Communications Act 2003

[F1 105O Power of OFCOM to give assessment notices U.K.

(1) This section applies for the purposes of an assessment under section 105N in respect of the provider of a public electronic communications network or a public electronic communications service.

(2) OFCOM may by notice (“an assessment notice”) impose on the provider a duty to do any of the following things—

(a) carry out specified tests or tests of a specified description in relation to the network or service;

(b) make arrangements of a specified description for another person to carry out specified tests or tests of a specified description in relation to the network or service;

(c) make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service (not exceeding the number who are willing to be interviewed);

(d) permit an authorised person to enter specified premises;

(e) permit an authorised person to observe any operation taking place on the premises that relates to the network or service;

(f) direct an authorised person to equipment or other material on the premises that is of a specified description;

(g) direct an authorised person to documents on the premises that are of a specified description;

(h) assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises;

(i) comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view;

(j) permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view;

(k) provide an authorised person with an explanation of such documents, information, equipment or material.

(3) The references in subsection (2)(a) and (b) to tests in relation to the network or service include references to—

(a) tests in relation to premises used in connection with the provision of the network or service;

(b) tests in relation to persons involved in the provision of the network or service.

(4) An assessment notice may impose on the provider a duty to carry out, or to make arrangements for another person to carry out, a test in relation to the network or service that risks causing a security compromise, loss to a person or damage to property only if the test consists of the use of techniques that might be expected to be used by a person seeking to cause a security compromise.

(5) An assessment notice may not impose on the provider a duty to permit an authorised person to enter domestic premises.

(6) An assessment notice may not impose on the provider a duty to do anything that would result in the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings.

(7) An assessment notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with.

(8) A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period within which an appeal under section 192 can be brought in respect of the assessment notice (ignoring any power to extend the period within which an appeal could be brought).

(9) If an appeal under section 192 is brought in respect of an assessment notice or any provision of an assessment notice, the provider need not comply with any duty imposed by the notice or the provision pending the determination or withdrawal of the appeal.

(10) An assessment notice must provide information about—

(a) the consequences of failing to comply with a duty imposed by the notice; and

(b) the right of appeal in respect of the notice under section 192.

(11) An assessment notice may by further notice—

(a) be revoked by OFCOM;

(b) be varied by OFCOM so as to make it less onerous.

(12) In this section—

• “authorised person” means an employee of, or person authorised by, OFCOM;

• “domestic premises” means premises, or a part of premises, used as a dwelling;

• “specified” means specified in the assessment notice.]

Textual Amendments

F1 Ss. 105N-105R inserted (1.10.2022) by Telecommunications (Security) Act 2021 (c. 31), ss. 6(2), 28(2)(b); S.I. 2022/931, reg. 2(b)