(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; and
(iii) software and stored data.
(2) In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.
(3) In this Act “associated facility” means a facility which—
(a) is available for use 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 available); and
(b) is so available for the purpose of—
(i) making the provision of that network or service possible;
(ii) making possible the provision of other services provided by means of that network or service; or
(iii) 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.
(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;
(b) the time when it is intended that effect should be given to the relevant proposal;
(c) particulars identifying the person giving the notification;
(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) particulars identifying one or more persons who may be contacted if there is an emergency that is caused by or affects the provision of the notified network, service or facility;
(f) addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) to (e).
(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) Requirements imposed under subsection (4) are not to require a notification by a person to contain particulars falling within subsection (5)(d) in a case in which—
(a) that person is resident in a member State or has a place of business in a member State;
(b) the notification contains a statement under subsection (8);
(c) the notification sets out an address in a member State at which service will be accepted by the person who, in accordance with that statement, is authorised to accept it; and
(d) OFCOM are satisfied that adequate arrangements exist for effecting service on that person at that address.
(8) That statement is one which—
(a) declares that the person authorised, for the purposes of matters relating to the notified network, service or facilities, to accept service on behalf of the person giving the notification is that person himself; or
(b) identifies another person who is resident in a member State, or has a place of business in such State, as the person so authorised.
(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;
and the reference in subsection (7) to effecting service at an address is to be construed accordingly.
(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.
(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; and
(b) 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 determination; and
(b) providing OFCOM with the information which the notified person should have provided for the purposes of section 33 but has not.
(4) Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.
(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 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) 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 section 33; 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 36(2) or 37(2) that the contravention to which the previous notification related did occur.
(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 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 section 33; and
(b) that he has not, during the period allowed under section 35, provided OFCOM with all the information which he should have provided to them to remedy the contravention.
(3) An enforcement notification is a notification which imposes a requirement on the notified provider to take all such steps for providing OFCOM with that information as may be specified in the notification.
(4) A decision of OFCOM to give an enforcement notification to a person—
(a) must be notified to that person, together with the reasons for the decision, no later than a 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 36) 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 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 section 33; and
(b) has not, during the period allowed under section 35, provided OFCOM with all the information which he should have provided to remedy the contravention.
(3) Where a notification under section 35 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 36 in respect of the notified contravention.
(6) The amount of a penalty imposed under this section is to be such amount not exceeding £10,000 as OFCOM determine to be—
(a) appropriate; and
(b) proportionate to the contravention in respect of which it is imposed.
(7) In making that determination OFCOM must have regard to—
(a) any representations made to them by the notified provider; and
(b) any steps taken by him towards complying with his obligations under section 33.
(8) Where OFCOM impose a penalty on a person under this section, they shall—
(a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for that decision; and
(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.
(9) A penalty imposed under this section—
(a) must be paid to OFCOM; and
(b) if not paid within the period fixed by them, is to be recoverable by them accordingly.
(10) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (6).
(11) No order is to be made containing provision authorised by subsection (10) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(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 are 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;
(f) their functions under section 105;
(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.
(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.