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Communications Act 2003 (c. 21)(The document as of February, 2008) Page 13 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20 | P.21 | P.22 | P.23 | P.24 | P.25 | P.26 | P.27 | P.28 | P.29 | P.30 | P.31 | P.32 | P.33 | P.34 | P.35 | P.36 | P.37 | P.38 | P.39 | P.40 | P.41 | P.42 | P.43 | P.44 | P.45 | P.46 | P.47 | P.48 | P.49 | P.50 | P.51 | P.52 | P.53 (5) The powers in this section are subject to the limitations in section 137. 136 Information required for related purposes(1) OFCOM may require-- (a) a communications provider, or (b) a person who makes associated facilities available to others, to provide OFCOM with all such information as they consider necessary for the purpose specified in subsection (2). (2) That purpose is the carrying out-- (a) with a view to publication, and (b) in the interest of the end-users of public electronic communications services, of comparative overviews of the quality and prices of such services. (3) OFCOM may also require-- (a) a communications provider, or (b) a person who makes associated facilities available to others, to provide them, for use for such statistical purposes as they think fit, with information relating to any electronic communications network, electronic communications service or associated facilities. (4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM. (5) The powers in this section are subject to the limitations in section 137. 137 Restrictions on imposing information requirements(1) This section limits the purposes for which, and manner in which, information may be required under sections 135 and 136. (2) OFCOM are not to require the provision of information for the purpose of ascertaining whether a contravention of a general condition has occurred, or is occurring, unless-- (a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint; (b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the general condition in question has been complied with; (c) the condition in question is one which OFCOM have reason to suspect is one that has been or is being contravened; or (d) the condition in question is one falling within section 51(1)(d). (3) OFCOM are not to require the provision of information under section 135 or 136 except-- (a) by a demand for the information that describes the required information and sets out OFCOM's reasons for requiring it; and (b) where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM's functions. (4) The reasons for requiring information for statistical purposes under section 135 or 136 must set out the statistical purposes for which the information is required. (5) Except in the case of a demand made in the manner authorised by subsection (6), a demand for information required under section 135 or 136 must be contained in a notice served on the person from whom the information is required. (6) In the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under section 38, the demand may-- (a) be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who are described in the demand as the persons from whom the information is required; and (b) take the form of a general demand for a person so described to provide information when specified conditions relevant to his liability to such charges are satisfied in his case. 138 Notification of contravention of information requirements(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 135 or 136, they may give that person a notification under this section. (2) A notification under this section is one which-- (a) sets out the determination made by OFCOM; (b) specifies the requirement and contravention in respect of which that determination has been made; 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; and (b) complying with any notified requirement of which he remains in contravention. (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; and (b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued. (9) Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if-- (a) the contravention is one occurring after the time of the giving of the earlier notification; (b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or (c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention. (10) 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 requirement; 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 139(2) that the contravention to which the previous notification related did occur. 139 Penalties for contravention of information requirements(1) This section applies where-- (a) a person ("the notified person") has been given a notification under section 138; (b) OFCOM have allowed the notified person 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 person if-- (a) they are satisfied that he has, in one or more of the respects notified, been in contravention of the requirement notified under section 138; (b) he has not, during the period allowed under that section, complied with the notified requirement; and (c) no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention. (3) Where a notification under section 138 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention. (4) Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification. (5) The amount of a penalty imposed under this section is to be such amount not exceeding £50,000 as OFCOM determine to be both-- (a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed. (6) In making that determination OFCOM must have regard to-- (a) any representations made to them by the notified person; and (b) any steps taken by him towards complying with the requirements contraventions of which have been notified to him under section 138. (7) 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. (8) A penalty imposed under this section-- (a) must be paid to OFCOM; and (b) if not paid within the period fixed by them, is to be recoverable by them accordingly. (9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (5). (10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House. 140 Suspending service provision for information contraventions(1) OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available ("the contravening provider") if they are satisfied-- (a) that he is or has been in serious and repeated contravention of requirements imposed under sections 135 and 136, or either of them; (b) the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM's functions in relation to SMP apparatus conditions; (c) that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and (d) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions. (2) A direction under this section is-- (a) a direction that the entitlement of the contravening provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or (b) a direction that that entitlement is restricted in the respects set out in the direction. (3) A direction under this section-- (a) must specify the networks, services and facilities to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given. (4) A direction under this section-- (a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and (b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider's customers. (5) Those conditions may include a condition requiring the making of payments-- (a) by way of compensation for loss or damage suffered by the contravening provider's customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction. (6) If OFCOM consider it appropriate to do so (whether or not in consequence of any representations or proposals made to them), they may revoke a direction under this section or modify its conditions-- (a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine. (7) For the purposes of this section there are repeated contraventions by a person of requirements imposed under sections 135 and 136, or either of them, to the extent that-- (a) in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(2) that such a contravention did occur; and (b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of such requirements; and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements or of requirements under different sections. 141 Suspending apparatus supply for information contraventions(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 requirements imposed under section 135; (b) that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements 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 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 contraventions by a person of requirements imposed under section 135 are repeated contraventions if-- (a) in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(2) that such a contravention did occur; and (b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of such requirements; and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements. 142 Procedure for directions under ss. 140 and 141(1) Except in an urgent case, OFCOM are not to give a direction under section 140 or 141 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 one ending not less than one month after the day of the giving of the notification. (3) As soon as practicable after giving a direction under section 140 or 141 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. (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 140 or 141, 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--
143 Enforcement of directions under ss. 140 and 141(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 140; 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 141; 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 94 to 99 apply in relation to a contravention of conditions imposed by a direction under section 140 or 141 as they apply in relation to a contravention of conditions set under section 45. 144 Offences in connection with information requirements(1) A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 is guilty of an offence and shall be liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine. (2) In proceedings against a person for an offence under subsection (1) it shall be a defence for that person to show-- (a) that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but (b) that he has taken all reasonable steps to provide the required information after the end of that period. (3) A person is guilty of an offence if-- (a) in pursuance of any requirement under section 135 or 136, he provides any information that is false in any material particular; and (b) at the time he provides it, he either knows it to be false or is reckless as to whether or not it is false. (4) A person guilty of an offence under subsection (3) shall be liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both. (5) Proceedings for an offence under subsection (1) may be brought in respect of a contravention by a person of a requirement imposed under section 135 or 136 only if-- (a) OFCOM have given the person a notification under section 138 in respect of that contravention; (b) the period allowed under that section for doing the things mentioned in subsection (3) of that section has expired without the required information having been provided; and (c) OFCOM have not imposed a financial penalty under section 139 in respect of that contravention. 145 Statement of policy on information gathering(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to-- (a) the exercise of their powers under sections 135 to 136; and (b) the uses to which they are proposing to put information obtained under those sections. (2) OFCOM may from time to time revise that statement as they think fit. (3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it. (4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 135 to 144 to have regard to the statement for the time being in force under this section. 146 Provision of information by OFCOM(1) OFCOM must comply with a request made by a person for the purposes of this section-- (a) to notify the person whether or not a notification is required to be submitted by him under section 33; (b) to notify the person whether a notification submitted by him for the purposes of that section satisfies the requirements of this Chapter; (c) to provide the person with such information about his rights as may be necessary for the purpose of facilitating the negotiation by him of his right to network access; or (d) to provide the person with such information as they consider necessary to enable the applicant to apply for a direction under section 106 to be made in his case. (2) A request for the purposes of this section must be made in such manner as OFCOM may require. (3) OFCOM are not required to comply with a request under this section if (without having been asked to do so) they have already given that person the notification or information for which he is asking. (4) Any notification or information which under subsection (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the request for the notification or information was made to OFCOM. Abolition of telecommunications licensing etc.147 Repeal of provisions of Telecommunications Act 1984The following provisions of the Telecommunications Act 1984 (c. 12) shall cease to have effect-- (a) sections 5 to 8 (licensing provisions); (b) sections 9 to 11 (public telecommunications systems); (c) sections 12 to 15 (modification of licences); (d) sections 16 to 19 (enforcement of licences); and (e) sections 27A to 27L (standards of performance of designated public telecommunications operators). Local authority powers in relation to networks and services148 Powers of local authorities in connection with networks(1) A local authority may borrow money for the purpose of providing a public electronic communications network or public electronic communications service. (2) A local authority may-- (a) provide a public electronic communications network part of which is outside their area; and (b) provide a public electronic communications service even if some of the persons to whom they provide the service are outside their area. (3) In this section, a "local authority" means-- (a) in relation to England, a London borough council or a district council; (b) in relation to Wales, a county council or a county borough council; (c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39). Grants for networks and services in Northern Ireland149 Grants by Department of Enterprise, Trade and Investment(1) The Department of Enterprise, Trade and Investment may, in accordance with this section, make payments to persons engaged in, or in commercial activities connected with-- (a) the provision of electronic communications networks and electronic communications services in Northern Ireland; or (b) improving the extent, quality and reliability of such networks or services. (2) A payment shall not be made under this section unless in the opinion of the Department of Enterprise, Trade and Investment-- (a) the making of the payment is likely to achieve-- (i) one or more of the purposes set out in subsection (1); and (ii) any other purposes prescribed by regulations made by that Department with the approval of the Department of Finance and Personnel; and (b) the amount of the payment is reasonable having regard to all the circumstances. (3) Payments under this section shall-- (a) be of such amounts, and (b) be made subject to such conditions (including conditions as to repayment), as the Department of Enterprise, Trade and Investment may determine. (4) This section extends only to Northern Ireland. 150 Grants by district councils(1) This section applies where a district council in Northern Ireland consider that it would be for the benefit of their area-- (a) for a public electronic communications network or electronic communications service to be provided by a particular person; (b) for facilities to be made available by a particular person for the purposes of, or in connection with, the provision of such a network or service; or (c) for such a network or service that is being provided by a particular person, or for any such facilities that are being so made available by a particular person, to continue to be provided or made available. (2) The district council may-- (a) undertake to pay to that person, and (b) pay him, whatever sums they think appropriate for, or towards, compensating him for losses sustained in the provision of the network or service or in making the facilities available. (3) For the purposes of this section it is immaterial-- (a) in the case of a network, whether any part of the network is situated in the council's area; and (b) in the case of a service or facility, whether any of the persons to whom the service or facility is provided or made available are in that area. Interpretation of Chapter 1151 Interpretation of Chapter 1(1) In this Chapter--
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