Utilities Bill - continued        House of Commons
PART IIA, OTHER FUNCTIONS OF COUNCIL - continued
Functions of the Council - continued

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Investigations by Council.     94. After section 27I of the 1984 Act there is inserted-
 
 
"Power of Council to investigate consumer matters.     27IA. - (1) The Council may investigate any matter (not being a matter which it is its duty to investigate under this Part) which appears to it to be a matter relating to the interests of consumers, purchasers and other users in respect of telecommunications services and telecommunications apparatus.
 
    (2) Before undertaking an investigation under this section the Council shall notify the Authority and the Secretary of State.
 
      (3) Where the Council has investigated a matter under this section it may make a report on that matter to the Authority, the Secretary of State, the Director General of Fair Trading or any other public authority whose functions appear to the Council to be exercisable in relation to that matter.
 
      (4) Subject to subsection (5), the Council may-
 
 
    (a) send a report on any matter investigated under this section to any person who appears to the Council to have an interest in that matter; and
 
    (b) publish any such report in such manner as the Council thinks appropriate.
      (5) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be included in any report which is to be sent to any other person, or published, under subsection (4) unless one or more of paragraphs (a) to (c) of subsection (6) applies to the information.
 
      (6) Information relating to a particular individual or body may be included in such a report if-
 
 
    (a) that individual or body has consented to the disclosure;
 
    (b) it is information that is available to the public from some other source; or
 
    (c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.
      (7) Before deciding to include in such a report any information relating to a particular individual or body in pursuance of subsection (6)(c), the Council shall-
 
 
    (a) consult that person or body; and
 
    (b) have regard to any opinion expressed by the Authority as to the application of subsection (6)(c) to the information or as to the desirability or otherwise of its inclusion in the report.
      (8) The disclosure or publication by the Council of a report in accordance with this section does not contravene section 101."
 
Provision of statistical information to consumers etc.     95. - (1) After section 27C of the 1984 Act there is inserted-
 
 
"Publication of statistical information about standards of performance.     27CA. - (1) It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to-
 
    (a) the levels of performance achieved by designated operators in respect of standards of performance determined under sections 27A and 27B;
 
    (b) complaints made by consumers, purchasers and users about any matter relating to the activities of designated operators and the handling of such complaints.
      (2) In subsection (1)(b) "complaints" includes complaints made directly to designated operators (or anyone carrying on activities on their behalf) and complaints to the Authority or the Council."
 
      (2) Section 27C(4) and (5) of the 1984 Act shall cease to have effect.
 
Consumer complaints.     96. For section 49 of the 1984 Act (duty of Director to investigate certain matters) there is inserted-
 
 
"Consumer complaints.     49. - (1) This section applies to a complaint which any customer, purchaser or user of telecommunications apparatus or telecommunications services has against any person supplying or providing the apparatus or services in relation to any matter connected with their supply or provision.
 
    (2) If such a complaint is referred to the Council by or on behalf of the complainant and it appears to the Council that-
 
 
    (a) the complainant has an interest in the matter to which the complaint relates; and
 
    (b) the complaint is not frivolous or vexatious,
  it shall (subject to subsection (5)) be the duty of the Council to investigate the matter.
 
      (3) Where it appears to the Council that the complaint relates to a matter in respect of which any enforcement function is or may be exercisable the Council shall (unless it considers that the Authority already has notice of that matter) inform the Authority of the matter.
 
      (4) Where it appears to the Council that the complaint relates to a matter which constitutes a dispute of a kind which can be referred to the Authority under any provision of this Act, the Council shall inform the complainant that he may have the right to refer the dispute to the Authority.
 
      (5) The Council is not required to investigate any matter if it appears to the Council that-
 
 
    (a) it is unlikely that the complaint could be resolved satisfactorily by action taken by the licence holder;
 
    (b) the licence holder has not been given a reasonable opportunity to deal with the complaint;
 
    (b) in a case mentioned in subsection (3), the Authority has not had a reasonable opportunity to exercise any enforcement function in relation to that matter;
 
    (d) in a case mentioned in subsection (4), it is inappropriate to do so.
      (6) Where it appears to the Council to be appropriate to do so with a view to assisting in reaching a satisfactory resolution of a complaint referred to it under this section, the Council shall make representations on behalf of the complainant to the provider or supplier of the services or apparatus in question about anything to which the complaint relates.
 
      (7) After investigating a complaint the Council may make a report to the Authority; and such a report may include information about-
 
 
    (a) any representations made by the Council under subsection (6); and
 
    (b) the response of the licence holder to the complaint or any such representations.
      (8) The Council shall not exercise its power under section 46E to publish a report under subsection (7) or any information about the complaint from which the complainant may be identified without the consent of the complainant.
 
      (9) Where a representation made to the Authority about any matter (other than a representation appearing to it to be frivolous or vexatious) appears to the Authority-
 
 
    (a) to have been made by or on behalf of a person having an interest in the matter; and
 
    (b) to be about a matter which is or amounts to a complaint to which this section applies,
  the Authority shall refer the matter to the Council.
 
      (10) In this section "enforcement function" means a function under section 16 or 18A."
 
 
Enforcement of obligations
Financial penalties.     97. - (1) After section 18 of the 1984 Act there is inserted-
 
 

"Financial penalties
Penalties.     18A. - (1) Where the Authority is satisfied that-
 
 
    (a) a telecommunications operator has contravened or is contravening any condition of his licence;
 
    (b) a designated operator has contravened or is contravening what is deemed by virtue of section 27K(1) to be a condition of his licence; or
 
    (c) a designated operator has failed or is failing to achieve any standard of performance prescribed under section 27A,
  the Authority may, subject to section 18C, impose on the operator a penalty of such amount as is reasonable in all the circumstances of the case.
 
      (2) For the purposes of subsection (1)-
 
 
    (a) references to conditions of a licence do not include references to conditions relating to the application of the telecommunications code; and
 
    (b) "designated operator" has the meaning given by section 27L(1).
      (3) Before imposing a penalty on an operator under subsection (1) the Authority shall give notice-
 
 
    (a) stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;
 
    (b) setting out the condition or the standard of performance in question;
 
    (c) specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of a penalty and the amount of the penalty proposed; and
 
    (d) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,
  and shall consider any representations or objections which are duly made and not withdrawn.
 
      (4) Before varying any proposal stated in a notice under subsection (3)(a) the Authority shall give notice-
 
 
    (a) setting out the proposed variation and the reasons for it; and
 
    (b) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,
  and shall consider any representations or objections which are duly made and not withdrawn.
 
      (5) As soon as practicable after imposing a penalty, the Authority shall give notice-
 
 
    (a) stating that it has imposed a penalty on the operator and its amount;
 
    (b) setting out the condition or the standard of performance in question;
 
    (c) specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of the penalty and its amount; and
 
    (d) specifying a date, no earlier than the end of the period of 42 days from the date of service of the notice on the operator, by which the penalty is required to be paid.
      (6) The operator may, within 21 days of the date of service on him of a notice under subsection (5), make an application to the Authority for it to specify different dates by which different portions of the penalty are to be paid.
 
      (7) Any notice required to be given under this section shall be given-
 
 
    (a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;
 
    (b) by serving a copy of the notice on the operator; and
 
    (c) by serving a copy of the notice on the Telecommunications Consumer Council.
      (8) Any sums received by the Authority by way of penalty under this section shall be paid into the Consolidated Fund.
 
      (9) The power of the Authority under subsection (1) is not exercisable in respect of any contravention or failure before the commencement of that subsection.
 
      (10) This section does not have effect in relation to any operator in respect of the carrying on of activities-
 
 
    (a) falling within subsection (11) and authorised to be carried on by him by a licence granted to a class; or
 
    (b) designated by order by the Secretary of State for the purposes of this paragraph.
      (11) The activities of an operator falling within this subsection are-
 
 
    (a) providing or running telecommunication services or systems to the extent that they are provided to or run for the operator or, in the case of a company, a parent undertaking or subsidiary undertaking within the meaning of section 258 of the Companies Act 1985;
 
    (b) running a telecommunication system to the extent that it comprises telecommunication apparatus intended for use by members of the public generally or any section of the public and giving access to a telecommunication service falling within paragraph (a) of the definition of such a service in section 4(3).
Statement of policy with respect to penalties.     18B. - (1) The Authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.
 
      (2) In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure the Authority shall have regard to its statement of policy most recently published at the time when the contravention or failure occurred.
 
      (3) The Authority may revise its statement of policy and where it does so shall publish the revised statement.
 
      (4) Publication under this section shall be in such manner as the Authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.
 
      (5) The Authority shall undertake such consultation as it considers appropriate when preparing or revising its statement of policy.
 
Time limits on the imposition of financial penalties.     18C. - (1) Where no final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 18A(3) was served on the operator under section 18A(7) within 12 months from the time of the contravention or failure.
 
      (2) Where a final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 18A(3) was served on the operator under section 18A(7)-
 
 
    (a) within two months from the confirmation of the provisional order or the making of the final order, or
 
    (b) where the provisional order is not confirmed, within five months from the making of the provisional order.
Interest and payment of instalments.     18D. - (1) If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838.
 
      (2) If an application is made under subsection (6) of section 18A in relation to a penalty, the penalty is not required to be paid until the application has been determined.
 
      (3) If the Authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the Authority under that subsection, the Authority may where it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.
 
Validity and effect of penalties.     18E. - (1) If the operator on whom a penalty is imposed is aggrieved by-
 
 
    (a) the imposition of the penalty;
 
    (b) the amount of the penalty; or
 
    (c) the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,
  the operator may make an application to the court under this section.
 
      (2) An application under subsection (1) must be made-
 
 
    (a) within 42 days from the date of service on the operator of a notice under section 18A(5), or
 
    (b) where the application relates to a decision of the Authority on an application by the operator under section 18A(6), within 42 days from the date the operator is notified of the decision.
      (3) On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4), the court-
 
 
    (a) may quash the penalty;
 
    (b) may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or
 
    (c) in the case of an application under subsection (1)(c), may substitute for the date or dates imposed by the Authority an alternative date or dates.
      (4) The grounds falling within this subsection are-
 
 
    (a) that the imposition of the penalty was not within the power of the Authority under section 18A;
 
    (b) that any of the requirements of subsections (3) to (5) or (7) of section 18A have not been complied with in relation to the imposition of the penalty and the interests of the operator have been substantially prejudiced by the non-compliance; or
 
    (c) that it was unreasonable of the Authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.
      (5) If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined.
 
      (6) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.
 
      (7) Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.
 
      (8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.
 
      (9) In this section "the court" means-
 
 
    (a) in relation to England and Wales and Northern Ireland, the High Court; and
 
    (b) in relation to Scotland, the Court of Session.
Recovery of penalties     18F. Where a penalty imposed under section 18A(1), or any portion of it, has not been paid by the date on which it is required to be paid and-
 
 
    (a) no application relating to the penalty has been made under section 18E during the period within which such an application can be made, or
 
    (b) an application has been made under that section and determined,
  the Authority may recover from the operator, as a civil debt due to it, any of the penalty and any interest which has not been paid.".
 
      (2) In section 19 of the 1984 Act (keeping of a register), after subsection (2)(b) there is inserted "; and
 
 
    (c) every penalty imposed under section 18A(1) and every notice under section 18A(5)".
      (3) In section 46B of the 1984 Act (appeals against various decisions under the Act) in subsection (1)(j), after "15" there is inserted "or a decision of the Authority under section 18A(1) to impose a penalty".
 
Licence enforcement.     98. - (1) The 1984 Act is amended as follows.
 
      (2) In section 17 (procedural requirements supplementary to section 16), in subsection (1)(c) and (3)(b), for "28" there is substituted "21".
 
      (3) Subsection (3) does not have effect in relation to-
 
 
    (a) a provisional order which has been made before the commencement of that subsection; or
 
    (b) a final order in respect of which notice has been given under section 17(1) of the 1984 Act before the commencement of that subsection.
 
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