of the code before Parliament.
(3) If, within the 40-day period, either House of Parliament resolves not to approve the draft of the code, the code may not be issued.
(4) If no such resolution is made within that period, the code may be issued.
(5) If the code is issued, the Secretary of State must publish it.
(6) A code of practice comes into force at the time of its publication under subsection (5), unless it specifies a different commencement time.
(7) A code of practice may—
(a) specify different commencement times for different purposes;
(b) include transitional provisions and savings.
(8) In this section, the “40-day period”, in relation to a draft of a code, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the 2 days on which it is laid).
(9) For the purposes of calculating the 40-day period, no account is to be taken of any period during which—
(a) Parliament is dissolved or prorogued, or
(b) both Houses are adjourned for more than 4 days.
105G Withdrawing codes of practice about security measures
(1) Before withdrawing a code of practice under section 105E the Secretary of State must—
(a) publish notice of the proposal to withdraw the code; and
(b) consult the following about the proposal—
(i) OFCOM;
(ii) providers of public electronic communications networks to whom the code applies;
(iii) providers of public electronic communications services to whom the code applies; and
(iv) such other persons as the Secretary of State considers appropriate.
(2) Where the Secretary of State withdraws a code of practice under section 105E the Secretary of State must—
(a) publish notice of the withdrawal of the code; and
(b) lay a copy of the notice before Parliament.
(3) A withdrawal of a code of practice has effect at the time of the publication of the notice of withdrawal under subsection (2), unless the notice specifies a different withdrawal time.
(4) A notice of withdrawal may—
(a) specify different withdrawal times for different purposes;
(b) include savings.
105H Effects of codes of practice about security measures
(1) A failure by the provider of a public electronic communications network or a public electronic communications service to act in accordance with a provision of a code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal.
(2) In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of a code of practice in determining any question arising in the proceedings if—
(a) the question relates to a time when the provision was in force; and
(b) the provision appears to the court or tribunal to be relevant to the question.
(3) OFCOM must take into account a provision of a code of practice in determining any question arising in connection with the carrying out by them of a relevant function if—
(a) the question relates to a time when the provision was in force; and
(b) the provision appears to OFCOM to be relevant to the question.
(4) In this section—
“code of practice” means a code of practice issued under section 105E;
“relevant function” means a function conferred on OFCOM by any of the following provisions—
section 105M (general duty of OFCOM to ensure compliance with security duties);
section 105N (power of OFCOM to assess compliance with security duties);
section 105O (power of OFCOM to give assessment notices);
section 105S (enforcement of security duties);
section 105U (enforcement of security duties: proposal for interim steps);
section 105V (enforcement of security duties: direction to take interim steps).
105I Duty to explain failure to act in accordance with code of practice
(1) This section applies where OFCOM have reasonable grounds for suspecting that the provider of a public electronic communications network or a public electronic communications service is failing, or has failed, to act in accordance with a provision of a code of practice issued under section 105E.
(2) OFCOM may give a notification to the provider that—
(a) specifies the provision of the code of practice;
(b) specifies the respects in which the provider is suspected to be failing, or to have failed, to act in accordance with it; and
(c) directs the provider to give to OFCOM a statement under subsection (3) or (4).
(3) A statement under this subsection is a statement that—
(a) confirms that the provider is failing, or has failed, in the respects specified in the notification to act in accordance with the provision of the code of practice; and
(b) explains the reasons for the failure.
(4) A statement under this subsection is a statement that—
(a) states that the provider is not failing, or has not failed, in the respects specified in the notification to act in accordance with the provision of the code of practice; and
(b) explains the reasons for that statement.
(5) The provider must comply with a direction given under subsection (2)(c) within such reasonable period as may be specified in the notification.
105J Duty to inform users of risk of security compromise
(1) This section applies where there is a significant risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service.
(2) The provider of the network or service must take such steps as are reasonable and proportionate for the purpose of bringing the relevant information, expressed in clear and plain language, to the attention of persons who use the network or service and may be adversely affected by the security compromise.
(3) The relevant information is—
(a) the existence of the risk of the security compromise occurring;
(b) the nature of the security compromise;
(c) the technical measures that it may be reasonably practicable for persons who use the network or service to take for the purposes of—
(i) preventing the security compromise adversely affecting them;
(ii) remedying or mitigating the adverse effect that the security compromise has on them; and
(d) the name and contact details of a person from whom further information may be obtained about the security compromise.