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Communications Bill


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

    36

 

           (c)           the publication under section 24 of any information or advice that it

appears to OFCOM to be appropriate to make available to the persons

mentioned in subsection (2)(a) to (c) of that section; and

           (d)           the function of taking any steps that OFCOM consider it necessary to

take—

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                  (i)                 in preparation for the carrying out of any of the functions

mentioned in paragraphs (a) to (c) of this subsection; or

                  (ii)                for the purpose of facilitating the carrying out of those functions

or otherwise in connection with carrying them out.

     (6)    The relevant Chapter 1 functions are—

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           (a)           OFCOM’s functions under sections 31 to 35 and 42;

           (b)           the setting, modification and enforcement of conditions under section

43;

           (c)           the supervision, as respects the requirements of sections 31 to 35 and of

any such conditions, of communications providers and of persons who

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make associated facilities available;

           (d)           the monitoring of compliance with those requirements and with any

such conditions;

           (e)           the functions conferred on OFCOM by or under section 53;

           (f)           their functions under section 103;

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           (g)           their functions under sections 104 to 117;

           (h)           their functions under sections 183 to 189;

           (i)           securing international co-operation in relation to the regulation of

electronic communications networks, electronic communications

services and associated facilities;

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           (j)           securing the harmonisation and standardisation of the regulation of

electronic communications networks, electronic communications

services and associated facilities;

           (k)           market analysis and any monitoring of the controls operating in the

markets for electronic communications networks, electronic

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communications services and associated facilities;

           (l)           OFCOM’s functions under this section and sections 37 to 41.

     (7)    A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is

the purpose of ascertaining the effectiveness of one or more of the following—

           (a)           the regulation of the provision of electronic communications networks

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or electronic communications services;

           (b)           the regulation of the making available of associated facilities;

           (c)           the mechanisms in place for the handling, by communications

providers and by persons making such facilities available, of

complaints made to them by consumers in markets for such services or

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facilities;

           (d)           the mechanisms in place for resolving disputes between such

consumers and communications providers or persons who make such

facilities available.

     (8)    OFCOM’s power to fix charges for a particular case includes—

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           (a)           power to provide that the charges in that case are to be equal to the

amounts produced by a computation made in the manner, and by

reference to the factors, specified by them;

           (b)           power to provide for different charges to be imposed in that case on

different descriptions of persons; and

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

    37

 

           (c)           power to provide for particular descriptions of persons falling within

subsection (2)(d) to (f) to be excluded from the liability to pay charges

in that case.

     (9)    As soon as reasonably practicable after the end of each charging year, OFCOM

must publish a statement setting out, in respect of that year—

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           (a)           the aggregate amounts of the administrative charges for that year that

have been received by OFCOM;

           (b)           the aggregate amount of the administrative charges for that year that

remain outstanding and are likely to be paid or recovered; and

           (c)           the cost to OFCOM of carrying out the functions mentioned in

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subsection (5).

     (10)   Any deficit or surplus shown (after applying this subsection for all previous

years) by a statement under subsection (9) shall be carried forward and taken

into account in determining what is required to satisfy the requirement

imposed by virtue of subsection (4)(a) in relation to the following year.

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     (11)   Section 32 applies in relation to the making and withdrawal of a designation

for the purposes of this section as it applies to the making and withdrawal of a

designation for the purposes of section 31.

     (12)   In this section “charging year” means—

           (a)           the period beginning with the commencement of this section and

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ending with the next 31st March; or

           (b)           any subsequent period of twelve months beginning with 1st April.

 37    Supplemental provision about fixing charges

     (1)    OFCOM’s power to fix a charge under section 36

           (a)           is to be exercisable only by the publication or giving of such notification

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as they consider appropriate for bringing the charge to the attention of

the persons who, in their opinion, are likely to be affected by it; and

           (b)           includes power, by setting it out in that notification, to fix the time at

which the charge is to become due to OFCOM.

     (2)    A charge fixed under section 36 for a charging year may be fixed in terms

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providing for a deduction from the charge on a proportionate basis to be made

for a part of the year during which—

           (a)           the network, service or facility in respect of which it is fixed is not

provided or made available by the person otherwise liable to the

charge;

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           (b)           the universal service condition in respect of which it is fixed does not

apply in that person’s case;

           (c)           the SMP apparatus condition in respect of which it is fixed does not

apply in that person’s case; or

           (d)           the electronic communications code does not apply in that person’s

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case.

     (3)    Such a charge may also be fixed (subject to subsection (4)) so that it is referable,

in whole or in part—

           (a)           to the provision or making available of a network, service or facility

during a part of the year falling before the fixing of the charge;

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           (b)           to the application of a universal service condition to a person for a part

of the year so falling;

 

 

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

    38

 

           (c)           to a person’s being a person to whom an SMP apparatus condition

applies for a part of the year so falling; or

           (d)           to the application of the electronic communications code in a person’s

case during a part of the year so falling.

     (4)    A charge may be fixed so as to be referable to a time before it is fixed to the

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extent only that both—

           (a)           the imposition of the charge, and

           (b)           the amount of the charge,

            are required by, and consistent with, the statement of charging principles in

force at the beginning of the charging year.

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     (5)    Before making or revising a statement of charging principles, OFCOM must

consult such of the persons who, in OFCOM’s opinion, are likely to be affected

by those principles as they think fit.

     (6)    The way in which a statement of charging principles must be made or may be

revised is by the publication of the statement or revised statement in such

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manner as OFCOM consider appropriate for bringing it to the attention of the

persons who, in their opinion, are likely to be affected by it.

     (7)    References in this section to a statement of charging principles are references to

a statement by OFCOM of the principles that they are proposing to apply in

fixing charges under section 36 for a charging year.

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     (8)    In this section “charging year” has the same meaning as in section 36.

 38    Notification of non-payment of charges

     (1)    OFCOM are not entitled to bring proceedings for the recovery from a person

of an administrative charge fixed for any year under section 36 unless they

have given that person a notification under this section with respect to the

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amount they are seeking to recover.

     (2)    Where OFCOM determine that there are reasonable grounds for believing that

a person is in contravention (whether in respect of the whole or a part of a

charge) of a requirement to pay such an administrative charge, they may give

him a notification under this section.

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     (3)    A notification under this section is one which—

           (a)           sets out the determination made by OFCOM; and

           (b)           specifies the period during which the person notified has an

opportunity of doing the things specified in subsection (4).

     (4)    Those things are—

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           (a)           making representations about the notified determination; and

           (b)                         paying the unpaid charge or (as the case may be) the amount

outstanding.

     (5)    Subject to subsections (6) to (8), the period for doing those things must be the

period of one month beginning with the day after the one on which the

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notification was given.

     (6)    OFCOM may, if they think fit, allow a longer period for doing those things

either—

           (a)           by specifying a longer period in the notification; or

 

 

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

    39

 

           (b)           by subsequently, on one or more occasions, extending the specified

period.

     (7)    The person notified shall have a shorter period for doing those things if a

shorter period is agreed between OFCOM and the person notified.

     (8)    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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     (9)    A notification under this section—

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

requirement to pay an administrative charge; 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.

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     (10)   Where a notification under this section has been given to a person in respect of

an amount outstanding, OFCOM may give a further notification in respect of

the whole or a part of that amount if, and only if—

           (a)           the subsequent notification is in respect of so much of a period during

which that amount was outstanding as falls after a period to which the

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earlier notification relates; or

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

been imposed in respect of the matters notified.

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

relation to a notification with respect to that contravention, if—

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           (a)           a previous notification under this section has been given in respect of

the same contravention or in respect of another contravention of a

requirement to pay an administrative charge; and

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

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

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of section 39(2) that the contravention to which the previous

notification related did occur.

 39    Penalties for non-payment of charges

     (1)    This section applies where—

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

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under section 38;

           (b)           OFCOM have allowed the notified charge payer an opportunity of

making representations about the notified determination; and

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

     (2)    OFCOM may impose a penalty on the notified charge payer if he—

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           (a)           has, in one or more of the respects notified, been in contravention of a

requirement to pay an administrative charge fixed under section 36;

and

           (b)           has not, during the period allowed under section 38, paid the whole of

the notified amount outstanding.

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

    40

 

     (3)    Where a notification under section 38 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

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

in the notification.

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

exceeding twice the amount of the charge fixed for the relevant year, as

OFCOM determine to be—

           (a)           appropriate; and

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

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

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

           (b)           any steps taken by him towards paying the amounts that he was

notified under section 38 were outstanding

     (7)    Where OFCOM impose a penalty on a person under this section, they shall—

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           (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.

     (8)    A penalty imposed under this section—

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           (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)    In this section “the relevant year”, in relation to a contravention of a

requirement to pay the whole or a part of the administrative charge fixed for

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any year, means that year.

     (10)   The provisions of this section do not affect OFCOM’s power, apart from those

provisions, to bring proceedings (whether before or after the imposition of a

penalty under this section) for the recovery of the whole or part of an amount

due to them under section 36(1).

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 40    Suspending service provision for non-payment

     (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 to pay administrative charges fixed under section 36

(whether in respect of the whole or a part of the charges);

           (b)           that the contraventions are not contraventions relating only to charges

in respect of the application to the contravening provider of SMP

apparatus conditions;

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           (c)           that the bringing of proceedings for the recovery of the amounts

outstanding has failed to secure complete compliance by the

contravening provider with the requirements to pay the charges fixed

in his case, or has no reasonable prospect of securing such compliance;

           (d)           that an attempt, by the imposition of penalties under section 39, to

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secure such compliance has failed; and

 

 

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

    41

 

           (e)           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 that the entitlement of the contravening provider to provide

electronic communications networks or electronic communications

5

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

direction.

     (3)    A direction under this section—

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           (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

whom it is given.

     (4)    A direction under this section—

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           (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

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

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

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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—

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

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

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

been put in consequence of the direction.

     (6)    OFCOM are not to give a direction under this section unless they have—

           (a)           notified the contravening provider of the proposed direction and of the

conditions (if any) which they are proposing to impose by that

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direction;

           (b)           provided him with an opportunity of making representations about the

proposals and of proposing steps for remedying the situation; and

           (c)           considered every representation and proposal made to them during the

period allowed by them for the contravening provider to take

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advantage of that opportunity.

     (7)    That period must be one ending not less than one month after the day of the

giving of the notification.

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

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

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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

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

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

of requirements to pay administrative charges to the extent that—

 

 

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

    42

 

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

38, OFCOM have determined for the purposes of section 39(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

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that person in respect of the same or different failures to pay

administrative charges.

 41    Enforcement of directions under s. 40

     (1)    A person is guilty of an offence if he provides an electronic communications

network or electronic communications service, or makes available any

10

associated facility—

           (a)           while his entitlement to do so is suspended by a direction under section

40; or

           (b)           in contravention of a restriction contained in such a direction.

     (2)    A person guilty of an offence under subsection (1) shall be liable—

15

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum;

           (b)           on conviction on indictment, to a fine.

     (3)    The duty of a person to comply with a condition of a direction under section 40

shall be a duty owed to every person who may be affected by a contravention

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of the condition.

     (4)    Where a duty is owed by virtue of subsection (3) to a person—

           (a)           a breach of the duty that causes that person to sustain loss or damage,

and

           (b)           an act which—

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                  (i)                 by inducing a breach of the duty or interfering with its

performance, causes that person to sustain loss or damage, and

                  (ii)                is done wholly or partly for achieving that result,

            shall be actionable at the suit or instance of that person.

     (5)    In proceedings brought against a person by virtue of subsection (4)(a) it shall

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be a defence for that person to show that he took all reasonable steps and

exercised all due diligence to avoid contravening the condition in question.

     (6)    Sections 92 to 97 apply in relation to a contravention of conditions imposed by

a direction under section 40 as they apply in relation to a contravention of

conditions set under section 43.

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Register of providers required to notify or to pay charges

 42    Duty of OFCOM to keep publicly accessible register

     (1)    It shall be the duty of OFCOM to establish and maintain a register for the

purposes of section 31.

     (2)    OFCOM must record in the register—

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           (a)           every designation by them for the purposes of section 31 or 36;

           (b)           every withdrawal by them of such a designation;

           (c)           every notification given to them under section 31; and

 

 

 
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