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Section 109 Restrictions and conditions subject to which code appliesI1I2C1

United Kingdom

(1)

Where the electronic communications code is applied in any person’s case by a direction given by OFCOM, that code is to have effect in that person’s case subject to such restrictions and conditions as may be contained in regulations made by the Secretary of State.

(2)

In exercising his power to make regulations under this section it shall be the duty of the Secretary of State to have regard to each of the following—

(a)

the duties imposed on OFCOM by sections 3 and 4;

(b)

the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside;

(ba)

F1the need to promote economic growth in the United Kingdom;

(c)

the need to ensure that highways are not damaged or obstructed, and traffic not interfered with, to any greater extent than is reasonably necessary;

(d)

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

(da)

F2the need to ensure that restrictions and conditions are objectively justifiable and proportionate to what they are intended to achieve;

(e)

the need to secure that a person in whose case the code is applied will be able to meet liabilities arising as a consequence of—

(i)

the application of the code in his case; and

(ii)

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

(2A)

F3F4Subsection (2B) applies if the Secretary of State has complied with subsection (2)(b) in connection with any particular exercise of the power to make regulations under this section.

(2B)

The Secretary of State is to be treated as also having complied with any duty imposed in connection with that exercise of that power by any of the following—

  • section 11A(2) of the National Parks and Access to the Countryside Act 1949;

  • section 85(1) of the Countryside and Rights of Way Act 2000;

  • section 17A(1) of the Norfolk and Suffolk Broads Act 1988;

  • section 14 of the National Parks (Scotland) Act 2000 (asp 10);

  • Article 4(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (S.I. 1985/170 (N.I. 1)).

(3)

The power of the Secretary of State to provide by regulations for the restrictions and conditions subject to which the electronic communications code has effect includes power to provide for restrictions and conditions which are framed by reference to any one or more of the following—

(a)

the making of a determination in accordance with the regulations by a person specified in the regulations;

(b)

the giving of an approval or consent by a person so specified; or

(c)

the opinion of any person.

(4)

Before making any regulations under this section, the Secretary of State must consult—

(a)

OFCOM; and

(b)

such other persons as he considers appropriate.

Annotations

Textual amendments

F1

S. 109(2)(ba) inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(1), 35(2) (with s. 36(6))

F2

S. 109(2)(da) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 67 (with Sch. 3 para. 2)

F3

S. 109(2A) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 7, 118(2)

F4

S. 109(2A)(2B) inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(2), 35(2)

Modifications

C1

Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

C2

S. 109(4) modified (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(4), 35(2)

Commencement

I1

S. 109 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))

I2

S. 109 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)