Communications Act 2003, section 4

Duties in relation to certain regulatory functions

Part 1 Functions of OFCOM

(1)This section applies to the following functions of OFCOM—

(a)their functions under Chapter 1 of Part 2;

(b)their functions under the enactments relating to the management of the radio spectrum;

(c)their functions under Chapter 3 of Part 2 in relation to disputes referred to them under section 185;

(d)their functions under sections 24 and 25 so far as they relate to information required for purposes connected with matters in relation to which functions specified in this subsection are conferred on OFCOM; and

(e)their functions under section 26 so far as they are carried out for the purpose of making information available to persons mentioned in subsection (2)(a) to (c) of that section.

(2)It shall be the duty of OFCOM, in carrying out any of those functions, to act in accordance with the [F15six requirements set out in the following provisions of this sectionF15] .

(3)F16The first ... requirement is a requirement to promote competition—

(a)in relation to the provision of electronic communications networks and electronic communications services;

(b)in relation to the provision and making available of services and facilities that are provided or made available in association with the provision of electronic communications networks or electronic communications services; and

(c)in relation to the supply of directories capable of being used in connection with the use of electronic communications networks or electronic communications services.

F17 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The [F18secondF18] requirement is a requirement to promote the interests of all [F19members of the public in the United KingdomF19] .

(6)The [F20thirdF20] requirement is a requirement to take account of the desirability of OFCOM’s carrying out their functions in a manner which, so far as practicable, does not favour—

(a)one form of electronic communications network, electronic communications service or associated facility; or

(b)one means of providing or making available such a network, service or facility,

over another.

[F21 (6A)The [F22 thirdF22] requirement does not apply to—

(a)the imposition, in relation to a wireless telegraphy licence, of a limitation of a kind falling within section 9ZA(1) of the Wireless Telegraphy Act 2006; or

(b)the review, variation or removal of such a limitation.F21]

(7)The [F23fourthF23] requirement is a requirement to encourage, to such extent as OFCOM consider appropriate for the purpose mentioned in subsection (8), the provision of network access and service interoperability.

(8)That purpose is the purpose of securing—

(a)F24,F25efficiency and sustainable competition ...; ...

[F26 (aa)efficient investment and innovation; andF26]

(b)the maximum benefit for the persons who are customers of communications providers and of persons who make [F27associated facilitiesF27] available.

(9)The [F28fifthF28] requirement is a requirement to encourage such compliance with the standards mentioned in subsection (10) as is necessary for—

(a)facilitating service interoperability;

[F29 (aa)facilitating end-to-end connectivity;

(ab)facilitating the changing by end-users of their communications provider;

(ac)facilitating the retention by end-users of their telephone numbers after a change of communications provider; andF29]

(b)securing freedom of choice for the customers of communications providers.

(10)Those standards are—

(a)standards or specifications from time to time drawn up and published [F30by the European CommissionF30] in accordance with Article 17 of the Framework Directive[F31 or Article 39 of the EECC DirectiveF31][F32 (whether before or after IP completion day)F32] ;

(b)the standards and specifications from time to time adopted by—

(i)the European Committee for Standardisation;

(ii)the European Committee for Electrotechnical Standardisation; [F33andF33]

(iii)the European Telecommunications Standards Institute; and

(c)the international standards and recommendations from time to time adopted by—

(i)the International Telecommunication Union;

(ii)F34the International Organisation for Standardisation; ...

[F35 (iia)the European Conference of Postal and Telecommunications Administrations; andF35]

(iii)the International Electrotechnical Committee.

[F36 (10A)The [F37 sixthF37] requirement is a requirement to promote connectivity and access to very high capacity networks by members of the public and businesses in the United Kingdom.F36]

(11)Where it appears to OFCOM that any of the [F38six requirements in this sectionF38] conflict with each other, they must secure that the conflict is resolved in the manner they think best in the circumstances.

(12)In this section—

  • F39 ...

  • [F40 “end-to-end connectivity” has the meaning given by section 74(3); F40]

  • “network access” and “service interoperability” each has the same meaning as in Chapter 1 of Part 2.

  • [F41 “telephone number” has the meaning given by section 56(5). F41]

[F42 (12A) In this Act “very high capacity network” means an electronic communications network which—

(a)consists wholly of optical fibre elements at least up to the distribution point at the serving location; or

(b)is capable of delivering, under usual peak-time conditions, network performance that, in OFCOM’s opinion, is similar, in terms of available downlink and uplink bandwidth, resilience, error-related parameters and latency and its variation, to the network performance of a network falling within paragraph (a).

(12B)For the purposes of subsection (12A)(b), network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point.F42]

[F43 (13) In this section and sections 4A and 5, “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. F43]

Definitions used in section 4 17

OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act
the enactments relating to the management of the radio spectrum

“the enactments relating to the management of the radio spectrum” means—

(a)

the Wireless Telegraphy Act 2006; and

(g)

the provisions of this Act so far as relating to that Act;

Defined in s.405(1) · see it in the full Act
information

“information” includes accounts, estimates and projections and any document;

Defined in s.405(1) · see it in the full Act
electronic communications network

(1) In this Act “electronic communications network” means—

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

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

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; ...

(iii)software and stored data ; and

(iv)(except for the purposes of sections 125 to 127) other resources, including network elements which are not active.

Defined in s.32(1) · see it in the full Act

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
electronic communications service

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
made available

(7B) Subsection (13) of section 264 (interpretation of “made available”) applies for the purposes of sub-paragraph (7) as it applies for the purposes of that section.

Defined in Sch.12 para.3(7B) · see it in the full Act
associated facility

(3) In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a)making the provision of that network or service possible;

(b)making possible the provision of other services provided by means of that network or service; or

(c)supporting the provision of such other services.

Defined in s.32(3) · see it in the full Act

“associated facility” has the meaning given by section 32;

Defined in s.405(1) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act
wireless telegraphy licence

“wireless telegraphy licence” means a licence granted under section 8 of the Wireless Telegraphy Act 2006 .

Defined in s.405(1) · see it in the full Act
customers

“customers”, in relation to a communications provider or a person who makes an associated facility available, means the following (including any of them whose use or potential use of the network, service or facility is for the purposes of, or in connection with, a business)—

(a)

the persons to whom the network, service or facility is provided or made available in the course of any business carried on as such by the provider or person who makes it available;

(b)

the persons to whom the communications provider or person making the facility available is seeking to secure that the network, service or facility is so provided or made available;

(c)

the persons who wish to be so provided with the network or service, or to have the facility so made available, or who are likely to seek to become persons to whom the network, service or facility is so provided or made available;

Defined in s.405(1) · see it in the full Act
communications provider

“communications provider” means a person who (within the meaning of section 32(4)) provides an electronic communications network or an electronic communications service;

Defined in s.405(1) · see it in the full Act
end-user

(10) In sub-paragraph (8) “public electronic communications service” and “end-user” each has the same meaning as in Chapter 1 of Part 2.

Defined in Sch.12 para.5(10) · see it in the full Act
the Framework Directive

(7) In this paragraph “the Framework Directive” has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.10(7) · see it in the full Act
the EECC Directive

“the EECC Directive” means Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code;

Defined in s.405(1) · see it in the full Act
access

“access” is to be construed in accordance with subsection (4);

Defined in s.405(1) · see it in the full Act
very high capacity network

“very high capacity network” has the meaning given by section 4(12A);

Defined in s.405(1) · see it in the full Act
business

“business” includes any trade or profession;

Defined in s.405(1) · see it in the full Act

Cases considering section 4 11

EE Ltd v Office of Communications & Ors

[2017] EWCA Civ 1873 · 22 November 2017

Section 4(2) imposed an express duty on Ofcom to act in accordance with the Framework Directive article 8 requirements when setting licence fees. The court held that the 2010 Direction did not lawfully displace that duty (see paras [50]; [54]-[55]).

Telefonica O2 UK Ltd & Ors v British Telecommunications Plc & Anor

[2012] EWCA Civ 1002 · 25 July 2012Interprets

Provides the Community requirements governing Ofcom’s functions in disputes and requires them to be read consistently with the Common Regulatory Framework. (see paras [35], [63], [80], [89]) Applies to Ofcom’s functions concerning disputes referred under section 185. (see para [35]) Applies the Community requirements to Ofcom’s dispute-resolution functions. (see paras [35], [63]) Confirms that Ofcom must resolve conflicts between Community requirements as it thinks best in the circumstances. This authorised Ofcom’s balancing of consumer risks and possible benefits. (see paras [35], [86], [89], [104]) Requires Ofcom, when exercising the relevant functions, to act in accordance with the six Community requirements. (see paras [35], [80]) Identifies the first Community requirement as the promotion of competition in electronic communications and associated facilities. (see para [35]) Requires promotion of competition in electronic communications networks and services. (see para [35]) Requires promotion of competition in associated services and facilities. (see para [35]) Requires Ofcom to encourage network access and service interoperability to the extent appropriate for securing efficiency and sustainable competition and maximum customer benefit. (see paras [35], [83], [86]) Defines the purpose of the fifth Community requirement by reference to efficiency, sustainable competition and maximum customer benefit. (see para [35]) Identifies efficiency and sustainable competition in electronic communications markets as the purpose of encouraging network access and interoperability. (see para [35]) Requires attention to the maximum benefit for communications-provider customers, including callers and service providers. (see paras [35], [83], [86])

Hutchison 3G UK Ltd v The Office of Communications & Anor

[2009] EWCA Civ 683 · 16 July 2009

The court treated section 4 as requiring Ofcom to act in accordance with the Community requirements, particularly promotion of competition and network access. (see para [27]) Cited only. Cited only. Cited only. Cited only.

What each judgment says about section 4 is in the case-law panel in the full Act.

Explanatory note

31.This section creates a duty, which applies only to certain functions of OFCOM. These are their functions under:

  • Chapter 1 of Part 2;

  • the enactments relating to the management of the radio spectrum;

    *Section 405(1) defines the enactments relating to the management of the radio spectrum as the Wireless Telegraphy Act 1949, the Marine, &c., Broadcasting (Offences) Act 1967, the Wireless Telegraphy Act 1967, Part 6 of the Telecommunications Act 1984, the Wireless Telegraphy Act 1998, Chapter 2 of Part 2 of the Act and the other provisions of the Act so far as relating to any of those enactments.

  • Chapter 3 of Part 2 relating to network access disputes referred to them under section 185;

  • sections 24 and 25, so far as they relate to information required for purposes connected with matters in relation to OFCOM functions specified in this section; and

  • section 26, if carried out for the purpose of making information available to the customers of communications providers, the customers of persons who make associated facilities available and persons who use electronic communications networks, electronic communications services or associated facilities.

32.The duty is a duty to act in accordance with six Community requirements. In the event that there is any conflict between this duty and the section 3 duties, the former, which is required by the EC Communications Directives, is to take precedence.

33.The Community requirements are: (i) to promote competition; (ii) to ensure that OFCOM’s activities contribute to the development of the European internal market; (iii) to promote the interests of all persons who are citizens of the European Union; (iv) to take account of the desirability of carrying our their functions in a manner which, so far as practicable, does not favour one form of network, service or associated facility, or one means of providing or making available such a network, service or facility over another; (v) to encourage the provision of network access and service interoperability; and (vi) to encourage compliance with international standards to the extent necessary to facilitate service interoperability, and to secure a freedom of choice for customers.

  • *network access is defined in section 151 as meaning (1) interconnection of public electronic communications networks; or (2) any services, facilities or arrangements (other than interconnection) by means of which a communications provider or a person making associated facilities available is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of any network or apparatus comprised in a network, or any service or facility capable of being used to provide a service.

  • *service interoperability is defined in section 151 as interoperability between different electronic communications services.

34.Requirements (i) to (iv) implement Articles 7(1) & (2) and 8 of Directive 2002/21/EC (the “Framework Directive”). Requirement (v) implements Article 5(1) of Directive 2002/19/EC (“the Access Directive”) and Article 18 of the Framework Directive and requirement (vi) implements Article 17(2) and 18 of the Framework Directive. This section also implements Article 20 (3) of the Framework Directive and Article 7(3) of the Authorisation Directive.

All the explanatory notes for the Act

Amendments and notes

32 notes from legislation.gov.uk

Amendments

  1. F14Words in s. 4 heading substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(11); 2020 c. 1, Sch. 5 para. 1(1)
  2. F15Words in s. 4(2) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(3)(a), Sch. 1 para. 67(2)
  3. F16Word in s. 4(3) omitted (31.12.2020) by virtue of The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(3); 2020 c. 1, Sch. 5 para. 1(1)
  4. F17S. 4(4) omitted (31.12.2020) by virtue of The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(4); 2020 c. 1, Sch. 5 para. 1(1)
  5. F18Word in s. 4(5) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(5)(a); 2020 c. 1, Sch. 5 para. 1(1)
  6. F19Words in s. 4(5) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(5)(b); 2020 c. 1, Sch. 5 para. 1(1)
  7. F20Word in s. 4(6) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(6); 2020 c. 1, Sch. 5 para. 1(1)
  8. F21S. 4(6A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(a) (with Sch. 3 para. 2)
  9. F22Word in s. 4(6A) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(6); 2020 c. 1, Sch. 5 para. 1(1)
  10. F23Word in s. 4(7) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(7); 2020 c. 1, Sch. 5 para. 1(1)
  11. F24Words in s. 4(8)(a) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(i) (with Sch. 3 para. 2)
  12. F25Word in s. 4(8) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(ii) (with Sch. 3 para. 2)
  13. F26S. 4(8)(aa) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(ii) (with Sch. 3 para. 2)
  14. F27Words in s. 4(8)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(iii) (with Sch. 3 para. 2)
  15. F28Word in s. 4(9) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(8); 2020 c. 1, Sch. 5 para. 1(1)
  16. F29S. 4(9)(aa)-(ac) substituted for word (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(3)
  17. F30Words in s. 4(10)(a) inserted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/246), reg. 1(2), Sch. 1 para. 3(9); 2020 c. 1, Sch. 5 para. 1(1)
  18. F31Words in s. 4(10)(a) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(4)
  19. F32Words in s. 4(10)(a) inserted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(3)(a), Sch. 1 para. 67(3)
  20. F33Word in s. 4(10)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(c)(i) (with Sch. 3 para. 2)
  21. F34Word in s. 4(10)(c)(ii) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(c)(ii) (with Sch. 3 para. 2)
  22. F35S. 4(10)(c)(iia) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(c)(ii) (with Sch. 3 para. 2)
  23. F36S. 4(10A) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(5)
  24. F37Word in s. 4(10A) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(3)(a), Sch. 1 para. 67(4)
  25. F38Words in s. 4(11) substituted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(3)(a), Sch. 1 para. 67(5)
  26. F39Words in s. 4(12) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(d) (with Sch. 3 para. 2)
  27. F40Words in s. 4(12) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(6)(a)
  28. F41Words in s. 4(12) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(6)(b)
  29. F42S. 4(12A)(12B) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(7)
  30. F43S. 4(13) substituted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 3(8)

Commencement

  1. I9S. 4 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
  2. I10S. 4 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)