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(b) any steps taken by him towards complying with the conditions | |
contraventions of which have been notified to him under section 90; | |
and | |
(c) any steps taken by him for remedying the consequences of those | |
contraventions. | 5 |
(3) For the purposes of this section— | |
(a) the turnover of a person’s relevant business for a period shall be | |
calculated in accordance with such rules as may be set out by order | |
made by the Secretary of State; and | |
(b) provision may also be made by such an order for determining what is | 10 |
to be treated as the network, service, facility or business by reference to | |
which the calculation of that turnover falls to be made. | |
(4) No order is to be made containing provision authorised by subsection (3) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | 15 |
(5) In this section— | |
“relevant business” means (subject to the provisions of an order under | |
subsection (3) and to subsections (6) and (7)) so much of any business | |
carried on by the notified provider as consists in any one or more of the | |
following— | 20 |
(a) the provision of an electronic communications network; | |
(b) the provision of an electronic communications service; | |
(c) the making available of associated facilities; | |
(d) the supply of directories for use in connection with the use of | |
such a network or service; | 25 |
(e) the making available of directory enquiry facilities for use for | |
purposes connected with the use of such a network or service; | |
(f) any business not falling within any of the preceding paragraphs | |
which is carried on in association with any business in respect | |
of which any access-related condition is applied to the person | 30 |
carrying it on; | |
“relevant period”, in relation to a contravention by a person of a condition | |
set under section 41, means— | |
(a) except in a case falling within paragraph (b) or (c), the period of | |
one year ending with the 31st March next before the time when | 35 |
notification of the contravention was given under section 90; | |
(b) in the case of a person who at that time, has been carrying on | |
that business for a period of less than a year, the period, ending | |
with that time, during which he has been carrying it on; and | |
(c) in the case of a person who at that time has ceased to carry on | 40 |
that business, the period of one year ending with the time when | |
he ceased to carry it on. | |
(6) In the case of a contravention of an SMP apparatus condition the relevant | |
business is so much of any business carried on by the person in respect of | |
whose contravention the penalty is imposed as consists in the supply of | 45 |
electronic communications apparatus. | |
(7) So much of any business of a person on whom the penalty is imposed as falls | |
within paragraph (f) of the definition of a relevant business shall be | |
disregarded for the purposes of this section except in relation to— | |
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(a) a contravention of an access-related condition imposed in respect of | |
that business; or | |
(b) a contravention of an enforcement notification given under section 91 | |
relating to such a condition. | |
(8) In this section “the notified provider” has the same meaning as in section 92. | 5 |
94 Power to deal with urgent cases | |
(1) This section applies where OFCOM determine— | |
(a) that they are entitled to give a notification under section 90 with respect | |
to a contravention by a person (“the contravening provider”) of a | |
condition set under section 41, other than an SMP apparatus condition; | 10 |
(b) that there are reasonable grounds for suspecting that the case is an | |
urgent case; and | |
(c) that the urgency of the case makes it appropriate for OFCOM to take | |
action under this section. | |
(2) A case is an urgent case for the purposes of this section if the contravention has | 15 |
resulted in, or creates an immediate risk of— | |
(a) a serious threat to the safety of the public, to public health or to national | |
security; | |
(b) serious economic or operational problems for persons (other than the | |
contravening provider) who are communications providers or persons | 20 |
who make associated facilities available; or | |
(c) serious economic or operational problems for persons who make use of | |
electronic communications networks, electronic communications | |
services or associated facilities. | |
(3) OFCOM may, in a notification under section 90 with respect to the | 25 |
contravention, specify a period of less than one month for doing the things | |
mentioned in subsection (3) of that section. | |
(4) OFCOM shall also have power to give to the contravening provider— | |
(a) a direction that his entitlement to provide electronic communications | |
networks or electronic communications services, or to make associated | 30 |
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. | |
(5) A direction under subsection (4)— | 35 |
(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. | |
(6) A direction under subsection (4)— | 40 |
(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 | 45 |
conditions on the contravening provider as appear to OFCOM to be | |
appropriate for the purpose of protecting his customers. | |
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(7) 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. | 5 |
(8) OFCOM have power to revoke a direction given under subsection (4)— | |
(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. | 10 |
95 Confirmation of directions under s. 94 | |
(1) As soon as reasonably practicable after giving a direction under section 94(4), | |
OFCOM must give the person to whom it is given— | |
(a) an opportunity of making representations to them about the grounds | |
on which it was given and its effect; and | 15 |
(b) an opportunity of proposing steps to remedy the situation. | |
(2) As soon as practicable after the period allowed by OFCOM for making those | |
representations has ended, they must determine— | |
(a) whether the contravention providing the grounds for the giving of the | |
direction did occur; and | 20 |
(b) whether the circumstances made it an urgent case justifying the giving | |
of the direction. | |
(3) If OFCOM decide that the contravention did occur and that the direction was | |
justified, they may confirm the direction. | |
(4) If not, they must exercise their power to revoke it. | 25 |
(5) As soon as reasonably practicable after determining whether to confirm the | |
direction, OFCOM must notify the person to whom it was given of their | |
decision. | |
(6) Conditions included in a direction by virtue of section 94(7) have effect only if | |
the direction is confirmed. | 30 |
96 Suspending service provision for contraventions of conditions | |
(1) OFCOM may give a direction under this section to a person who is a | |
communications provider or makes associated facilities available (“the | |
contravening provider”) if they are satisfied— | |
(a) that he is or has been in serious and repeated contravention of | 35 |
conditions set under section 41, other than an SMP apparatus | |
condition; | |
(b) that an attempt, by the imposition of penalties or the giving of | |
enforcement notifications under section 91 or both, to secure | |
compliance with the contravened conditions has failed; and | 40 |
(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— | |
| |
| |
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(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 | 5 |
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 | 10 |
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 | 15 |
(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— | 20 |
(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 | 25 |
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 | 30 |
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 conditions set under section 41 to the extent that— | |
(a) in the case of a previous notification given to that person under section | |
section 90, OFCOM have determined for the purposes of section 91(2) | 35 |
or 92(2) that such a contravention did occur; | |
(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 a condition set under section | |
41; and | 40 |
(c) the previous notification and the subsequent ones all relate to | |
contraventions of the same condition (whether the same contravention | |
or different contraventions). | |
97 Suspending apparatus supply for contraventions of conditions | |
(1) OFCOM may give a direction under this section to a person who supplies | 45 |
electronic communications apparatus (“the contravening supplier”) if they are | |
satisfied— | |
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(a) that he is or has been in serious and repeated contravention of any SMP | |
apparatus conditions; | |
(b) that an attempt, by the imposition of penalties or the giving of | |
enforcement notifications under section 91 or both, to secure | |
compliance with the contravened conditions has failed; and | 5 |
(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 | 10 |
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 | 15 |
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 | 20 |
(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— | 25 |
(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 | 30 |
representations or proposals made to them), they may at any time 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 | 35 |
apparatus as they may determine. | |
(7) For the purposes of this section there are repeated contraventions by a person | |
of SMP apparatus conditions to the extent that— | |
(a) in the case of a previous notification given to that person under section | |
90, OFCOM have determined for the purposes of section 91(2) or 92(2) | 40 |
that such a contravention did occur; | |
(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 an SMP apparatus condition; | |
and | 45 |
(c) the previous notification and the subsequent ones all relate to | |
contraventions of the same condition (whether the same contravention | |
or different contraventions). | |
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