(e) a supplier of apparatus to whom an SMP apparatus condition applies;
(f) a person in whose case the electronic communications code applies by
virtue of a direction given under section 103 otherwise than for the
purposes of the provision by him of an electronic communications
network of a designated description.
(3) OFCOM are not to fix the administrative charge for a charging year unless—
(a) at the time the charge is fixed there is in force a statement by OFCOM
of the principles that OFCOM are proposing to apply in fixing charges
under this section for that year; and
(b) the charge is fixed in accordance with those charging principles.
(4) Those principles must be such as appear to OFCOM to be likely to secure, on
the basis of such estimates of the likely costs as it is practicable for them to
(a) that, on a year by year basis, the aggregate amount of the charges
payable to OFCOM is sufficient to meet, but does not exceed, the
annual cost to OFCOM of carrying out the functions mentioned in
(b) that the cost of carrying out those functions is met by the imposition of
charges that are objectively justifiable and proportionate to the matters
in respect of which they are imposed;
(c) that the relationship between meeting the cost of carrying out those
functions and the amounts of the charges is transparent;
(d) that the charges fixed for persons who are liable to charges by reason
only of being persons to whom SMP apparatus conditions apply are
referable only to things done in, or in connection with, the setting,
modification or enforcement of SMP apparatus conditions or the
carrying out of the functions mentioned in subsection (6)(l); and
(e) that the charges fixed for persons who are liable to charges by reason
only of being persons falling within subsection (2)(f), are referable only
to costs incurred in, or in connection with, the carrying out of the
functions mentioned in subsection (6)(g) and (l).
(5) Those functions are—
(a) the relevant Chapter 1 functions;
(b) the carrying out for a Chapter 1 purpose of any research by OFCOM or
the Consumer Panel into any of the matters mentioned in section
13(1)(c) to (f);
(c) the publication under section 23 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
(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—
(a) OFCOM’s functions under sections 30 to 34 and 41;
(b) the setting, modification and enforcement of conditions under section
(c) the supervision, as respects the requirements of sections 30 to 34 and of
any such conditions, of communications providers and of persons who
make associated facilities available;
(d) the monitoring of compliance with those requirements and with any
(e) the functions conferred on OFCOM by or under section 52;
(f) their functions under section 102;
(g) their functions under sections 103 to 116;
(h) their functions under sections 182 to 188;
(i) securing international co-operation in relation to the regulation of
electronic communications networks, electronic communications
services and associated facilities;
(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
communications services and associated facilities;
(l) OFCOM’s functions under this section and sections 36 to 40.
(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
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
(d) the mechanisms in place for resolving disputes between such
consumers and communications providers or persons who make such
(8) OFCOM’s power to fix charges to be paid by persons falling within subsection
(2)(e) or (f) includes power—
(a) to fix different charges for different descriptions of such persons; and
(b) to exclude such of those persons as are of a description specified by
them from liability to a charge.
(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—
(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
(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.
(11) Section 31 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 30.
(12) In this section “charging year” means—
(a) the period beginning with the commencement of this section and
ending with the next 31st March; or
(b) any subsequent period of twelve months beginning with 1st April.
36 Supplemental provision about fixing charges
(1) OFCOM’s power to fix a charge under section 35—
(a) is to be exercisable only by the publication or giving of such notification
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 35 for a charging year may be fixed in terms
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
(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
(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;
(b) to the application of a universal service condition to a person for a part
of the year so falling;
(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
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.
(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
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 35 for a charging year.
(8) In this section “charging year” has the same meaning as in section 35.
37 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 35 unless they
have given that person a notification under this section with respect to the
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.
(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—
(a) making representations about the notified determination; and
(b) paying the unpaid charge or (as the case may be) the amount
(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
notification was given.
(6) OFCOM may, if they think fit, allow a longer period for doing those things
(a) by specifying a longer period in the notification; or
(b) by subsequently, on one or more occasions, extending the specified
(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—
(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.
(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.
(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
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—
(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
of section 38(2) that the contravention to which the previous
notification related did occur.
38 Penalties for non-payment of charges
(1) This section applies where—
(a) a person (“the notified charge payer”) has been given a notification
under section 37;
(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—
(a) has, in one or more of the respects notified, been in contravention of a
requirement to pay an administrative charge fixed under section 35;
(b) has not, during the period allowed under section 37, paid the whole of
the notified amount outstanding.
(3) Where a notification under section 37 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.
(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.
(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 37 were outstanding
(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.
(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
(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
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 35(1).
39 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
requirements to pay administrative charges fixed under section 35
(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
(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 38, to
secure such compliance has failed; and
(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
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
(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
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
(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—
(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) 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
(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
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
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.
(9) For the purposes of this section there are repeated contraventions by a person
of requirements to pay administrative charges to the extent that—
(a) in the case of a previous notification given to that person under section
37, OFCOM have determined for the purposes of section 38(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 the same or different failures to pay
40 Enforcement of directions under s. 39
(1) A person is guilty of an offence if he provides an electronic communications
network or electronic communications service, or makes available any
(a) while his entitlement to do so is suspended by a direction under section
(b) in contravention of a restriction contained in such a direction.
(2) A person guilty of an offence under subsection (1) shall be liable—