Communications Act 2003

Notification by providers

33Advance notification to OFCOM

(1)A person shall not—

(a)provide a designated electronic communications network,

(b)provide a designated electronic communications service, or

(c)make available a designated associated facility,

unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.

(2)An electronic communications network, electronic communications service or associated facility is designated for the purposes of this section if it is of a description of networks, services or facilities that is for the time being designated by OFCOM as a description of networks, services or facilities for which notification under this section is required.

(3)A person who has given a notification for the purposes of subsection (1) must, before—

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

(b)ceasing to provide it or to make it available,

give a notification to OFCOM of the differences or (as the case may be) of his intention to cease to provide the network or service or to make the facility available.

(4)A notification for the purposes of this section must—

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

(b)contain all such information as OFCOM may require.

(5)The only information OFCOM may require a notification to contain is—

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

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

(c)particulars identifying the person giving the notification;

(d)particulars identifying one or more persons with addresses in the United Kingdom who, for the purposes of matters relating to the notified network, service or facility, are authorised to accept service at an address in the United Kingdom on behalf of the person giving the notification;

(e)particulars identifying one or more persons who may be contacted if there is an emergency that is caused by or affects the provision of the notified network, service or facility;

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

(6)The declaration of the relevant proposal that may be required under subsection (5) is whichever of the following is appropriate in the case of the person giving the notification—

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

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

(c)a declaration of his proposal to cease to provide the network or service so specified or to cease to make available the facility so specified.

(7)Requirements imposed under subsection (4) are not to require a notification by a person to contain particulars falling within subsection (5)(d) in a case in which—

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

(b)the notification contains a statement under subsection (8);

(c)the notification sets out an address in a member State at which service will be accepted by the person who, in accordance with that statement, is authorised to accept it; and

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

(8)That statement is one which—

(a)declares that the person authorised, for the purposes of matters relating to the notified network, service or facilities, to accept service on behalf of the person giving the notification is that person himself; or

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

(9)The reference in subsection (3) to providing or making available a notified network, service or facility with significant differences is a reference to continuing to provide it, or to make it available, after a change in whatever falling within subsection (5)(a) to (f) was last notified to OFCOM under this section.

(10)References in this section to accepting service at an address are references—

(a)to accepting service of documents or process at that address; or

(b)otherwise to receiving notifications at that address;

and the reference in subsection (7) to effecting service at an address is to be construed accordingly.

(11)Where a description of electronic communications network, electronic communications service or associated facility is designated for the purposes of this section at a time when a network, service or facility of that description is already being provided or made available by a person—

(a)that person’s obligation under this section to give a notification before beginning to provide or make available that network, service or facility shall have effect as an obligation to give a notification within such period after the coming into force of the designation as may be specified in the notice in which the designation is contained; and

(b)that notification is to be one stating that that person is already providing the network or service, or making the facility available (rather than that it is his intention to do so).

(12)Subsection (11) has effect subject to any transitional provision—

(a)which is contained in the notification setting out the designation; and

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

34Designations and requirements for the purposes of s. 33

(1)Before—

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

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

OFCOM must consult such of the persons who, in their opinion, are likely to be affected by it as they think fit.

(2)Before making or withdrawing a designation for the purposes of section 33 OFCOM must also consult the Secretary of State.

(3)The way in which a designation for the purposes of section 33 or a requirement under subsection (4) of that section—

(a)is to be made or imposed, or

(b)may be withdrawn or modified,

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

(4)A designation for the purposes of section 33 may be framed by reference to any such description of networks, services or facilities, or such other factors, as OFCOM think fit.

(5)Requirements imposed under section 33(4) may make different provision for different cases.

35Notification of contraventions of s. 33

(1)Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, they may give him a notification under this section.

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

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

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

(3)Those things are—

(a)making representations about the determination; and

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

(4)Subject to subsections (5) to (7), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(5)OFCOM may, if they think fit, allow a longer period for doing those things either—

(a)by specifying a longer period in the notification; or

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

(6)The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(7)The person notified shall also have a shorter period if—

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

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

(c)the shorter period has been specified in the notification.

(8)A notification under this section—

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

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

(9)Where a notification under this section has been given to a person in respect of a contravention of section 33, OFCOM may give a further notification in respect of the same contravention if, and only if—

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

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

(10)For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a)a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of section 33; and

(b)the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 36(2) or 37(2) that the contravention to which the previous notification related did occur.

36Enforcement notification for contravention of s. 33

(1)This section applies where—

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

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

(c)the period allowed for the making of the representations has expired.

(2)OFCOM may give the notified provider an enforcement notification if they are satisfied—

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

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

(3)An enforcement notification is a notification which imposes a requirement on the notified provider to take all such steps for providing OFCOM with that information as may be specified in the notification.

(4)A decision of OFCOM to give an enforcement notification to a person—

(a)must be notified to that person, together with the reasons for the decision, no later than a week after the day on which it is taken; and

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

(5)It shall be the duty of a person to whom an enforcement notification has been given to comply with it.

(6)That duty shall be enforceable in civil proceedings by OFCOM—

(a)for an injunction;

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

(c)for any other appropriate remedy or relief.

37Penalties for contravention of s. 33

(1)This section applies (in addition to section 36) where—

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

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

(c)the period allowed for the making of the representations has expired.

(2)OFCOM may impose a penalty on the notified provider if he—

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

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

(3)Where a notification under section 35 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

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

(5)OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 36 in respect of the notified contravention.

(6)The amount of a penalty imposed under this section is to be such amount not exceeding £10,000 as OFCOM determine to be—

(a)appropriate; and

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

(7)In making that determination OFCOM must have regard to—

(a)any representations made to them by the notified provider; and

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

(8)Where OFCOM impose a penalty on a person under this section, they shall—

(a)within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for that decision; and

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

(9)A penalty imposed under this section—

(a)must be paid to OFCOM; and

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

(10)The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (6).

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