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33 Penalties for contravention of s. 29 | |
(1) This section applies (in addition to section 32) where— | |
(a) a person (“the notified provider”) has been given a notification under | |
section 31; | |
(b) OFCOM have allowed the notified provider an opportunity of making | 5 |
representations about the matters notified; and | |
(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may impose a penalty on the notified provider if he— | |
(a) has, in one or more of the respects notified, been in contravention of | |
section 29; and | 10 |
(b) has not, during the period allowed under section 31, provided OFCOM | |
with all the information which he should have provided to remedy the | |
contravention. | |
(3) Where a notification under section 31 relates to more than one contravention, | |
a separate penalty may be imposed in respect of each contravention. | 15 |
(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) OFCOM may also impose a penalty on the notified provider if he has | |
contravened, or is contravening, a requirement of an enforcement notification | 20 |
given under section 32 in respect of the notified contravention. | |
(6) The amount of a penalty imposed under this section is to be such amount not | |
exceeding £10,000 as OFCOM determine to be— | |
(a) appropriate; and | |
(b) proportionate to the contravention in respect of which it is imposed. | 25 |
(7) In making that determination OFCOM must have regard to— | |
(a) any representations made to them by the notified provider; and | |
(b) any steps taken by him towards complying with his obligations under | |
section 29. | |
(8) Where OFCOM impose a penalty on a person under this section, they shall— | 30 |
(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. | |
(9) A penalty imposed under this section— | 35 |
(a) must be paid to OFCOM; and | |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | |
(10) The Secretary of State may by order amend this section so as to substitute a | |
different maximum penalty for the maximum penalty for the time being | 40 |
specified in subsection (6). | |
(11) No order is to be made containing provision authorised by subsection (10) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
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Administrative charges imposed on providers | |
34 Fixing of charges | |
(1) A person who, at any time in a charging year, is a person to whom this section | |
applies shall— | |
(a) in respect of the network, service or facility provided or made available | 5 |
by him, | |
(b) in respect of the application to him of a universal service condition | |
relating to matters mentioned in section 62(3), | |
(c) in respect of the application to him of an SMP apparatus condition, or | |
(d) in respect of the application of the electronic communications code in | 10 |
his case, | |
pay to OFCOM the administrative charge (if any) that is fixed by them for the | |
case that is applicable to him. | |
(2) This section applies to a person at a time if, at that time he is— | |
(a) providing an electronic communications network of a description | 15 |
which is, at that time, designated for the purposes of this section; | |
(b) providing an electronic communications service of a description which | |
is, at that time, so designated; | |
(c) making available an associated facility of a description which is, at that | |
time, so designated; | 20 |
(d) a person who without being a communications provider is designated | |
in accordance with regulations under section 62; | |
(e) a supplier of apparatus to whom an SMP apparatus condition applies; | |
or | |
(f) a person in whose case the electronic communications code applies by | 25 |
virtue of a direction given under section 102 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 | 30 |
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 | 35 |
make— | |
(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 | |
subsection (5); | 40 |
(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; | 45 |
(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, | |
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(d) 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 | 5 |
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 | 10 |
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 | 15 |
take— | |
(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. | 20 |
(6) The relevant Chapter 1 functions are— | |
(a) OFCOM’s functions under sections 29 to 33 and 40; | |
(b) the setting, modification and enforcement of conditions under section | |
41; | |
(c) the supervision, as respects the requirements of sections 29 to 33 and of | 25 |
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 | |
such conditions; | |
(e) the functions conferred on OFCOM by or under section 51; | 30 |
(f) their functions under section 101; | |
(g) their functions under sections 102 to 115; | |
(h) their functions under sections 180 to 186; | |
(i) securing international co-operation in relation to the regulation of | |
electronic communications networks, electronic communications | 35 |
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 | 40 |
markets for electronic communications networks, electronic | |
communications services and associated facilities; | |
(l) OFCOM’s functions under this section and sections 35 to 38. | |
(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— | 45 |
(a) the regulation of the provision of electronic communications networks | |
or electronic communications services; | |
(b) the regulation of the making available of associated facilities; | |
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(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 | |
facilities; | |
(d) the mechanisms in place for resolving disputes between such | 5 |
consumers and communications providers or persons who make such | |
facilities available. | |
(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 | 10 |
(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 | 15 |
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 | |
subsection (5). | 20 |
(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 30 applies in relation to the making and withdrawal of a designation | 25 |
for the purposes of this section as it applies to the making and withdrawal of a | |
designation for the purposes of section 29. | |
(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 | 30 |
(b) any subsequent period of twelve months beginning with 1st April. | |
35 Supplemental provision about fixing charges | |
(1) OFCOM’s power to fix a charge under section 34— | |
(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 | 35 |
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 34 for a charging year may be fixed in terms | |
providing for a deduction from the charge on a proportionate basis to be made | 40 |
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; | |
(b) the universal service condition in respect of which it is fixed does not | 45 |
apply in that person’s case; | |
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(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 | |
case. | |
(3) Such a charge may also be fixed (subject to subsection (4)) so that it is referable, | 5 |
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; | 10 |
(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 | 15 |
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. | 20 |
(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 | 25 |
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 34 for a charging year. | 30 |
(8) In this section “charging year” has the same meaning as in section 34. | |
36 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 34 unless they | |
have given that person a notification under this section with respect to the | 35 |
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. | 40 |
(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— | 45 |
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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 | 5 |
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 | |
(b) by subsequently, on one or more occasions, extending the specified | 10 |
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— | |
(a) OFCOM have reasonable grounds for believing that the contravention | 15 |
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— | 20 |
(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 | 25 |
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 | 30 |
(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 | 35 |
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 37(2) that the contravention to which the previous | 40 |
notification related did occur. | |
37 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 36; | 45 |
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(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 | 5 |
requirement to pay an administrative charge fixed under section 34; | |
and | |
(b) has not, during the period allowed under section 36, paid the whole of | |
the notified amount outstanding. | |
(3) Where a notification under section 36 relates to more than one contravention, | 10 |
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 | 15 |
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— | 20 |
(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 36 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 | 25 |
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 | 30 |
(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 | |
any year, means that year. | 35 |
(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 34(1). | |
38 Suspending service provision for non-payment | 40 |
(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— | |
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