Legalize / United Kingdom / Public General Act

Communications Act 2003

Type Public General Act

Publication 2003-07-17

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles 1

Reform history JSON API

(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).

93C

(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.

93D

(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.

Rights of end-users in relation to contract termination

124U

(1) Where an end-user has (whether under an enactment or at common law) the right to terminate a contract for a public electronic communications service before the end of the agreed contract period—

(a) no compensation is to be due by the end-user, except compensation for any retained terminal equipment;

(b) if the end-user chooses to retain terminal equipment to which the contract relates—

(i) the compensation payable for the equipment is not to exceed the amount determined under subsection (2); and

(ii) on payment of the compensation, the provider must lift any conditions restricting the use of the terminal equipment on an electronic communications network of another communications provider.

(2) The maximum amount of compensation is whichever is the lesser of the following—

(a) the remaining part of any fee for the service until the end of the agreed contract period; or

(b) a proportion of the value of the terminal equipment, as agreed at the time of the conclusion of the contract, corresponding to the proportion of the agreed contract period that remains unexpired.

(3) Where the public electronic communications service is a transmission service involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction, subsection (1) does not apply unless the end-user is a qualifying end-user, as defined by section 51(9).

(4) Where the contract referred to in subsection (1) is, or is included in, a bundled contract, subsection (1) applies to all the elements of the bundled contract, unless the end-user—

(a) falls within paragraph (b) or (c) of the definition of “qualifying end-user” in section 51(9); and

(b) has waived the rights conferred by this subsection.

124V

(1) Subsection (2) applies where—

(a) an individual, acting for purposes other than those of a business, has entered into a bundled contract;

(b) the individual has (whether under an enactment or at common law) the right to terminate any element of the bundled contract before the end of the agreed contract period because of a lack of conformity with the contract or a failure to supply.

(2) The individual has the right to terminate all elements of the bundled contract.

124W

(1) Sections 96A to 96C apply in relation to a contravention by the provider of a public electronic communications service of the requirements imposed on the provider by sections 124U and 124V as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition, but with the following modifications.

(2) Section 96A(2)(f) and (g) (OFCOM directions) do not apply.

(3) Section 96A(5) to (7) (action under the Competition Act 1998) do not apply.

(4) The amount of a penalty imposed under sections 96A to 96C, as applied by this section, other than a penalty falling within section 96B(4), is to be such amount not exceeding £2 million as OFCOM determine to be—

(a) appropriate; and

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

134AC

(1) The Secretary of State must have regard to reports received from OFCOM under section 134A, or published by OFCOM under section 134AA, when exercising functions for any of the relevant purposes.

(2) The relevant purposes are—

(a) the allocation of public funds for the bringing into operation of electronic communications networks;

(b) the design of national broadband plans;

(3) Any other public authority must have regard to reports published by OFCOM under section 134AA when exercising functions for either of the purposes specified in subsection (2)(a) and (b).

The Gaelic Media Service

Powers to enforce TV licensing

Application of the Competition Act 1998 to news provision

Interpretation of this Part

Compensation

Contents of code about obligations to limit internet access

211A

(1) This section has effect for the interpretation of section 211.

(2) “Regulated electronic programme guide” means an electronic programme guide which—

(a) is provided, under a licence to provide television licensable content services or digital additional television services, by a person who was providing an electronic programme guide under that licence immediately before IP completion day,

(b) is provided by a person designated by the Secretary of State by regulations or by a person having a prescribed connection with a person so designated, or

(3) In subsection (2) “prescribed” means prescribed by the regulations.

(4) Regulations under subsection (2)(b) may only designate a person who, at the time when the regulations are made—

(a) is providing an electronic programme guide that is used by members of the public in the United Kingdom as a facility for obtaining access to television programme services, or

(b) is providing, or has informed OFCOM of an intention to provide, an electronic programme guide with a view to its use by members of the public in the United Kingdom as such a facility.

(5) The electronic programme guides that are to be taken for the purposes of this section to be used by members of the public include any electronic programme guide that—

(a) is used, or available for use, only by persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision, but

(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.

(6) Before making regulations under subsection (2), the Secretary of State must consult OFCOM.

(7) In this section “electronic programme guide” has the meaning given by section 310(8).

211B

(1) In section 211 “exempt foreign service” means—

(a) a service provided by a person who is for the purposes of the European Convention on Transfrontier Television within the jurisdiction of a CTT State other than the United Kingdom, or

(b) any of the following services—

(i) the services known as RTÉ1 and RTÉ2 provided by Raidió Teilifís Éireann, and

(ii) the service known as TG4 provided by Teilifís na Gaeilge.

(2) The Secretary of State may by regulations amend subsection (1)(b)—

(a) by adding a reference to a service appearing to the Secretary of State to be a public service channel established in Ireland,

(b) by amending the description of a service for the time being specified in that provision, or

(3) In this section “CTT State” means a State which is for the time being a party to the European Convention on Transfrontier Television.

Repeal of exclusion for newspaper mergers from general merger controls

Extension of special public interest regime for certain media mergers

Adaptation of role of OFT in special public interest regime

Public consultation in relation to media mergers

General advisory functions of OFCOM in relation to media mergers

Review of media ownership

Service of notifications and other documents

Notifications and documents in electronic form

Retention by OFCOM of amounts paid under Wireless Telegraphy Act 2006

Competition tests applying to OFCOM's decisions: EU principles etc

6A

(1) Paragraph 6(6) does not require OFCOM to secure that there is no inconsistency with a principle or decision referred to in paragraph 6(7)(a)—

(a) so far as the principle or decision is excluded from the law of England and Wales, Scotland and Northern Ireland on or after IP completion day, or

(b) so far as doing so would be incompatible with OFCOM's duty to secure that there is no inconsistency with a decision referred to in paragraph 6(7)(b).

(2) For the purposes of sub-paragraph (1)(a), a principle or decision is to be treated as not excluded from the law of England and Wales, Scotland and Northern Ireland if it is excluded only by virtue of an exclusion or revocation in the Competition (Amendment etc.) (EU Exit) Regulations 2019.

(3) Paragraph 6(6) does not require OFCOM to secure that there is no inconsistency with a principle or decision referred to in paragraph 6(7)(a) if OFCOM think that it is appropriate to act otherwise in the light of one or more of the following—

(a) differences between the competition tests and Article 101 of the Treaty on the Functioning of the European Union as it had effect immediately before IP completion day;

(b) differences between markets in the United Kingdom and markets in the European Union;

(c) developments in forms of economic activity since the time when the principle or decision referred to in paragraph 6(7)(a) was laid down or made;

(d) generally accepted principles of competition analysis or the generally accepted application of such principles;

(e) a principle laid down, or decision made, by the European Court on or after IP completion day;

(f) the particular circumstances under consideration.

PART 4A — Code rights in respect of land connected to leased premises: unresponsive occupiers

27A

This Part of this code makes provision for the court to make an order imposing an agreement which provides that code rights are exercisable by an operator for the purpose of providing an electronic communications service to leased premises where—

(a) the rights are required in respect of land which is connected to the leased premises, and

(b) the occupier or another person with an interest in the land has not responded to repeated notices given by the operator seeking agreement to confer or otherwise be bound by the rights.

27B

(1) Paragraphs 27C and 27D apply where—

(a) premises within the scope of this Part are occupied under a lease (the “target premises”),

(b) the lessee in occupation requests an operator to provide an electronic communications service to the target premises,

(i) to confer on the operator a code right in respect of connected land, or

(ii) otherwise to be bound by such a code right exercisable by the operator,

(d) the operator has, on or after the day on which section 1 of the Telecommunications Infrastructure (Leasehold Property) Act 2021 comes fully into force, given the required grantor a notice in accordance with paragraph 20(2) of this code seeking that agreement (the “request notice”), and

(e) the required grantor has not responded to the operator.

(2) Premises are within the scope of this Part if they—

(a) form part of a multiple dwelling building (see paragraph 27I(1)), or

(b) are other premises of a description specified in regulations made by the Secretary of State.

(3) In this Part “connected land”, in relation to the target premises, means land which—

(a) is in common ownership with the target premises (see paragraph 27I(2)), and

(b) is held or used for access to, or otherwise in connection with, the target premises.

(4) For the purposes of this paragraph, the required grantor responds to the operator if the required grantor—

(a) agrees or refuses, in writing, to confer or otherwise be bound by the code right specified in the request notice on the terms that the operator seeks, or

(b) otherwise acknowledges the request notice in writing.

27C

(1) Before applying to the court for an order under this Part (a “Part 4A order”) (see paragraph 27E(2)) the operator must, in accordance with this paragraph, give the required grantor—

(a) two warning notices, and

(b) a final notice.

(2) A “warning notice” is a notice in writing which—

(a) includes a copy of the request notice,

(b) states that it is the first or (as the case may be) second of three notices that, unless the required grantor responds to the operator, will allow the operator to apply for a Part 4A order, and

(3) The first warning notice may only be given after the end of the period of seven days beginning with the day on which the request notice was given.

(4) The second warning notice may only be given after the end of the period of seven days beginning with the day on which the first one was given.

(5) A “final notice” is a notice in writing which—

(a) includes a copy of the request notice,

(b) states that unless the required grantor responds to the operator before the end of the period of 14 days beginning with the day on which the final notice is given, the operator intends to apply for a Part 4A order, and

(6) A final notice may only be given within the permitted period.

(7) The “permitted period” means the period which—

(a) begins immediately after the end of whichever of the following ends last—

(i) the period of seven days beginning with the day on which the second warning notice was given;

(ii) the period of 28 days beginning with the day on which the request notice was given, and

(b) ends at the end of the period of 28 days beginning with the day on which the second warning notice was given.

(8) The Secretary of State may by regulations specify other conditions that the operator must satisfy before giving the required grantor a final notice.

27D

(1) The operator may apply to the court for a Part 4A order in relation to the code right specified in the request notice if—

(a) the operator has satisfied the notice requirements set out in paragraph 27C,

(b) the period of 14 days beginning with the day on which the final notice was given has ended,

(d) the operator has satisfied any other specified conditions.

(2) An application for a Part 4A order may not be made after the end of the specified period beginning with the day on which the final notice is given.

(3) The operator must give the required grantor notice of an application for a Part 4A order.

(4) For the purposes of this paragraph, the required grantor responds to the operator if the required grantor—

(a) agrees or refuses, in writing, to confer or otherwise be bound by the code right specified in the request notice on the terms that the operator seeks, or

(b) otherwise acknowledges, in writing, the request notice, a warning notice or the final notice.

(5) In this paragraph “specified” means specified in regulations made by the Secretary of State.

27E

(1) The court may make a Part 4A order if (and only if)—

(a) it is satisfied that the requirements for applying for the order have been met, and

(b) the required grantor has not objected to the making of the order.

(2) A Part 4A order is an order which imposes on the operator and the required grantor an agreement between them—

(a) by which the required grantor confers on the operator the code right identified in the request notice in respect of the connected land so identified, or

(b) which provides for the code right identified in that notice, which is exercisable by the operator in respect of the connected land so identified, otherwise to bind the required grantor.

(3) In this code, a “Part 4A code right” means a code right which is conferred by or otherwise binds the required grantor pursuant to an agreement imposed by a Part 4A order.

(4) The terms of an agreement imposed by a Part 4A order are to be those specified in regulations made by the Secretary of State.

(5) Regulations under sub-paragraph (4) must, in particular, provide for an agreement to include terms—

(a) relating to the provision by the operator to the required grantor of details of the works to be carried out in the exercise of the Part 4A code right (“the works”);

(b) relating to the obtaining by the operator of any consent, permit, licence, permission, authorisation or approval which is necessary for the works to be carried out;

(c) relating to the giving of notice by the operator to the required grantor or other specified persons before entering on the connected land in the exercise of the Part 4A code right or carrying out the works;

(d) restricting the operator's right to enter on the connected land to specified times, except in cases of emergency;

(e) as to the manner in which the works are to be carried out by the operator;

(f) relating to the restoration by the operator of the connected land at the end of the works, to the reasonable satisfaction of the required grantor;

(g) relating to the need for insurance cover or indemnification of the required grantor;

(h) relating to the maintenance or upgrading by the operator of apparatus installed on, under or over the connected land in the exercise of the Part 4A code right (“the apparatus”);

(i) imposing requirements or restrictions on the required grantor for the purposes of—

(i) preventing damage to the apparatus,

(ii) facilitating access to the apparatus for the operator, or

(iii) otherwise preventing or minimising disruption to the operation of the apparatus;

(j) relating to assignment of the agreement;

(k) aimed at ensuring that nothing done by the operator in the exercise of the Part 4A code right unnecessarily prevents or inhibits the provision of an electronic communications service by any other operator.

(6) Before making regulations under sub-paragraph (4), the Secretary of State must consult—

(a) operators,

(b) persons appearing to the Secretary of State to represent owners of interests in land who are likely to be affected by the regulations, and

(7) In sub-paragraph (5), “specified” mean specified, or of a description specified, in the regulations.

27F

(1) A Part 4A code right may be exercised by the operator in respect of the connected land for the provision of an electronic communications service to—

(a) the target premises, and

(b) other premises, but only if the provision of the service to the other premises in addition to the target premises imposes no additional burden on the required grantor.

(2) For the purposes of sub-paragraph (1)(b), an additional burden includes anything that—

(a) has an additional adverse effect on the required grantor's enjoyment of the connected land, or

(b) causes additional loss, damage or expense to the required grantor.

27G

(1) A Part 4A code right ceases to be conferred on the operator by, or otherwise to bind, the required grantor—

(a) if a replacement agreement comes into effect, in accordance with that agreement,

(b) if the court decides to refuse an application by the operator for the imposition of a replacement agreement, in accordance with that decision, or

(c) if the right has not ceased to have that effect as mentioned in paragraph (a) or (b) before the end of the specified period beginning with the day on which the agreement imposed by the Part 4A order comes into effect, at the end of that period.

(2) In sub-paragraph (1) a “replacement agreement”, in relation to a Part 4A code right, means an agreement under Part 2 by which the required grantor confers a code right on the operator, or otherwise agrees to be bound by a code right which is exercisable by the operator, where that right is in respect of the same land as the Part 4A code right.

(3) In sub-paragraph (1)(c) “specified period” means the period, of no more than 18 months, specified in regulations made by the Secretary of State.

(4) The required grantor has the right, subject to and in accordance with Part 6 of this code, to require the operator to remove any electronic communications apparatus placed on the connected land in the exercise of a Part 4A code right which has ceased to have effect, or otherwise to bind, the required grantor.

Pre-consolidation amendments

27H

(1) This paragraph applies where the court has made a Part 4A order.

(2) The court may, on the application of the required grantor, order the operator to pay compensation to the required grantor for any loss or damage that has been sustained or will be sustained by the required grantor as a result of the exercise by the operator of the Part 4A code right.

(3) An application for an order under this paragraph may be made at any time after the Part 4A order is made (including at a time when the Part 4A code right has ceased to be conferred on the operator by, or otherwise to bind, the required grantor).

(4) An order under this paragraph may—

(a) specify the amount of compensation to be paid by the operator, or

(b) give directions for the determination of any such amount.

(5) Directions under sub-paragraph (4)(b) may provide—

(a) for the amount of compensation to be agreed between the operator and the required grantor;

(b) for any dispute about that amount to be determined by arbitration.

(6) An order under this paragraph may provide for the operator—

(a) to make a lump sum payment,

(b) to make periodical payments,

(d) to make a payment or payments in such other form or at such other time or times as the court may direct.

(7) Paragraph 84 makes further provision about compensation in the case of a Part 4A order.

27I

(1) In this Part—

“connected land” has the meaning given by paragraph 27B(3);

“multiple dwelling building” means a building which contains two or more sets of premises which are used as, or intended to be used as, a separate dwelling;

“Part 4A order” has the meaning given by paragraph 27C(1);

“premises” includes a part of premises;

“request notice” has the meaning given by paragraph 27B(1)(d);

“required grantor” has the meaning given by paragraph 27B(1)(c);

“target premises” has the meaning given by paragraph 27B(1)(a).

(2) For the purposes of this Part, land is in “common ownership” with the target premises if a person with a relevant interest in the land also has a relevant interest (whether or not of the same sort) in the target premises.

(3) For the purposes of sub-paragraph (2), a person has a “relevant interest” in land if—

(a) the person owns the freehold estate in the land (or, in relation to Scotland, is the owner of the land), or

(b) the person is the lessee of the land.

Codes of practice about security measures etc

105E

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;

Issuing codes of practice about security measures

105F

(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

(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.

Withdrawing codes of practice about security measures

105G

(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.

Effects of codes of practice about security measures

105H

(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).

Duty to explain failure to act in accordance with code of practice

105I

(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

(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.

Security of public electronic communications networks and services: designated vendor directions

Designated vendor directions

105Z1

(1) The Secretary of State may give a direction under this section (“a designated vendor direction”) to a public communications provider.

(2) The Secretary of State may give a designated vendor direction only if the Secretary of State considers that—

(a) the direction is necessary in the interests of national security; and

(b) the requirements imposed by the direction are proportionate to what is sought to be achieved by the direction.

(3) A designated vendor direction may impose requirements on a public communications provider with respect to the use, in connection with a purpose mentioned in subsection (4), of goods, services or facilities supplied, provided or made available by a designated vendor specified in the direction.

(4) The purposes referred to in subsection (3) are—

(a) in the case of a provider of a public electronic communications network, the provision of that network;

(b) in the case of a provider of a public electronic communications service, the provision of that service;

(c) in the case of a person who makes available facilities that are associated facilities by reference to a public electronic communications network or public electronic communications service, the making available of those facilities; or

(d) in the case of a provider of a public electronic communications network or public electronic communications service, enabling persons to make use of that network or service.

(5) A designated vendor direction must specify—

(a) the public communications provider or providers to which the direction is given;

(b) the reasons for the direction;

(6) The requirement in subsection (5)(b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the direction would be contrary to the interests of national security.

(7) A public communications provider to which a designated vendor direction is given must comply with the direction.

(8) A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.

Further provision about requirements

105Z2

(1) This section makes further provision about the requirements that may be imposed by a designated vendor direction on a public communications provider.

(2) The requirements may include, among other things—

(a) requirements prohibiting or restricting the use of goods, services or facilities supplied, provided or made available by a designated vendor specified in the direction;

(b) requirements prohibiting the installation of such goods or the taking up of such services or facilities;

(d) requirements about modifying such services;

(e) requirements about the manner in which such goods, services or facilities may be used.

(3) A requirement in a designated vendor direction may, among other things—

(a) relate to the use of goods, services or facilities in connection with a specified function of—

(i) the public electronic communications network provided by the provider;

(ii) the public electronic communications service provided by the provider; or

(iii) an associated facility made available by the provider that is an associated facility by reference to such a network or service (as the case may be);

(b) relate to the use of goods, services or facilities in a specified part of—

(i) the public electronic communications network provided by the provider;

(ii) the public electronic communications service provided by the provider; or

(iii) an associated facility made available by the provider that is an associated facility by reference to such a network or service (as the case may be).

(4) A requirement in a designated vendor direction may make provision by reference to, among other matters—

(a) the source of goods, services or facilities that are supplied, provided or made available by a designated vendor specified in the direction;

(b) the time at which goods, services or facilities were developed or produced (which may be a time before the passing of the Telecommunications (Security) Act 2021);

(c) the time at which goods, services or facilities were procured by, or supplied, provided or made available to, the public communications provider (which may be a time before the passing of that Act).

(5) A designated vendor direction may impose requirements that apply in specified circumstances (for example where the public communications provider is using goods, services or facilities supplied, provided or made available by one or more other specified persons).

(6) A designated vendor direction may provide for exceptions to a requirement.

(7) A requirement to do a thing must specify the period within which the thing is to be done.

(8) A period specified under subsection (7) must be such period as appears to the Secretary of State to be reasonable.

(9) In this section—

(a) a reference to a facility includes a reference to a facility, element or service that is an associated facility;

(b) “specified” means specified in a designated vendor direction.

Consultation about designated vendor directions

105Z3

(1) Before giving a designated vendor direction, the Secretary of State must consult—

(a) the public communications provider or providers which would be subject to the proposed direction, and

(b) the person or persons who would be specified as a designated vendor or vendors in the proposed direction in accordance with section 105Z1 (3),

so far as it is reasonably practicable to do so.

(2) The requirement in subsection (1) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

Notice of designated vendor directions

105Z4

(1) Where a designated vendor direction is given to a public communications provider, the Secretary of State must send a copy of the direction to the designated vendor or vendors specified in the direction, if or to the extent that it is reasonably practicable to do so.

(2) The requirement in subsection (1) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the direction to that designated vendor would be contrary to the interests of national security.

(3) The Secretary of State may exclude from the copy of the direction anything the disclosure of which the Secretary of State considers—

(a) would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or

(b) would be contrary to the interests of national security.

Variation and revocation of designated vendor directions

105Z5

(1) The Secretary of State must review a designated vendor direction from time to time.

(2) The Secretary of State may—

(a) vary a designated vendor direction;

(b) revoke a designated vendor direction (whether wholly or in part).

(3) The Secretary of State may vary a designated vendor direction only if—

(a) the Secretary of State considers that the direction as varied is necessary in the interests of national security; and

(b) the Secretary of State considers that the requirements imposed by the direction as varied are proportionate to what is sought to be achieved by the direction.

(4) Before varying a designated vendor direction, the Secretary of State must consult—

(a) the public communications provider or providers which would be subject to the direction as proposed to be varied, and

(b) the person or persons who would be affected as a designated vendor or vendors by the direction as proposed to be varied,

so far as it is reasonably practicable to do so.

(5) The requirement in subsection (4) does not apply if or to extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

Notice of variation and revocation of designated vendor directions

105Z6

(1) The Secretary of State must give notice of a variation of a designated vendor direction under section 105Z5 to the public communications provider or providers subject to the direction as varied.

(2) The notice of variation must specify—

(a) how the direction is varied;

(b) the reasons for the variation;

(3) The requirement in subsection (2)(b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(4) The Secretary of State must send a copy of the notice of variation to the designated vendor or vendors specified in the direction as varied, if or to the extent that it is reasonably practicable to do so.

(5) The requirement in subsection (4) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the notice of variation to that designated vendor would be contrary to the interests of national security.

(6) The Secretary of State may exclude from the copy of the notice of variation anything the disclosure of which the Secretary of State considers—

(a) would, or would be likely to, prejudice to an unreasonable degree the commercial interests of the public communications provider or providers subject to the direction as varied; or

(b) would be contrary to the interests of national security.

(7) The Secretary of State must give notice of a revocation of a designated vendor direction under section 105Z5 to the public communications provider or providers subject to the direction as it had effect before the revocation.

(8) The notice of revocation must specify—

(a) the time at which the revocation comes into force;

(b) if the direction is partly revoked, what part of the direction is revoked.

(9) The Secretary of State must send a copy of the notice of revocation to the designated vendor or vendors specified in the direction as it had effect before the revocation, if or to the extent that it is reasonably practicable to do so.

(10) The requirement in subsection (9) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the notice of revocation to that designated vendor would be contrary to the interests of national security.

(11) Where the direction is partly revoked, the Secretary of State may exclude from the copy of the notice of revocation anything the disclosure of which the Secretary of State considers—

(a) would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or

(b) would be contrary to the interests of national security.

Designated vendor directions: plans for compliance

105Z7

(1) This section applies where a designated vendor direction has been given to a public communications provider (and has not been revoked).

(2) The Secretary of State may from time to time require the public communications provider—

(a) to prepare a plan setting out—

(i) the steps that the provider intends to take in order to comply with such requirements imposed by the direction as the Secretary of State may specify; and

(ii) the timing of those steps; and

(b) to provide the plan to the Secretary of State.

(3) The Secretary of State may also require that the plan be provided to OFCOM.

(4) The Secretary of State may specify the period within which a plan required under this section is to be provided to the Secretary of State or OFCOM.

(5) A period specified under subsection (4) must be such period as appears to the Secretary of State to be reasonable.

Designation notices

105Z8

(1) The Secretary of State may issue a notice (“a designation notice”) designating a person for the purposes of a designated vendor direction.

(2) A designation notice may designate more than one person.

(3) The Secretary of State may issue a designation notice only if the Secretary of State considers that the notice is necessary in the interests of national security.

(4) In considering whether to designate a person, the matters to which the Secretary of State may have regard include—

(a) the nature of the goods, services or facilities that are or might be supplied, provided or made available by the person;

(b) the quality, reliability and security of those goods, services or facilities or any component of them (including the quality, reliability and security of their development or production or of the manner in which they are supplied, provided or made available);

(d) the quality and reliability of the provision of maintenance or support for those goods, services or facilities;

(e) the extent to which and the manner in which goods, services or facilities supplied, provided or made available by the person are or might be used in the United Kingdom;

(f) the extent to which and the manner in which goods, services or facilities supplied, provided or made available by the person are or might be used in other countries or territories;

(g) the identity of the persons concerned in—

(i) the development or production of goods, services or facilities supplied, provided or made available by the person or any component of them;

(ii) supplying or providing such goods or services or making such facilities available; or

(iii) providing maintenance or support for such goods, services or facilities;

(h) the identity of the persons who own or control, or are associated with—

(i) the person being considered for designation; or

(ii) any person described in paragraph (g);

(i) the country or territory in which the registered office or anything similar, or any place of business, of—

(i) the person being considered for designation, or

(ii) any of the persons described in paragraph (g) or (h),

is situated;

(j) the conduct of any of the persons described in paragraph (i) as it affects or might affect the national security of any country or territory;

(k) any other connection between a country or territory and any of those persons;

(l) the degree to which any of those persons might be susceptible to being influenced or required to act contrary to the interests of national security.

(5) A designation notice must specify the reasons for the designation.

(6) The requirement in subsection (5) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(7) A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility.

Further provision about designation notices

105Z9

(1) Before issuing a designation notice, the Secretary of State must consult the person or persons proposed to be designated in the notice, so far as it is reasonably practicable to do so.

(2) The requirement in subsection (1) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

(3) Where a designation notice is issued, the Secretary of State must send a copy to the person or persons designated in the notice, if or to the extent that it is reasonably practicable to do so.

Variation and revocation of designation notices

105Z10

(1) The Secretary of State must review a designation notice from time to time.

(2) The Secretary of State may—

(a) vary a designation notice;

(b) revoke a designation notice (whether wholly or in part).

(3) The Secretary of State may vary a designation notice only if the Secretary of State considers that the designation notice as varied is necessary in the interests of national security.

(4) Before varying a designation notice, the Secretary of State must consult the person, or each of the persons, proposed to be designated in the notice as varied, so far as it is reasonably practicable to do so.

(5) The requirement in subsection (4) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security.

(6) The Secretary of State must give notice of a variation to—

(a) any person designated by the designation notice as it had effect before the variation, and

(b) any person designated by the designation notice as varied,

if or to the extent that it is reasonably practicable to do so.

(7) The notice of variation must specify—

(a) how the designation notice is varied;

(b) the reasons for the variation;

(8) The requirement in subsection (7)(b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security.

(9) The Secretary of State must give notice of a revocation to any person designated by the designation notice as it had effect before the revocation, if or to the extent that it is reasonably practicable to do so.

(10) The notice of revocation must specify—

(a) the time at which the revocation comes into force;

(b) if the designation notice is partly revoked, what part of the notice is revoked.

Laying before Parliament

105Z11

(1) The Secretary of State must lay before Parliament a copy of—

(a) a designated vendor direction;

(b) a designation notice;

(d) a notice of a variation or revocation of a designation notice.

(2) The requirement in subsection (1) does not apply if the Secretary of State considers that laying a copy of the direction or notice (as the case may be) before Parliament would be contrary to the interests of national security.

(3) The Secretary of State may exclude from what is laid before Parliament anything the publication of which the Secretary of State considers—

(a) would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or

(b) would be contrary to the interests of national security.

Monitoring of designated vendor directions

105Z12

(1) The Secretary of State may give OFCOM a direction (“a monitoring direction”) requiring them—

(a) to obtain information relating to a specified public communications provider’s compliance with a designated vendor direction;

(b) to prepare and send a report to the Secretary of State based on that information; and

(c) to provide to the Secretary of State on request the information on which a report falling within paragraph (b) is based.

(2) The information that OFCOM may be required to obtain under subsection (1)(a) is—

(a) information that would assist the Secretary of State in determining whether the provider has complied, is complying or is preparing to comply with—

(i) the designated vendor direction; or

(ii) a specified requirement imposed by the designated vendor direction;

(b) information about a specified matter which is relevant to compliance with a requirement imposed by the designated vendor direction;

(c) if the provider has been required to provide a plan under section 105Z7, information about whether the provider is acting in accordance with the plan.

(3) A monitoring direction may make provision about—

(a) the form of a report;

(b) the content of a report.

(4) A monitoring direction may, in particular, require a report to include—

(a) OFCOM’s analysis of information gathered by them;

(b) an explanation of their analysis.

(5) A monitoring direction may require OFCOM to give the Secretary of State separate reports on different matters.

(6) A monitoring direction may make provision about the time or times at which OFCOM must report to the Secretary of State, including provision requiring OFCOM to give reports at specified intervals.

(7) OFCOM must exercise their powers to obtain information in such manner as they consider appropriate for the purposes of preparing a report required by a monitoring direction.

(8) The Secretary of State may give OFCOM more than one monitoring direction in relation to a designated vendor direction.

(9) The Secretary of State may vary or revoke a monitoring direction.

(10) The Secretary of State must consult OFCOM before giving or varying a monitoring direction.

(11) In this section “specified” means specified in a monitoring direction.

Reports made under monitoring directions

105Z13

(1) The Secretary of State may—

(a) publish a report made by OFCOM in accordance with a monitoring direction or part of it; or

(b) disclose such a report or part of it.

(2) In publishing or disclosing a report made by OFCOM in accordance with a monitoring direction, the Secretary of State must have regard to the need to exclude from publication or disclosure, so far as is practicable, the matters which are confidential in accordance with subsections (3) and (4).

(3) A matter is confidential under this subsection if—

(a) it relates to the affairs of a particular body; and

(b) publication or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that body.

(4) A matter is confidential under this subsection if—

(a) it relates to the private affairs of an individual; and

(b) publication or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that individual.

Power of OFCOM to give inspection notices

105Z14

(1) This section applies where the Secretary of State has given OFCOM a monitoring direction relating to a public communications provider (and the monitoring direction has not been revoked).

(2) OFCOM may by notice (“an inspection notice”) given to the provider impose on the provider a duty to take any of the actions mentioned in subsection (4).

(3) OFCOM may exercise the power in subsection (2) for the purpose of obtaining—

(a) information (in any form) that would assist the Secretary of State in determining whether the provider has complied or is complying with—

(i) the designated vendor direction; or

(ii) a specified requirement imposed by the designated vendor direction;

(b) information (in any form) about a specified matter which is relevant to whether the provider has complied or is complying with a requirement imposed by the designated vendor direction.

(4) The actions are—

(a) to carry out surveys of a specified description of—

(i) the public electronic communications network provided by the provider;

(ii) the public electronic communications service provided by the provider; or

(iii) the associated facilities made available by the provider that are associated facilities by reference to such a network or service (as the case may be);

(b) to make arrangements of a specified description for another person to carry out surveys of a specified description of the network, service or associated facilities;

(c) to make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service or the making available of the associated facilities (not exceeding the number who are willing to be interviewed);

(d) to permit an authorised person to enter specified premises;

(e) to permit an authorised person to observe any operation taking place on the premises that relates to the network, service or associated facilities;

(f) to direct an authorised person to equipment or other material on the premises that is of a specified description;

(g) to direct an authorised person to documents on the premises that are of a specified description;

(h) to assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises;

(i) to comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view;

(j) to permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view;

(k) to provide an authorised person with an explanation of such documents, information, equipment or material.

(5) An inspection notice may not impose on the provider a duty to permit an authorised person to enter domestic premises.

(6) An inspection notice may not impose on the provider a duty to do anything that would result in—

(a) the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings; or

(b) a disclosure of documents or information that is prohibited by or under an enactment mentioned in section 105A(4).

(7) An inspection notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with.

(8) A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period of 28 days beginning with the day on which the inspection notice is given.

(9) In this section—

“authorised person” means an employee of, or person authorised by, OFCOM;

“domestic premises” means premises, or a part of premises, used as a dwelling;

“specified” means specified in an inspection notice.

Inspection notices: further provision

105Z15

(1) An inspection notice must provide information about the consequences of failing to comply with a duty imposed by the notice.

(2) An inspection notice may by further notice—

(a) be revoked by OFCOM;

(b) be varied by OFCOM so as to make it less onerous.

(3) Where an inspection notice is given to a public communications provider, the provider may not act in such a way as to defeat the purpose of the inspection notice.

(4) Where an inspection notice is given to a public communications provider, the provider must pay the costs reasonably incurred by OFCOM in connection with obtaining information by means of the inspection notice.

105Z16

Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (OFCOM’s annual report) must include a statement of the number of occasions during the financial year to which the report relates on which premises have been entered in pursuance of a duty imposed under section 105Z14 (4)(d).

Inspection notices: enforcement of compliance

105Z17

(1) Sections 96A to 100, 102 and 103 apply in relation to—

(a) a contravention of a duty imposed by an inspection notice, or

(b) a contravention of the duty imposed by section 105Z15 (3),

as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition.

(2) Subsection (1) is subject to subsections (3) and (4).

(3) In its application in relation to a contravention referred to in subsection (1), section 96B(5) has effect as if the maximum penalty specified were £50,000 per day.

(4) In its application in relation to a contravention referred to in subsection (1), section 97(1) has effect as if the maximum penalty specified were £10 million.

(5) The Secretary of State may by regulations amend this section so as to substitute a different amount for the amount for the time being specified in subsection (3) or (4).

(6) No regulations are to be made containing provision authorised by subsection (5) unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.

Notification of contravention

105Z18

(1) Where the Secretary of State determines that there are reasonable grounds for believing that a public communications provider is contravening, or has contravened—

(a) a requirement imposed by a designated vendor direction, or

(b) a requirement under section 105Z7,

the Secretary of State may give the provider a notification under this section.

(2) A notification under this section is one which—

(a) sets out the Secretary of State’s determination;

(b) specifies the requirement and contravention in respect of which the determination is made;

(d) specifies the steps that the Secretary of State thinks should be taken by the provider in order to—

(i) comply with the requirement;

(ii) remedy the consequences of the contravention;

(e) specifies the penalty which the Secretary of State is minded to impose.

(3) A notification under this section may be given in respect of more than one contravention.

(4) If a notification under this section relates to more than one contravention, a separate penalty may be specified under subsection (2)(e) in respect of each contravention.

(5) If a notification under this section is given in respect of a continuing contravention, it may be given in respect of any period during which the contravention has continued.

(6) If a notification under this section relates to a continuing contravention, no more than one penalty may be specified under subsection (2)(e) in respect of the period of contravention specified in the notification.

(7) Notwithstanding subsection (6), 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 105Z20 which requires immediate action in respect of that contravention (see section 105Z20 (6)(a)); or

(b) the expiry of any period specified in the confirmation decision for complying with the requirement being contravened.

(8) Where a notification under this section has been given to a public communications provider in respect of a contravention of a requirement, the Secretary of State 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.

Amount of penalty

105Z19

(1) The amount of a penalty that may be specified in a notification under section 105Z18 is such amount as the Secretary of State determines to be—

(a) appropriate; and

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

(2) The amount may not exceed 10 per cent of the turnover of the public communications provider’s relevant business for the relevant period, subject to subsection (3).

(3) In the case of a penalty specified under section 105Z18 (7), the amount may not exceed £100,000 per day.

(4) Where the notification relates to a contravention of a requirement under section 105Z7—

(a) subsection (2) has effect as if the maximum amount specified were £10 million; and

(b) subsection (3) has effect as if the maximum amount specified were £50,000 per day.

(5) The Secretary of State may by regulations amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3) or (4)(a) or (b).

(6) No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.

(7) For the purposes of this section—

(a) the turnover of a person’s relevant business for a period is to be calculated in accordance with such rules as may be set out in an order under section 97(3)(a); and

(b) 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 is to be determined in accordance with such provision as may be made by an order under section 97(3)(a).

(8) In this section—

“relevant business”, in relation to a person, means (subject to the provisions of an order under section 97(3)(a)) so much of any business carried on by the person as consists in any one or more of the following—the provision of a public electronic communications network;the provision of a public electronic communications service;the making available of facilities that are associated facilities by reference to such a network or service;

“relevant period”, in relation to a contravention by a person of a requirement imposed by a designated vendor direction, 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 105Z18;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 the person has been carrying it on; andin 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 the person ceased to carry it on.

Enforcement of notification

105Z20

(1) This section applies where—

(a) a public communications provider has been given a notification under section 105Z18;

(b) the Secretary of State has allowed the provider an opportunity to make representations about the matters notified; and

(2) The Secretary of State may—

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