Communications Act 2003

• (10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Statement of policy on persistent misuse

131

• (1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to the exercise of their powers under sections 128 to 130.

• (2) OFCOM may from time to time revise that statement as they think fit.

• (3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

• (4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 128 to 130, to have regard to the statement for the time being in force under this section.

Powers to deal with emergencies

Powers to require suspension or restriction of a provider’s entitlement

132

• (1) If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

• (a) to protect the public from any threat to public safety or public health, or

• (b) in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

• (2) OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

• (3) A direction under this section is—

• (a) a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

• (b) a direction that that entitlement is restricted in the respects set out in the direction.

• (4) A direction under subsection (3)—

• (a) must specify the networks, services and facilities to which it relates; and

• (b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

• (5) A direction under subsection (3)—

• (a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

• (b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the relevant provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

• (6) Those conditions may include a condition requiring the making of payments—

• (a) by way of compensation for loss or damage suffered by the relevant provider’s customers as a result of the direction; or

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

• (7) Where OFCOM give a direction under subsection (3), they shall, as soon as practicable after doing so, provide that person with an opportunity of—

• (a) making representations about the effect of the direction; and

• (b) proposing steps for remedying the situation.

• (8) If OFCOM consider it appropriate to do so (whether in consequence of any representations or proposals made to them under subsection (3) or otherwise), they may, without revoking it, at any time modify the terms of a direction under subsection (3) in such manner as they consider appropriate.

• (9) If the Secretary of State considers it appropriate to do so, he may, by a direction to OFCOM, require them to revoke a direction under subsection (3).

• (10) Where OFCOM modify or revoke a direction they have given under subsection (3), they may do so—

• (a) with effect from such time as they may direct;

• (b) subject to compliance with such requirements as they may specify; and

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

• (11) It shall be the duty of OFCOM to comply with—

• (a) a requirement under subsection (9) to revoke a direction; and

• (b) a requirement contained in that direction as to how they should exercise their powers under subsection (10) in the case of the required revocation.

Enforcement of directions under s. 132

133

• (1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

• (a) while his entitlement to do so is suspended by a direction under section 132; or

• (b) in contravention of a restriction contained in such a direction.

• (2) A person guilty of an offence under subsection (1) shall be liable—

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

• (b) on conviction on indictment, to a fine.

• (3) The duty of a person to comply with a condition of a direction under section 132 shall be a duty owed to every person who may be affected by a contravention of the condition.

• (4) Where a duty is owed by virtue of subsection (3) to a person—

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

• (b) an act which—

• (i) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

• (ii) is done wholly or partly for achieving that result,

shall be actionable at the suit or instance of that person.

• (5) In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.

• (6) Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45 , other than SMP apparatus conditions .

Restrictions in leases and licences

Restrictions in leases and licences

134

• (1) This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of—

• (a) the person from whom he obtains electronic communications services, or particular electronic communications services, or

• (b) the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,

is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.

• (2) This section also applies where—

• (a) provision contained in a lease for a year or more has the effect of imposing any other prohibition or restriction on the lessee with respect to an electronic communications matter; or

• (b) provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.

• (3) A provision falling within subsection (1) shall have effect—

• (a) as if the prohibition or restriction applied only where the lessor, licensor or other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and

• (b) as if the lessor, licensor or other party were required not to withhold that consent unreasonably.

• (4) A provision falling within subsection (2)(a) or (b) shall have effect—

• (a) in relation to things done inside a building occupied by the lessee under the lease, or

• (b) for purposes connected with the provision to the lessee of an electronic communications service,

as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.

• (5) Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent—

• (a) in relation to an electronic communications matter, or

• (b) to the obtaining by the occupier of premises of an electronic communications service from or through a particular person,

the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.

• (6) OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.

• (7) References in this section to electronic communications matters are references to—

• (a) the provision of an electronic communications network or electronic communications service;

• (b) the connection of electronic communications apparatus to a relevant electronic communications network or of any such network to another; and

• (c) the installation, maintenance, adjustment, repair, alteration or use for purposes connected with the provision of such a network or service of electronic communications apparatus.

• (8) In this section—

• “alteration” has the same meaning as in the electronic communications code;

• “lease” includes—a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, andin Scotland, a sub-lease and an agreement to grant a sub-lease,and “lessor” and “lessee” are to be construed accordingly;

• “lease”—in relation to England and Wales and Northern Ireland, includes—any head lease, sub-lease or underlease,any tenancy (including a sub-tenancy), andany agreement to grant any such lease or tenancy;in relation to Scotland, includes any sub-lease and any agreement to grant a sub-lease,and “lessor” and “lessee” are to be construed accordingly;

• “relevant electronic communications network” means—a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; oran electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.

• (9) This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.

• (10) This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).

• (11) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

• (12) Section 403 applies to the powers of OFCOM to make orders under this section.

• (13) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Information provisions

Information required for purposes of Chapter 1 functions

135

• (1) OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under—

• (a) section 14(1),

• (b) section 26, so far as relating to matters in relation to which they have functions under this Chapter, or

• (c) this Chapter.

• (2) The persons falling within this subsection are—

• (a) a communications provider;

• (b) a person who has been a communications provider;

• (c) a person who makes, or has made, any associated facilities available to others;

• (d) a person, other than a communications provider, to whom a universal service condition applies or has applied;

• (e) a person who supplies electronic communications apparatus;

• (f) a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.

• (g) a person who provides or has provided a number-independent interpersonal communications service and appears to OFCOM to have information relevant to their functions under section 14(1).

• (3) The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—

• (a) ascertaining whether a contravention of a condition or other requirement set or imposed by or under this Chapter has occurred or is occurring;

• (b) ascertaining or verifying the charges payable by a person under section 38;

• (c) ascertaining whether a provision of a condition set under section 45 which is for the time being in force continues to be effective for the purpose for which it was made;

• (d) ascertaining or verifying amounts payable by virtue of a condition falling within section 51(1)(d);

• (e) making a designation in accordance with regulations made under section 66;

• (f) carrying out a review under section 66 , 70 or 72A;

• (fa) ascertaining whether a commitment which is made binding by a commitments decision continues to be effective for the purpose for which it was made binding under section 93A(8);

• (g) identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter;

• (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (i) considering a matter in exercise of that duty;

• (iza) carrying out an assessment under section 105N;

• (izb) preparing a report under section 105Z;

• (izc) assessing the risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service;

• (izd) preparing a report under section 105Z12;

• (ia) preparing a report under section 124F;

• (ib) carrying out an assessment, taking steps or providing a report under section 124G;

• (ic) preparing a report under section 134A;

• (ica) preparing a report under section 134AA;

• (id) preparing a report under section 134C;

• (ie) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (if) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ig) identifying electronic communications apparatus that is suitable for shared use;

• (j) statistical purposes connected with the carrying out of any of OFCOM’s functions under this Chapter.

• (3A) The descriptions of information that a person may be required to provide under subsection (1) include, in particular—

• (za) information concerning future developments of a public electronic communications network or public electronic communications service that could have an impact on the security of the network or service,

• (a) information concerning future developments of an electronic communications network or electronic communications service that could have an impact on the wholesale services made available by the person to competitors, and

• (b) if a market power determination made in relation to a wholesale market is in force in the person’s case, accounting data relating to any retail market associated with the wholesale market.

• (3B) In subsection (2)(g), “number-independent interpersonal communications service” means an interpersonal communications service, as defined by section 32A(2), other than—

• (a) a number-based interpersonal communications service; or

• (b) a service where the interpersonal and interactive communication is merely a minor ancillary feature that is intrinsically linked to another service.

• (3C) OFCOM may require a person falling within subsection (2)—

• (a) to produce, generate or obtain security information for the purpose of providing it under subsection (1);

• (b) to collect or retain security information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1);

• (c) to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating security information to be provided under subsection (1).

• (3D) In subsection (3C) “security information” means information OFCOM consider necessary for the purpose of carrying out their functions under sections 105L to 105Z.

• (4) A person must comply with a requirement imposed under this section in such manner and within such reasonable period as may be specified by OFCOM.

• (5) The powers in this section are subject to the limitations in section 137.

Information required for related purposes

136

• (1) OFCOM may require—

• (a) a communications provider, or

• (b) a person who makes associated facilities available to others,

to provide OFCOM with all such information as they consider necessary for the purpose of carrying out comparative overviews under section 134D .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) OFCOM may also require—

• (a) a communications provider, or

• (b) a person who makes associated facilities available to others,

to provide them, for use for such statistical purposes as they think fit, with information relating to any electronic communications network, electronic communications service or associated facilities.

• (4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

• (5) The powers in this section are subject to the limitations in section 137.

Restrictions on imposing information requirements

137

• (1) This section limits the purposes for which, and manner in which, requirements may be imposed under sections 135 and 136.

• (2) OFCOM are not to require the provision of information for the purpose of ascertaining whether a contravention of a general condition has occurred, or is occurring, unless—

• (a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint;

• (b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the general condition in question has been complied with;

• (c) the condition in question is one which OFCOM have reason to suspect is one that has been or is being contravened; ...

• (d) the condition in question is one falling within section 51(1)(d) ; or

• (e) the condition in question is one relating to the effective and efficient use of telephone numbers.

• (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) OFCOM are not to require the provision of information under section 135 or 136 except—

• (a) by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it; and

• (b) where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions.

• (4) The reasons for requiring information for statistical purposes under section 135 or 136 must set out the statistical purposes for which the information is required.

• (5) Except in the case of a demand made in the manner authorised by subsection (6), a demand for information required under section 135 or 136 must be contained in a notice served on the person from whom the information is required.

• (6) In the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under section 38, the demand may—

• (a) be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who are described in the demand as the persons from whom the information is required; and

• (b) take the form of a general demand for a person so described to provide information when specified conditions relevant to his liability to such charges are satisfied in his case.

• (7) OFCOM are not to impose a requirement on a person under section 135(3C) except by a notice served on the person that sets out the requirement and OFCOM’s reasons for imposing it.

Notification of contravention of information requirements

138

• (1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 135, 136 or 137A, they may give that person a notification under this section.

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

• (a) sets out the determination made by OFCOM;

• (b) specifies the requirement and contravention in respect of which that determination has been made; ...

• (c) specifies the period during which the person notified has an opportunity to make representations;

• (d) specifies what the person must do in order to comply with the requirement;

• (e) specifies any penalty which OFCOM are minded to impose in accordance with section 139; and

• (f) where the contravention is serious, specifies any direction which OFCOM are minded to give under section 140.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) A notification under this section—

• (a) may be given in respect of more than one contravention; and

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

• (9) Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—

• (a) the contravention is one occurring after the time of the giving of the earlier notification;

• (b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

• (c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

• (9A) OFCOM may not give a person a notification under this section in respect of a contravention of a requirement imposed under section 135(3)(ig) if the information required was previously provided by the person to OFCOM within the period of 6 months ending with the day on which the requirement was imposed.

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Penalties for contravention of information requirements

139

• (1) This section applies where a person is given a notification under section 138 which specifies a proposed penalty.

• (2) OFCOM may specify a penalty if—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention.

• (3) Where a notification under section 138 relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

• (4) Where such a notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

• (4A) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

• (a) the giving of a confirmation decision under section 139A(4)(c) which requires immediate action; or

• (b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

• (4B) The amount of a penalty under subsection (4A) is to be such amount not exceeding £500 per day as OFCOM determine to be—

• (a) appropriate; and

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

• (5) The amount of any other penalty notified under this section is to be such amount not exceeding £2,000,000 as OFCOM determine to be both—

• (a) appropriate; and

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

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (5).

• (10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Suspending service provision for information contraventions

140

• (1) OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

• (a) that he is or has been in serious or repeated contravention of requirements imposed under sections 135, 136 and 137A, or any or either of them;

• (b) the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM’s functions in relation to SMP apparatus conditions;

• (c) in the case of a repeated contravention, that an attempt, by the imposition of penalties or the giving of notifications under section 138 and confirmation decisions under section 139A, or both, or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

• (d) that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.

• (2) A direction under this section is—

• (a) a direction that the entitlement of the contravening provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

• (b) a direction that that entitlement is restricted in the respects set out in the direction.

• (3) A direction under this section—

• (a) must specify the networks, services and facilities to which it relates; and

• (b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

• (4) A direction under this section—

• (a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

• (b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

• (5) Those conditions may include a condition requiring the making of payments—

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

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

• (6) If OFCOM consider it appropriate to do so (whether or not in consequence of any representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

• (a) with effect from such time as they may direct;

• (b) subject to compliance with such requirements as they may specify; and

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

• (7) For the purposes of this section there are repeated contraventions by a person of requirements imposed under sections 135, 136 and 137A, or any of them, to the extent that—

• (a) in the case of a previous notification of a contravention given to that person under section 138, OFCOM have given a confirmation decision to that person under section 139A(2) in respect of the contravention; and

• (b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of numbering conditions;

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements or of requirements under different sections.

Suspending apparatus supply for information contraventions

141

• (1) OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—

• (a) that he is or has been in serious and repeated contravention of requirements imposed under section 135;

• (b) that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

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

• (2) A direction under this section is—

• (a) a direction to the contravening supplier to cease to act as a supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description); or

• (b) a direction imposing such restrictions as may be set out in the direction on the supply by that supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description).

• (3) A direction under this section takes effect, except so far as it otherwise provides, for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

• (4) A direction under this section—

• (a) may provide for a prohibition or restriction to take effect only at a time determined by or in accordance with the terms of the direction; and

• (b) in connection with a prohibition or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening supplier as appear to OFCOM to be appropriate for the purpose of protecting that supplier’s customers.

• (5) Those conditions may include a condition requiring the making of payments—

• (a) by way of compensation for loss or damage suffered by the contravening supplier’s customers as a result of the direction; or

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

• (6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

• (a) with effect from such time as they may direct;

• (b) subject to compliance with such requirements as they may specify; and

• (c) to such extent and in relation to such apparatus or descriptions of apparatus as they may determine.

• (7) For the purposes of this section contraventions by a person of requirements imposed under section 135 are repeated contraventions if—

• (a) in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(2) that such a contravention did occur; and

• (b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of such requirements;

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements.

Procedure for directions under ss. 140 and 141

142

• (1) Except in an urgent case, or a case where a proposed direction has been notified to a person in accordance with section 138(2)(f) OFCOM are not to give a direction under section 140 or 141 unless they have—

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

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

• (c) considered every representation and proposal made to them during the period allowed by them for the contravening provider or the contravening supplier to take advantage of that opportunity.

• (2A) That period must be—

• (a) in relation to a direction under section 140, such reasonable period as OFCOM may determine, and

• (b) in relation to a direction under section 141, a period ending not less than one month after the day of the giving of the notification.

• (3) As soon as practicable after giving a direction under section 140 or 141 in an urgent case, OFCOM must provide the contravening provider or contravening supplier with an opportunity of—

• (a) making representations about the effect of the direction and of any of its conditions; and

• (b) proposing steps for remedying the situation.

• (3A) In relation to a direction under section 140 in an urgent case, as soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

• (a) whether the contravention providing the grounds for the giving of the direction did occur; and

• (b) whether the circumstances made it an urgent case justifying the giving of the direction.

• (3B) The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

• (a) require additional time to consider representations received; or

• (b) decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (3A).

• (4) A case is an urgent case for the purposes of this section if OFCOM—

• (a) consider that it would be inappropriate, because the contraventions in question fall within subsection (5), to allow time, before giving a direction under section 140 or 141, for the making and consideration of representations; and

• (b) decide for that reason to act in accordance with subsection (3), instead of subsection (1).

• (5) The contraventions fall within this subsection if they have resulted in, or create an immediate risk of—

• (a) a serious threat to the safety of the public, to public health or to national security;

• (b) serious economic or operational problems for persons (apart from the contravening provider or contravening supplier) who are communications providers or persons who make associated facilities available; or

• (c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

• (6) In this section—

• “contravening provider” has the same meaning as in section 140; and

• “contravening supplier” has the same meaning as in section 141.

Enforcement of directions under ss. 140 and 141

143

• (1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

• (a) while his entitlement to do so is suspended by a direction under section 140; or

• (b) in contravention of a restriction contained in such a direction.

• (2) A person is guilty of an offence if he supplies electronic communications apparatus—

• (a) while prohibited from doing so by a direction under section 141; or

• (b) in contravention of a restriction contained in such a direction.

• (3) A person guilty of an offence under this section shall be liable—

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

• (b) on conviction on indictment, to a fine.

• (4) Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 139B or 140 as they apply in relation to a contravention of conditions set under section 45, other than SMP apparatus conditions.

• (5) Sections 94 to 96 and 97 to 99 apply in relation to a contravention of conditions imposed by a direction under section 141 as they apply in relation to a contravention of SMP apparatus conditions.

Offences in connection with information requirements

144

• (1) A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 , or who contravenes a requirement imposed under section 137A, is guilty of an offence and shall be liable—

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

• (b) on conviction on indictment, to a fine.

• (2) In proceedings against a person for an offence under subsection (1) it shall be a defence for that person to show—

• (a) that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but

• (b) that he has taken all reasonable steps to comply with the requirement after the end of that period.

• (3) A person is guilty of an offence if—

• (a) in pursuance of any requirement under section 135, 136 or 137A, he provides or publishes any information that is false in any material particular; and

• (b) at the time he provides or publishes it, he either knows it to be false or is reckless as to whether or not it is false.

• (4) A person guilty of an offence under subsection (3) shall be liable—

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

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

• (5) Proceedings for an offence under subsection (1) may be brought in respect of a contravention by a person of a requirement imposed under section 135 or 136 only if—

• (a) OFCOM have given the person a notification under section 138 in respect of that contravention;

• (b) a confirmation decision has been given under section 139A in respect of that requirement and the period allowed under that decision has expired without the requirement have been complied with; and

• (c) OFCOM have not imposed a financial penalty under section 139 in respect of that contravention.

• (6) Nothing in this section applies in relation to a contravention of a requirement imposed on a person by virtue of section 135(2)(g).

Statement of policy on information gathering

145

• (1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to—

• (a) the exercise of their powers under sections 135, 136 and 137A ; and

• (b) the uses to which they are proposing to put information obtained under sections 135 and 136 .

• (2) OFCOM may from time to time revise that statement as they think fit.

• (3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

• (4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 135 to 144 to have regard to the statement for the time being in force under this section.

Provision of information by OFCOM

146

• (1) OFCOM must comply with a request made by a person for the purposes of this section—

• (a) to notify the person whether or not a notification is required to be submitted by him under section 33;

• (b) to notify the person whether a notification submitted by him for the purposes of that section satisfies the requirements of this Chapter;

• (c) to provide the person with such information about his rights as may be necessary for the purpose of facilitating the negotiation by him of his right to network access; or

• (d) to provide the person with such information as they consider necessary to enable the applicant to apply for a direction under section 106 to be made in his case.

• (2) A request for the purposes of this section must be made in such manner as OFCOM may require.

• (3) OFCOM are not required to comply with a request under this section if (without having been asked to do so) they have already given that person the notification or information for which he is asking.

• (4) Any notification or information which under subsection (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the request for the notification or information was made to OFCOM.

Abolition of telecommunications licensing etc.

Repeal of provisions of Telecommunications Act 1984

147

The following provisions of the Telecommunications Act 1984 (c. 12) shall cease to have effect—

• (a) sections 5 to 8 (licensing provisions);

• (b) sections 9 to 11 (public telecommunications systems);

• (c) sections 12 to 15 (modification of licences);

• (d) sections 16 to 19 (enforcement of licences); and

• (e) sections 27A to 27L (standards of performance of designated public telecommunications operators).

Local authority powers in relation to networks and services

Powers of local authorities in connection with networks

148

• (1) A local authority may borrow money for the purpose of providing a public electronic communications network or public electronic communications service.

• (2) A local authority may—

• (a) provide a public electronic communications network part of which is outside their area; and

• (b) provide a public electronic communications service even if some of the persons to whom they provide the service are outside their area.

• (3) In this section, a “local authority” means—

• (a) in relation to England, a London borough council or a district council;

• (b) in relation to Wales, a county council or a county borough council;

• (c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).

Grants for networks and services in Northern Ireland

Grants by Department of Enterprise, Trade and Investment

149

• (1) The Department of Enterprise, Trade and Investment may, in accordance with this section, make payments to persons engaged in, or in commercial activities connected with—

• (a) the provision of electronic communications networks and electronic communications services in Northern Ireland; or

• (b) improving the extent, quality and reliability of such networks or services.

• (2) A payment shall not be made under this section unless in the opinion of the Department of Enterprise, Trade and Investment—

• (a) the making of the payment is likely to achieve—

• (i) one or more of the purposes set out in subsection (1); and

• (ii) any other purposes prescribed by regulations made by that Department with the approval of the Department of Finance and Personnel; and

• (b) the amount of the payment is reasonable having regard to all the circumstances.

• (3) Payments under this section shall—

• (a) be of such amounts, and

• (b) be made subject to such conditions (including conditions as to repayment),

as the Department of Enterprise, Trade and Investment may determine.

• (4) This section extends only to Northern Ireland.

Grants by district councils

150

• (1) This section applies where a district council in Northern Ireland consider that it would be for the benefit of their area—

• (a) for a public electronic communications network or electronic communications service to be provided by a particular person;

• (b) for facilities to be made available by a particular person for the purposes of, or in connection with, the provision of such a network or service; or

• (c) for such a network or service that is being provided by a particular person, or for any such facilities that are being so made available by a particular person, to continue to be provided or made available.

• (2) The district council may—

• (a) undertake to pay to that person, and

• (b) pay him,

whatever sums they think appropriate for, or towards, compensating him for losses sustained in the provision of the network or service or in making the facilities available.

• (3) For the purposes of this section it is immaterial—

• (a) in the case of a network, whether any part of the network is situated in the council’s area; and

• (b) in the case of a service or facility, whether any of the persons to whom the service or facility is provided or made available are in that area.

Interpretation of Chapter 1

Interpretation of Chapter 1

151

• (1) In this Chapter—

• ...

• “access-related condition” means a condition set as an access-related condition under section 45;

• “allocation” and “adoption”, in relation to telephone numbers, and cognate expressions, are to be construed in accordance with section 56;

• “apparatus market”, in relation to a market power determination, is to be construed in accordance with section 46(9)(b);

• “bundled contract” has the meaning given by section 51(8);

• “commitments decision” means a decision under section 93A(8);

• “designated universal service provider” means a person who is for the time being designated in accordance with regulations under section 66 as a person to whom universal service conditions are applicable;

• “designated vendor” means a person designated by a designation notice;

• “designated vendor direction” has the meaning given by section 105Z1(1);

• “designation notice” has the meaning given by section 105Z8(1);

• “electronic communications apparatus”—in relation to SMP apparatus conditions and in section 141, means apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals (within the meaning of section 32) that are transmitted by means of an electronic communications network; andin all other contexts, has the same meaning as in the electronic communications code;

• “the electronic communications code” has the meaning given by section 106(1);

• “end-user”, in relation to a public electronic communications service, means—a person who, otherwise than as a communications provider, is a customer of the provider of that service;a person who makes use of the service otherwise than as a communications provider; ora person who may be authorised, by a person falling within paragraph (a), so to make use of the service;

• “the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services , as amended by Directive 2009/140/EC of the European Parliament and of the Council ;

• “general condition” means a condition set as a general condition under section 45;

• “inspection notice” has the meaning given by section 105Z14;

• “interconnection” is to be construed in accordance with subsection (2);

• “market power determination” means—a determination, for the purposes of provisions of this Chapter, that a person has significant market power in an identified services market or an identified apparatus market, ora confirmation for such purposes of a market power determination reviewed on a further analysis under section 84 or 85;

• “misuse”, in relation to an electronic communications network or electronic communications service, is to be construed in accordance with section 128(5) and (8), and cognate expressions are to be construed accordingly;

• “monitoring direction” has the meaning given by section 105Z12;

• “network access” is to be construed in accordance with subsection (3);

• “not-for-profit body” means a body which, by virtue of its constitution or any enactment—is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes; andis prohibited from directly or indirectly distributing amongst its members any part of its assets (otherwise than for charitable or public purposes);

• “number-based interpersonal communications service” has the meaning given by section 32A(1);

• “persistent” and “persistently”, in relation to misuse of an electronic communications network or electronic communications service, are to be construed in accordance with section 128(6) and (7);

• “premium rate service” is to be construed in accordance with section 120(7);

• “privileged supplier condition” means a condition set as a privileged supplier condition under section 45;

• “provider”, in relation to a premium rate service, is to be construed in accordance with section 120(9) to (12), and cognate expressions are to be construed accordingly;

• “public communications provider” means—a provider of a public electronic communications network;a provider of a public electronic communications service; ora person who makes available facilities that are associated facilities by reference to a public electronic communications network or a public electronic communications service;

• “public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public;

• “public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;

• “regulatory authorities” is to be construed in accordance with subsection (5);

• “relevant international standards” means—any standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive or Article 39 of the EECC Directive;the standards and specifications from time to time adopted by—the European Committee for Standardisation,the European Committee for Electrotechnical Standardisation; orthe European Telecommunications Standards Institute; andthe international standards and recommendations from time to time adopted by—the International Telecommunication Union;the International Organisation for Standardisation; orthe International Electrotechnical Committee;

• “security compromise”, in relation to a public electronic communications network or a public electronic communications service, has the meaning given by section 105A;

• “service interoperability” means interoperability between different electronic communications services;

• “services market”, in relation to a market power determination or market identification, is to be construed in accordance with section 46(8)(a);

• “significant market power” is to be construed in accordance with section 78;

• “SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

• “social tariff condition” means a condition set as a social tariff condition under section 45;

• “telephone number” has the meaning given by section 56(5);

• “terminal equipment” means—equipment directly or indirectly connected to the interface of a public electronic communications network to send, process or receive information, with the direct or indirect connection being made by a wire or optical fibre or electromagnetically; orequipment which is capable of being used for the transmission or reception, or both, of radio communication signals by means of satellites or other space-based systems;

• ...

• “universal service condition” means a condition set as a universal service condition under section 45;

• “the universal service order” means the order for the time being in force under section 65.

• “urgent enforcement direction” has the meaning given by section 105Z22.

• (2) In this Chapter references to interconnection are references to the linking (whether directly or indirectly by physical or logical means, or by a combination of physical and logical means) of one public electronic communications network to another for the purpose of enabling the persons using one of them to be able—

• (a) to communicate with users of the other one; or

• (b) to make use of services provided by means of the other one (whether by the provider of that network or by another person).

• (3) In this Chapter references to network access are references to—

• (a) interconnection of public electronic communications networks; or

• (b) any services, facilities or arrangements which—

• (i) are not comprised in interconnection; but

• (ii) are services, facilities or arrangements by means of which a person is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of anything mentioned in subsection (4);

and references to providing network access include references to providing any such services, making available any such facilities or entering into any such arrangements.

• (4) The things referred to in subsection (3)(b) are—

• (a) any electronic communications network or electronic communications service provided by another communications provider;

• (b) any apparatus comprised in such a network or used for the purposes of such a network or service;

• (ba) any electronic communications apparatus;

• (c) any facilities made available by another that are associated facilities by reference to any network or service (whether one provided by that provider or by another);

• (d) any other services or facilities which are provided or made available by another person and are capable of being used for the provision of an electronic communications service.

• (4A) In subsections (3)(b)(ii) and (4)(d), the references to an electronic communications service include the conveyance by means of an electronic communications network of signals, including an information society service or content service so conveyed.

• (4B) In subsection (4A)—

• “content service” has the meaning given by section 32(7), and

• “information society service” has the meaning given by section 51(9).

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) For the purposes of this Chapter, where there is a contravention of an obligation that requires a person to do anything within a particular period or before a particular time, that contravention shall be taken to continue after the end of that period, or after that time, until that thing is done.

• (7) References in this Chapter to remedying the consequences of a contravention include references to paying an amount to a person—

• (a) by way of compensation for loss or damage suffered by that person; or

• (b) in respect of annoyance, inconvenience or anxiety to which he has been put.

• (8) In determining for the purposes of provisions of this Chapter whether a contravention is a repeated contravention for any purposes, a notification of a contravention under that provision shall be disregarded if it has been withdrawn before the imposition of a penalty in respect of the matters notified.

• (9) For the purposes of this section a service is made available to members of the public if members of the public are customers, in respect of that service, of the provider of that service.

Chapter 2 — Spectrum use

General functions relating to spectrum use

General functions of OFCOM in relation to radio spectrum

152

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

United Kingdom Plan for Frequency Authorisation

153

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of OFCOM when carrying out spectrum functions

154

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advisory service in relation to interference

155

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Directions with respect to the radio spectrum

156

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure for directions under s. 156

157

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Reservation of spectrum for multiplex use

Special duty in relation to television multiplexes

158

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recognised spectrum access

Grant of recognised spectrum access

159

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Effect of grant of recognised spectrum access

160

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Charges in respect of grants of recognised spectrum access

161

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conversion into and from wireless telegraphy licences

162

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Crown use of the radio spectrum

Payments for use of radio spectrum by the Crown

163

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Limitations and exemptions applied to spectrum use

Limitations on authorised spectrum use

164

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms etc. of wireless telegraphy licences

165

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exemption from need for wireless telegraphy licence

166

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Award and transfer of licences

Bidding for wireless telegraphy licences

167

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Spectrum trading

168

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Variation and revocation of licences

Variation and revocation of wireless telegraphy licences

169

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Wireless telegraphy register

Wireless telegraphy register

170

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Information requirements

Information requirements in relation to wireless telegraphy licences

171

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal proceedings etc.

Contraventions of conditions for use of wireless telegraphy

172

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of “repeated contravention” in s. 172

173

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure for prosecutions of wireless telegraphy offences

174

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special procedure for contraventions by multiplex licence holders

175

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amount of penalty under s. 175

176

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Relevant amount of gross revenue” for the purposes of s. 176

177

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceedings for an offence relating to apparatus use

178

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification of penalties for certain wireless telegraphy offences

179

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fixed penalties for certain wireless telegraphy offences

180

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of arrest

181

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Forfeiture etc. of restricted apparatus

182

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Construction of 1949 Act

Modification of definition of “undue interference”

183

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification of definition of “wireless telegraphy”

184

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 3 — Disputes and appeals

Disputes

Reference of disputes to OFCOM

185

• (1) This section applies in the case of a dispute relating to the provision of network access if it is—

• (a) a dispute between different communications providers;

• (b) a dispute between a communications provider and a person who makes associated facilities available;

• (c) a dispute between different persons making such facilities available;

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1A) This section also applies in the case of a dispute relating to the provision of network access if—

• (a) it is a dispute between a communications provider and a person who is identified, or is a member of a class identified, in a condition imposed on the communications provider under section 45; and

• (b) the dispute relates to entitlements to network access that the communications provider is required to provide to that person by or under that condition.

• (2) This section also applies in the case of any other dispute if—

• (a) it relates to rights or obligations conferred or imposed by or under a condition set under section 45, or any of the enactments relating to the management of the radio spectrum ;

• (b) it is a dispute between different communications providers; and

• (c) it is not an excluded dispute.

• (3) Any one or more of the parties to the dispute may refer it to OFCOM.

• (4) A reference made under this section is to be made in such manner as OFCOM may require.

• (5) The way in which a requirement under subsection (4)—

• (a) is to be imposed, or

• (b) may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

• (6) Requirements imposed under subsection (4) may make different provision for different cases.

• (7) A dispute is an excluded dispute for the purposes of subsection (2) if it is about—

• (a) obligations imposed on a communications provider by SMP apparatus conditions;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) For the purposes of this section—

• (a) the disputes that relate to the provision of network access include disputes as to the terms or conditions on which it is or may be provided in a particular case; and

• (b) the disputes that relate to an obligation include disputes as to the terms or conditions on which any transaction is to be entered into for the purpose of complying with that obligation.

Action by OFCOM on dispute reference

186

• (1) This section applies where a dispute is referred to OFCOM under and in accordance with section 185.

• (2) OFCOM must decide whether or not it is appropriate for them to handle the dispute.

• (2A) In relation to a dispute falling within subsection 185(1), OFCOM may in particular take into account their priorities and available resources in considering whether it is appropriate for them to handle the dispute.

• (3) In relation to a dispute falling within section 185(1A) or (2), Unless they consider—

• (a) that there are alternative means available for resolving the dispute,

• (b) that a resolution of the dispute by those means would be consistent with the six requirements set out in section 4, and

• (c) that a prompt and satisfactory resolution of the dispute is likely if those alternative means are used for resolving it,

their decision must be a decision that it is appropriate for them to handle the dispute.

• (4) As soon as reasonably practicable after OFCOM have decided—

• (a) that it is appropriate for them to handle the dispute, or

• (b) that it is not,

they must inform each of the parties to the dispute of their decision and of their reasons for it.

• (5) The notification must state the date of the decision.

• (6) In relation to a dispute falling within section 185(1A) or (2), Where—

• (a) OFCOM decide that it is not appropriate for them to handle the dispute, but

• (b) the dispute is not resolved by other means before the end of the four months after the day of OFCOM’s decision,

the dispute may be referred back to OFCOM by one or more of the parties to the dispute.

Legal proceedings about referred disputes

187

• (1) Where a dispute is referred or referred back to OFCOM under this Chapter, the reference is not to prevent—

• (a) the person making it,

• (b) another party to the dispute,

• (c) OFCOM, or

• (d) any other person,

from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.

• (2) Nor is the reference or reference back to OFCOM under this Chapter of a dispute to prevent OFCOM from—

• (a) giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of any obligation imposed by or under any an enactment;

• (b) exercising any of their other powers under any enactment in relation to a contravention of such an obligation; or

• (c) taking any other step in preparation for or with a view to doing anything mentioned in the preceding paragraphs.

• (3) If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—

• (a) OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires; and

• (b) the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make such a determination.

• (4) Subsection (1) is subject to section 190(8) and to any agreement to the contrary binding the parties to the dispute.

• (5) In this section “legal proceedings” means civil or criminal proceedings in or before a court.

Procedure for resolving disputes

188

• (1) This section applies where—

• (a) OFCOM have decided under section 186(2) that it is appropriate for them to handle a dispute; or

• (b) a dispute is referred back to OFCOM under section 186(6).

• (2) OFCOM must—

• (a) consider the dispute; and

• (b) make a determination for resolving it.

• (3) The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.

• (4) In the case of a dispute referred back to OFCOM under section 186(6), that procedure may involve allowing the continuation of a procedure that has already been begun for resolving the dispute by alternative means.

• (5) Except in exceptional circumstances and subject to section 187(3), OFCOM must make their determination no more than four months after the following day—

• (a) in a case falling within subsection (1)(a), the day of the decision by OFCOM that it is appropriate for them to handle the dispute; and

• (b) in a case falling within subsection (1)(b), the day on which the dispute is referred back to them.

• (6) Where it is practicable for OFCOM to make their determination before the end of the four month period, they must make it as soon in that period as practicable.

• (7) OFCOM must—

• (a) send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute; and

• (b) publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.

• (8) The publication of information under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention, to the extent that they consider appropriate, of members of the public.

Disputes involving other member States

189

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Resolution of referred disputes

190

• (1) Where OFCOM make a determination for resolving a dispute referred to them under this Chapter, their only powers are those conferred by this section.

• (2) Their main power (except in the case of a dispute relating to rights and obligations conferred or imposed by or under the enactments relating to the management of the radio spectrum) is to do one or more of the following—

• (a) to make a declaration setting out the rights and obligations of the parties to the dispute;

• (b) to give a direction fixing the terms or conditions of transactions between the parties to the dispute;

• (c) to give a direction imposing an obligation, enforceable by the parties to the dispute, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM; and

• (d) for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties of the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.

• (2A) In relation to a dispute falling within section 185(1), OFCOM must exercise their powers under subsection (2) in the way that seems to them most appropriate for the purpose of securing—

• (a) efficiency;

• (b) sustainable competition;

• (c) efficient investment and innovation; and