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Session 2002 - 03
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Other Bills before Parliament

Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    127

 

           (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—

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           (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.

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     (8)    A notification under this section—

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

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a contravention of a requirement, OFCOM may give a further notification in

respect of the same contravention of that requirement if, and only if—

           (a)           the contravention is one occurring after the time of the giving of the

earlier notification;

           (b)           the contravention is a continuing contravention and the subsequent

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notification is in respect of so much of a period as falls after a period to

which the earlier notification relates; or

           (c)           the earlier notification has been withdrawn without a penalty having

been imposed in respect of the notified contravention.

     (10)   For the purposes of this section a contravention is a repeated contravention, in

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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 the

same requirement; and

           (b)           the subsequent notification is given no more than twelve months after

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the day of the making by OFCOM of a determination for the purposes

of section 136(2) that the contravention to which the previous

notification related did occur.

 136   Penalties for contravention of information requirements

     (1)    This section applies where—

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           (a)           a person (“the notified person”) has been given a notification under

section 135;

           (b)           OFCOM have allowed the notified person an opportunity of making

representations about the matters notified; and

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

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

           (a)           they are satisfied that he has, in one or more of the respects notified,

been in contravention of the requirement notified under section 135;

           (b)           he has not, during the period allowed under that section, complied

with the notified requirement; and

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    128

 

           (c)           no proceedings for an offence under section 141 have been brought

against the notified person in respect of the contravention.

     (3)    Where a notification under section 135 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

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one penalty may be imposed in respect of the period of contravention specified

in the notification.

     (5)    The amount of a penalty imposed under this section is to be such amount not

exceeding £50,000 as OFCOM determine to be both—

           (a)           appropriate; and

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

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

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

           (b)           any steps taken by him towards complying with the requirements

contraventions of which have been notified to him under section 135.

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     (7)    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.

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     (8)    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.

     (9)    The Secretary of State may by order amend this section so as to substitute a

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different maximum penalty for the maximum penalty for the time being

specified in subsection (5).

     (10)   No order is to be made containing provision authorised by subsection (9)

unless a draft of the order has been laid before Parliament and approved by a

resolution of each House.

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 137   Suspending service provision for information contraventions

     (1)    OFCOM may give a direction under this section to a person who is a

communications provider or who makes associated facilities available (“the

contravening provider”) if they are satisfied—

           (a)           that he is or has been in serious and repeated contravention of

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requirements imposed under sections 132 and 133, or either of them;

           (b)           the requirements are not requirements imposed for purposes

connected with the carrying out of OFCOM’s functions in relation to

SMP apparatus conditions;

           (c)           that an attempt, by the imposition of penalties under section 136 or the

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bringing of proceedings for an offence under section 141, to secure

compliance with the contravened requirements has failed; and

           (d)           that the giving of the direction is appropriate and proportionate to the

seriousness (when repeated as they have been) of the contraventions.

     (2)    A direction under this section is—

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    129

 

           (a)           a direction that the entitlement of the contravening provider to provide

electronic communications networks or electronic communications

services, or to make associated facilities available, is suspended (either

generally or in relation to particular networks, services or facilities); or

           (b)           a direction that that entitlement is restricted in the respects set out in the

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direction.

     (3)    A direction under this section—

           (a)           must specify the networks, services and facilities to which it relates; and

           (b)           except so far as it otherwise provides, takes effect for an indefinite

period beginning with the time at which it is notified to the person to

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whom it is given.

     (4)    A direction under this section—

           (a)           in providing for the effect of a suspension or restriction to be

postponed, may provide for it to take effect only at a time determined

by or in accordance with the terms of the direction; and

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           (b)           in connection with the suspension or restriction contained in the

direction or with the postponement of its effect, may impose such

conditions on the contravening provider as appear to OFCOM to be

appropriate for the purpose of protecting that provider’s customers.

     (5)    Those conditions may include a condition requiring the making of payments—

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           (a)           by way of compensation for loss or damage suffered by the

contravening provider’s customers as a result of the direction; or

           (b)           in respect of annoyance, inconvenience or anxiety to which they have

been put in consequence of the direction.

     (6)    If OFCOM consider it appropriate to do so (whether or not in consequence of

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any representations or proposals made to them), they may revoke a direction

under this section or modify its conditions—

           (a)           with effect from such time as they may direct;

           (b)           subject to compliance with such requirements as they may specify; and

           (c)           to such extent and in relation to such networks, services or facilities, or

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parts of a network, service or facility, as they may determine.

     (7)    For the purposes of this section there are repeated contraventions by a person

of  requirements imposed under sections 132 and 133, or either of them, to the

extent that—

           (a)           in the case of a previous notification given to that person under section

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135, OFCOM have determined for the purposes of section 136(2) that

such a contravention did occur; and

           (b)           in the period of twelve months following the day of the making of that

determination, one or more further notifications have been given to

that person in respect of contraventions of such requirements;

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            and for the purposes of this subsection it shall be immaterial whether the

notifications related to the same contravention or to different contraventions of

the same or different requirements or of requirements under different sections.

 138   Suspending apparatus supply for information contraventions

     (1)    OFCOM may give a direction under this section to a person who supplies

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electronic communications apparatus (“the contravening supplier”) if they are

satisfied—

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    130

 

           (a)           that he is or has been in serious and repeated contravention of

requirements imposed under section 132;

           (b)           that an attempt, by the imposition of penalties under section 136 or the

bringing of proceedings for an offence under section 141, to secure

compliance with the contravened requirements has failed; and

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           (c)           that the giving of the direction is appropriate and proportionate to the

seriousness (when repeated as they have been) of the contraventions.

     (2)    A direction under this section is—

           (a)           a direction to the contravening supplier to cease to act as a supplier of

electronic communications apparatus (either generally or in relation to

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apparatus of a particular description); or

           (b)           a direction imposing such restrictions as may be set out in the direction

on the supply by that supplier of electronic communications apparatus

(either generally or in relation to apparatus of a particular description).

     (3)    A direction under this section takes effect, except so far as it otherwise

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provides, for an indefinite period beginning with the time at which it is notified

to the person to whom it is given.

     (4)    A direction under this section—

           (a)           may provide for a prohibition or restriction to take effect only at a time

determined by or in accordance with the terms of the direction; and

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           (b)           in connection with a prohibition or restriction contained in the

direction or with the postponement of its effect, may impose such

conditions on the contravening supplier as appear to OFCOM to be

appropriate for the purpose of protecting that supplier’s customers.

     (5)    Those conditions may include a condition requiring the making of payments—

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           (a)           by way of compensation for loss or damage suffered by the

contravening supplier’s customers as a result of the direction; or

           (b)           in respect of annoyance, inconvenience or anxiety to which they have

been put in consequence of the direction.

     (6)    If OFCOM consider it appropriate to do so (whether or not in consequence of

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representations or proposals made to them), they may revoke a direction under

this section or modify its conditions—

           (a)           with effect from such time as they may direct;

           (b)           subject to compliance with such requirements as they may specify; and

           (c)           to such extent and in relation to such apparatus or descriptions of

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apparatus as they may determine.

     (7)    For the purposes of this section contraventions by a person of requirements

imposed under section 132 are repeated contraventions if—

           (a)           in the case of a previous notification given to that person under section

135, OFCOM have determined for the purposes of section 136(2) that

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such a contravention did occur; and

           (b)           in the period of twelve months following the day of the making of that

determination, one or more further notifications have been given to

that person in respect of contraventions of such requirements;

            and for the purposes of this subsection it shall be immaterial whether the

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notifications related to the same contravention or to different contraventions of

the same or different requirements.

 

 

 
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