Section 107: Procedure for directions applying code, Communications Act 2003

OFCOM are not to give a direction applying the electronic communications code in any person's case except on an application made for the purpose by that person.

Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 makes provision about the time within which an application under subsection (1) must be determined.

If OFCOM publish a notification setting out their requirements with respect to—

the content of an application for a direction applying the electronic communications code, and

the manner in which such an application is to be made,

such an application must be made in accordance with the requirements for the time being in force.

OFCOM may—

from time to time review the requirements for the time being in force for the purposes of subsection (2); and

on any such review, modify them in such manner as they think fit by giving a notification of the revised requirements.

A modification may not be made under subsection (3) unless the modification is—

objectively justifiable, and

proportionate to what it is intended to achieve.

Before making a modification under subsection (3), OFCOM must publish a notification of the proposed modification which contains the following—

a statement of the proposal,

a statement of their reasons for the proposal, and

a statement of the period within which representations may be made to them about the proposal.

The period specified under subsection (3B)(c) must end no less than 30 days after the day of the publication of the notification.

In considering whether to apply the electronic communications code in any person's case, OFCOM must have regard, in particular, to each of the following matters—

the benefit to the public of the electronic communications network or conduit system by reference to which the code is to be applied to that person;

the practicability of the provision of that network or system without the application of the code;

the need to encourage the sharing of the use of electronic communications apparatus;

whether the person in whose case it is proposed to apply the code will be able to meet liabilities arising as a consequence of—

the application of the code in his case; and

any conduct of his in relation to the matters with which the code deals.

For the purposes of subsections (6) and (7) of section 3 OFCOM's duty under subsection (4) ranks equally with their duties under that section.

Before giving a direction under section 106, OFCOM must—

publish a notification of their proposal to give the direction; and

consider any representations about that proposal that are made to them within the period specified in the notification.

A notification for the purposes of subsection (6)(a) must contain the following—

a statement of OFCOM's proposal;

a statement of their reasons for that proposal;

a statement of the period within which representations may be made to them about the proposal.

The statement of OFCOM's proposal must—

contain a statement that they propose to apply the code in the case of the person in question;

set out any proposals of theirs to impose terms under section 106(5);

but this subsection is subject to sections 113(7) and 115(5).

The period specified as the period within which representations may be made must end no less than 30 days after the day of the publication of the notification.

The publication by OFCOM of a notification for any of the purposes of this section must be a publication in such manner as OFCOM consider appropriate for bringing the notification to the attention of the persons who, in their opinion, are likely to be affected by it.

Section 107: Procedure for directions applying code

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