Communications Act 2003

a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

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

is so available for the purpose of—

references to the provision of an electronic communications network include references to its establishment, maintenance or operation;

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

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.

the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;

the exercise of editorial control over the contents of signals conveyed by means of a such a network.

have been installed or stored in order to be used for that purpose; and

are available to be so used.

anything comprising speech, music, sounds, visual images or communications or data of any description; and

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.

provide a designated electronic communications network,

provide a designated electronic communications service, or

make available a designated associated facility,

providing or making available the notified network, service or facility with any significant differences, or

ceasing to provide it or to make it available,

be sent to OFCOM in such manner as OFCOM may require; and

contain all such information as OFCOM may require.

a declaration of the relevant proposal of the person giving the notification;

the time when it is intended that effect should be given to the relevant proposal;

particulars identifying the person giving the notification;

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;

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;

addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) to (e).

a declaration of his proposal to provide the network or service described in the notification or to make available the facility so described;

a declaration of his proposal to make the modifications that are so described of the network, service or facility specified in the notification; or

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.

that person is resident in a member State or has a place of business in a member State;

the notification contains a statement under subsection (8);

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

OFCOM are satisfied that adequate arrangements exist for effecting service on that person at that address.

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

identifies another person who is resident in a member State, or has a place of business in such State, as the person so authorised.

to accepting service of documents or process at that address; or

otherwise to receiving notifications at that address;

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

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).

which is contained in the notification setting out the designation; and

treats a person as having given the notification required by that subsection.

making or withdrawing a designation for the purposes of section 33, or

imposing or modifying a requirement under subsection (4) of that section,

is to be made or imposed, or

may be withdrawn or modified,

sets out the determination made by OFCOM; and

specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

making representations about the determination; and

providing OFCOM with the information which the notified person should have provided for the purposes of section 33 but has not.

by specifying a longer period in the notification; or

by subsequently, on one or more occasions, extending the specified period.

OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

they have determined that, in those circumstances, a shorter period would be appropriate; and

the shorter period has been specified in the notification.

may be given in respect of more than one contravention of section 33; and

if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

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

the earlier notification has been withdrawn without a penalty having been imposed by reference to the notified contravention.

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

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.

a person (“the notified provider”) has been given a notification under section 35;

OFCOM have allowed the notified provider an opportunity of making representations about the notified determination; and

the period allowed for the making of the representations has expired.

that he has, in one or more of the respects notified, been in contravention of section 33; and

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.

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

must fix a reasonable period for the taking of the steps required by the notification.

for an injunction;

for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

for any other appropriate remedy or relief.

a person (“the notified provider”) has been given a notification under section 35;

OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

the period allowed for the making of the representations has expired.

has, in one or more of the respects notified, been in contravention of section 33; and

has not, during the period allowed under section 35, provided OFCOM with all the information which he should have provided to remedy the contravention.

appropriate; and

proportionate to the contravention in respect of which it is imposed.

any representations made to them by the notified provider; and

any steps taken by him towards complying with his obligations under section 33.

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

in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

must be paid to OFCOM; and

if not paid within the period fixed by them, is to be recoverable by them accordingly.

in respect of the network, service or facility provided or made available by him,

in respect of the application to him of a universal service condition relating to matters mentioned in section 66(3),

in respect of the application to him of an SMP apparatus condition, or

in respect of the application of the electronic communications code in his case,

providing an electronic communications network of a description which is, at that time, designated for the purposes of this section;

providing an electronic communications service of a description which is, at that time, so designated;

making available an associated facility of a description which is, at that time, so designated;

a person who without being a communications provider is designated in accordance with regulations under section 66;

a supplier of apparatus to whom an SMP apparatus condition applies; or

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.

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

the charge is fixed in accordance with those charging principles.

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);

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;

that the relationship between meeting the cost of carrying out those functions and the amounts of the charges is transparent;

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

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).

the relevant Chapter 1 functions;

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);

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

the function of taking any steps that OFCOM consider it necessary to take—

OFCOM’s functions under sections 33 to 37 and 44;

the setting, modification and enforcement of conditions under section 45;

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;

the monitoring of compliance with those requirements and with any such conditions;

the functions conferred on OFCOM by or under section 55;

their functions under section 105;

their functions under sections 106 to 119;

their functions under sections 185 to 191;

securing international co-operation in relation to the regulation of electronic communications networks, electronic communications services and associated facilities;

securing the harmonisation and standardisation of the regulation of electronic communications networks, electronic communications services and associated facilities;

market analysis and any monitoring of the controls operating in the markets for electronic communications networks, electronic communications services and associated facilities;

OFCOM’s functions under this section and sections 39 to 43.

the regulation of the provision of electronic communications networks or electronic communications services;

the regulation of the making available of associated facilities;

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;

the mechanisms in place for resolving disputes between such consumers and communications providers or persons who make such facilities available.

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;

power to provide for different charges to be imposed in that case on different descriptions of persons; and

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.

the aggregate amounts of the administrative charges for that year that have been received by OFCOM;

the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and

the cost to OFCOM of carrying out the functions mentioned in subsection (5).

the period beginning with the commencement of this section and ending with the next 31st March; or

any subsequent period of twelve months beginning with 1st April.

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

includes power, by setting it out in that notification, to fix the time at which the charge is to become due to OFCOM.

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;

the universal service condition in respect of which it is fixed does not apply in that person’s case;

the SMP apparatus condition in respect of which it is fixed does not apply in that person’s case; or

the electronic communications code does not apply in that person’s case.

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;

to the application of a universal service condition to a person for a part of the year so falling;

to a person’s being a person to whom an SMP apparatus condition applies for a part of the year so falling; or

to the application of the electronic communications code in a person’s case during a part of the year so falling.

the imposition of the charge, and

the amount of the charge,

sets out the determination made by OFCOM; and

specifies the period during which the person notified has an opportunity of doing the things specified in subsection (4).

making representations about the notified determination; and

paying the unpaid charge or (as the case may be) the amount outstanding.

by specifying a longer period in the notification; or

by subsequently, on one or more occasions, extending the specified period.

OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

they have determined that, in those circumstances, a shorter period would be appropriate; and

the shorter period has been specified in the notification.

may be given in respect of contraventions of more than one requirement to pay an administrative charge; and

if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates; or

the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.

a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of a requirement to pay an administrative charge; and

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 41(2) that the contravention to which the previous notification related did occur.

a person (“the notified charge payer”) has been given a notification under section 40;

OFCOM have allowed the notified charge payer an opportunity of making representations about the notified determination; and

the period allowed for the making of the representations has expired.

has, in one or more of the respects notified, been in contravention of a requirement to pay an administrative charge fixed under section 38; and

has not, during the period allowed under section 40, paid the whole of the notified amount outstanding.

appropriate; and

proportionate to the contravention in respect of which it is imposed.

any representations made to them by the notified charge payer; and

any steps taken by him towards paying the amounts that he was notified under section 40 were outstanding.

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

in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

must be paid to OFCOM; and

if not paid within the period fixed by them, is to be recoverable by them accordingly.

that he is or has been in serious and repeated contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);

that the contraventions are not contraventions relating only to charges in respect of the application to the contravening provider of SMP apparatus conditions;

that the bringing of proceedings for the recovery of the amounts outstanding has failed to secure complete compliance by the contravening provider with the requirements to pay the charges fixed in his case, or has no reasonable prospect of securing such compliance;

that an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.

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

a direction that that entitlement is restricted in the respects set out in the direction.

must specify the networks, services and facilities to which it relates; and

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.

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

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.

by way of compensation for loss or damage suffered by the contravening provider’s customers as a result of the direction; or

in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

notified the contravening provider of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;

provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and

considered every representation and proposal made to them during the period allowed by them for the contravening provider to take advantage of that opportunity.

with effect from such time as they may direct;

subject to compliance with such requirements as they may specify; and

to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.

in the case of a previous notification given to that person under section 40, OFCOM have determined for the purposes of section 41(2) that such a contravention did occur; and

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 the same or different failures to pay administrative charges.

while his entitlement to do so is suspended by a direction under section 42; or

in contravention of a restriction contained in such a direction.

on summary conviction, to a fine not exceeding the statutory maximum;

on conviction on indictment, to a fine.

a breach of the duty that causes that person to sustain loss or damage, and

an act which— shall be actionable at the suit or instance of that person.

every designation by them for the purposes of section 33 or 38;

every withdrawal by them of such a designation;

every notification given to them under section 33; and

every notification treated as given to them under that section by a transitional provision made under subsection (12) of that section.

the times at which the register is for the time being available for public inspection; and

the fees that must be paid for, or in connection with, an inspection of the register.

during such hours, and

on payment of such fees,

a general condition; or

a condition of one of the following descriptions—

an SMP services condition; or

an SMP apparatus condition.

are authorised or required by one or more of sections 87 to 92; or

in the case of a condition applying to a person falling within section 46(8)(b), correspond to provision authorised or required by one or more of sections 87 to 89.

power to impose a requirement on the person or persons to whom the condition is applied to comply with such directions with respect to the matters to which the condition relates as may be given from time to time by OFCOM or by another person specified in the condition;

power to impose an obligation with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;

power, for the purposes of provision made by virtue of either of the preceding paragraphs, to confer a discretion exercisable from time to time by OFCOM or by another person specified in the condition or determined in accordance with provision contained in it;

power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and

power to revoke or modify the conditions for the time being in force.

to provide, in whole or in part, any electronic communications network or electronic communications service; or

to make available, in whole or in part, any associated facilities.

to every person providing an electronic communications network or electronic communications service; or

to every person providing such a network or service of a particular description specified in the condition.

to every person to whom such a condition is required to apply under section 77; or

to every such person who is of a particular description specified in the condition.

except in the case of a condition relating to matters mentioned in subsection (3) of section 66, must be a communications provider designated in accordance with regulations under that section; and

in that excepted case, must be a communications provider so designated or a person who is not such a provider but who is so designated for the purposes only of conditions relating to those matters.

in the case of a condition falling within section 74(1), may be any person whatever; and

in any other case, must be a person who provides an electronic communications network or makes associated facilities available.

be a communications provider or a person who makes associated facilities available; and

fall within subsection (8).

he is a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications networks, electronic communications services or associated facilities (a “services market”); or

it appears to OFCOM that he is a person on whom it is necessary, for the purpose of securing compliance with an international obligation of the United Kingdom, to impose a condition containing provision that corresponds to provision which, in the case of a person falling within paragraph (a), must be made (or may be made) under any of sections 87 to 89.

a person who supplies electronic communications apparatus; and

a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications apparatus (an “apparatus market”).

set a condition under section 45, or

modify such a condition,

objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates;

not such as to discriminate unduly against particular persons or against a particular description of persons;

proportionate to what the condition or modification is intended to achieve; and

in relation to what it is intended to achieve, transparent.

the way in which conditions are to be set or modified under section 45 is by the publication of a notification setting out the conditions or modifications; and

the way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.

stating that they are proposing to set, modify or revoke the conditions that are specified in the notification;

setting out the effect of those conditions, modifications or revocations;

giving their reasons for making the proposal; and

specifying the period within which representations may be made to OFCOM about their proposal.

they have considered every representation about the proposal that is made to them within the period specified in the notification; and

they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

in the case of a notification setting general conditions, to the attention of such persons as OFCOM consider appropriate; and

in any other case, to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the contents of the notification.

a condition set under section 45 has effect by reference to directions, approvals or consents given by a person (whether OFCOM themselves or another); and

that person is proposing to give a direction, approval or consent that affects the operation of that condition or to modify or withdraw a direction, approval or consent so as to affect the condition’s operation.

objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates;

not such as to discriminate unduly against particular persons or against a particular description of persons;

proportionate to what it is intended to achieve; and

in relation to what it is intended to achieve, transparent.

stating that there is a proposal to give, modify or withdraw it;

identifying the person whose proposal it is;

setting out the direction, approval or consent to which the proposal relates;

setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;

giving reasons for the making of the proposal; and

specifying the period within which representations may be made about the proposal to the person whose proposal it is.

the person giving the notification is satisfied that there are exceptional circumstances justifying the use of a shorter period, and

the notification is not one that is required to be sent to the European Commission under section 50(4) or (5),

a person other than OFCOM are proposing to give, modify or withdraw a direction, approval or consent, and

the condition for the purposes of which the direction, approval or consent has effect, or will have effect, provides for notifications of proposals for the purposes of that condition to be given by that person,

he has considered every representation about the proposal that is made to him within the period specified in the notification; and

he has had regard to every international obligation of the United Kingdom (if any) which has been notified to OFCOM for the purposes of this paragraph by the Secretary of State.

a copy of every notification published under section 48(1) or (2);

a copy of every notification published under section 49(4);

a copy of every direction, approval or consent given for the purpose of giving effect to a proposal required to be published under section 49(4); and

a copy of every instrument modifying or withdrawing a direction, approval or consent for the purpose of giving effect to such a proposal.

a copy of every notification published under section 48(1) with respect to an SMP services condition;

a copy of every direction, approval or consent given for the purposes of such a condition; and

a copy of every instrument modifying or withdrawing such a direction, approval or consent.

relates to the setting, modification or revocation of an access-related condition falling within section 73(2) or (4) or of an SMP services condition; and

is a proposal which, in OFCOM’s opinion, would affect trade between member States.

relates to the giving of a direction, approval or consent for the purposes of— or to the modification or withdrawal of such a direction, approval or consent; and

is a proposal which, in OFCOM’s opinion, would affect trade between member States.

that person must refer to OFCOM the question whether, in their opinion, the proposal would affect trade between member States;

OFCOM must immediately determine that question on that reference; and

the relevant person must send a copy of the notification to the European Commission and to the regulatory authorities of every other member State if OFCOM determine that the proposal is one which, in their opinion, would affect trade between member States.

every notification published under section 48(1) or (2) or 49(4),

every direction, approval or consent given for the purposes of a condition set under section 45, and

every instrument modifying or withdrawing such a direction, approval or consent,

the notification or the notified proposal relates to an SMP apparatus condition, or to a direction, approval or consent for the purposes of such a condition; or

the direction, approval or consent given, modified or withdrawn is for the purposes of such a condition.

except in a case falling within paragraph (b), means the person by whom it is published or (as the case may be) the person by whom it has been or is to be given, modified or withdrawn; and

in the case of a direction, approval or consent given, modified or withdrawn by a person other than OFCOM for the purpose of giving effect to a proposal published by OFCOM under section 49(4), means OFCOM.

conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;

conditions making such provision as OFCOM consider appropriate for securing service interoperability and for securing, or otherwise relating to, network access;

conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;

conditions for giving effect to determinations or regulations made under section 71;

conditions requiring or regulating the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;

conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;

conditions requiring compliance with relevant international standards.

relate to the supply, provision or making available of goods, services or facilities in association with the provision of public electronic communications services; and

give effect to Community obligations to provide protection for such end-users in relation to the supply, provision or making available of those goods, services or facilities.

to set conditions that are made applicable according to the identity of the provider of a network or service; or

to set conditions that differ according to the identity of the provider of the networks or services to which they relate.

section 73, or

any of sections 87 to 92,

with the provision of an electronic communications network or electronic communications service; or

with, or with the receipt of, anything conveyed or provided by means of such a network or service.

public communications providers, or

such descriptions of them as OFCOM consider appropriate,

the handling of complaints made to public communications providers by any of their domestic and small business customers;

the resolution of disputes between such providers and any of their domestic and small business customers;

the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

the information about service standards and about the rights of domestic and small business customers that is to be made available to those customers by public communications providers;

any other matter appearing to OFCOM to be necessary for securing effective protection for the domestic and small business customers of such providers.

that the procedures established and maintained for the handling of complaints and the resolution of disputes are easy to use, transparent and effective;

that domestic and small business customers have the right to use those procedures free of charge; and

that where public communications providers are in contravention of conditions set in accordance with the preceding provisions of this section, the providers follow such procedures as may be required by the general conditions.

applicable to the providers to whom the conditions apply; and

for the time being approved by OFCOM for the purposes of this subsection.

to establish and maintain procedures for resolving disputes; and

to secure that those procedures are, and continue to be, approved by OFCOM.

himself a communications provider; nor

a person who is such a customer in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise).

approve modifications that have been made to an approved code;

withdraw their approval from a code; or

give notice that the withdrawal of their approval will take effect from such time as may be specified in the notification unless such modifications of the code as are specified in the notification are made before that time.

whether to approve a code of practice, or

whether or in what manner to exercise their powers under subsections (2) and (3) of this section,