| Amendments proposed to the Communications Bill - continued | House of Commons |
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NEW SCHEDULE
Nick Harvey NS1 To move the following Schedule:—
'Enforcement of sections [notification requirements for satellite
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| (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 sub-paragraph (4). |
(4) Those things are—
| (a) | making representations about the determination; and |
| (b) | providing OFCOM with the information which the notified person should have provided for the purposes of section [notification requirement for satellite packagers] but has not. |
| (a) | may be given in respect of more than one contravention of section [notification requirements for satellite packages]; 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. |
| (a) | the subsequent notification is in respect of so much of a period during which the contravention in question was continuing as falls after any period to which the earlier notification relates; or |
| (b) | the earlier notification has been withdrawn without a penalty having been imposed by reference to the notified contravention. |
| (a) | a person ("the notified packager") has been given a notification under paragraph 1; |
| (b) | OFCOM have allowed the notified packager an opportunity of making representations about the notified determination; and |
| (c) | the period allowed for the making of the representations has expired. |
| (a) | that he is or has been in contravention, in any of the respects notified, of section [notification requirements for satellite packagers]; and |
| (b) | that he has not himself, during the period allowed under paragraph 1, taken all such steps as OFCOM consider appropriate for providing them with the information which he should have provided to them but has not. |
(4) A decision of OFCOM to give an enforcement notification to any person must fix a reasonable period for the taking of the steps required by the notification.
(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.
(6) That duty shall be enforceable in civil proceedings by OFCOM for an injunction, for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36), or for any other appropriate remedy or relief.
Penalty for failure 3 (1) This paragraph applies (in addition to paragraph 2) where—
| (a) | a person ("the notified packager") has been given a notification under paragraph 1; |
| (b) | OFCOM have allowed the notified packager an opportunity of making representations about the matters notified; and |
| (c) | the period allowed for the making of the representations has expired. |
(3) Where a notification under paragraph 1 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 specified in the notification during which that contravention continued.
(5) OFCOM may also impose a penalty on the notified packager if he has contravened, or is contravening, a requirement of an enforcement notification given in respect of the notified contravention.
(6) The amount of a penalty imposed under this paragraph is to be such amount not exceeding £10,000 as OFCOM, having regard to the matters mentioned in sub-paragraph (7), determine to be—
| (a) | appropriate; and |
| (b) | proportionate to the contravention in respect of which it is imposed. |
| (a) | any representations made to OFCOM by the notified packager, and |
| (b) | any steps taken by him towards complying with his obligations under section [notification requirements for satellite packagers]. |
| (a) | notify the person penalised; and |
| (b) | in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid. |
| (a) | must be paid to OFCOM; and |
| (b) | if not paid within the period fixed by them, is to be recoverable by them accordingly. |
Part 2
Contravention of must-distribute obligations
Notification of failure 4 (1) Where OFCOM determine that there are reasonable grounds for believing that a person has contravened or is contravening a must-distribute obligation, they may give him a notification under this paragraph.(2) A notification under this paragraph is one which—
| (a) | sets out the determination made by OFCOM; |
| (b) | specifies the obligation and contravention in respect of which that determination has been made; and |
| (c) | specifies the period during which the person notified has an opportunity of doing the things specified in sub-paragraph (4). |
(4) Those things are—
| (a) | making representations about the matters notified; |
| (b) | complying with notified obligations of which he remains in contravention; and |
| (c) | remedying the consequences of notified contraventions. |
| (a) | may be given in respect of more than one contravention; 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. |
| (a) | the contravention is in respect of so much of a period during which the contravention in question was continuing as falls after any period to which the earlier notification relates; or |
| (b) | the earlier notification has been withdrawn without a penalty having been imposed with respect to the notified contravention. |
| (a) | a person ("the notified packager") has been given a notification under paragraph 4; |
| (b) | OFCOM have allowed the notified packager an opportunity of making representations about the matters notified; and |
| (c) | the period allowed for the making of the representations has expired. |
| (a) | that he is or has been in contravention, in any of the respects notified, of an obligation notified in the notification under paragraph 4; and |
| (b) | that he has not himself, during the period allowed under that paragraph, taken all such steps as OFCOM consider appropriate for— |
| (i) | complying with that obligation; and |
| (ii) | remedying the consequences of the notified contravention of that obligation. |
| (a) | a requirement to take such steps for complying with the notified obligation as may be specified in the notification; |
| (b) | a requirement to take such steps for remedying the consequences of the notified contravention as may be so specified. |
(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.
(6) That duty shall be enforceable in civil proceedings by OFCOM for an injunction, for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36), or for any other appropriate remedy or relief.
Penalty for failure 6 (1) This paragraph applies (in addition to paragraph 5) where—
| (a) | a person ("the notified packager") has been given a notification under paragraph 4; |
| (b) | OFCOM have allowed the notified packager an opportunity of making representations about the matters notified; and |
| (c) | the period allowed for the making of the representations has expired. |
(3) Where a notification under paragraph 4 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 specified in the notification during which that contravention continued.
(5) OFCOM may also impose a penalty on the notified packager if he has contravened, or is contravening, a requirement of an enforcement notification given in respect of the notified contravention.
(6) Where OFCOM impose a penalty on a person under this paragraph they shall—
| (a) | notify the person penalised; and |
| (b) | in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid. |
| (a) | must be paid to OFCOM; and |
| (b) | if not paid within the period fixed by them, is to be recoverable by them accordingly. |
| (a) | appropriate; and |
| (b) | proportionate to the contravention in respect of which it is imposed. |
| (a) | any representations made to OFCOM by the notified packager; |
| (b) | any steps taken by him towards complying with the obligation contraventions of which have been notified to him under paragraph 4; and |
| (c) | any steps taken by him for remedying the consequences of those contraventions. |
| (a) | the turnover of a person's relevant business for any 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 to be treated as the business by reference to which the calculation of that turnover falls to be made. |
(5) The Secretary of State may by order amend this paragraph so as to substitute a different percentage for the percentage for the time being specified in sub-paragraph (1).
(6) In this paragraph—
| "relevant business" means (subject to the provisions of any order under sub-paragraph (3)) 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 satellite packages to members of the public; |
| "relevant period", in relation to a contravention by any person of a must-distribute obligation, 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 notification of the contravention was given under paragraph 4; |
| (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 that business, the period of one year ending with the time when he ceased to carry it on. |
Suspending or restricting entitlement for contravention of must-distribute obligations 8 (1) OFCOM may give a direction under this paragraph to a person who is a satellite packager ("the contravening packager") if they are satisifed—
| (a) | that he is or has been in serious and repeated contravention of a must-distribute obligation; |
| (b) | that the imposition of penalties and the giving of enforcement notifications under paragraph 5 have failed to secure compliance by that person with the obligation that he has contravened; and |
| (c) | that the giving of the direction is both appropriate and proportionate to the contraventions in respect of which it is imposed. |
| (a) | a direction that the entitlement of the contravening packager to act as a satellite packager is suspended (either generally or in particular respects); or |
| (b) | a direction that that entitlement is restricted in the respects set out in the direction. |
| (a) | must specify the activities 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. |
| (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 packager as appear to OFCOM to be appropriate for the purpose of protecting the packager's customers. |
(6) Where OFCOM give a direction under this paragraph, they shall, as soon as practicable after doing so, provide that person with an opportunity of—
| (a) | making representations about the effect of the direction; and |
| (b) | proposing steps for remedying the situation. |
| (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 activities as they may determine. |
| (a) | more than one notification under paragraph 4 has been given to that person in respect of the same contravention or in respect of different contraventions of the same obligation; and |
| (b) | the latest of those notifications was given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of paragraph 5 or 6 that the contravention to which the earliest notification related did occur. |
| (a) | while his entitlement to do so is suspended by a direction under paragraph 8; or |
| (b) | in contravention of any restriction contained in such a direction. |
| (a) | on summary conviction, to a fine not exceeding the statutory maximum; |
| (b) | on conviction on indictment, to a fine. |
Civil liability for contravention of must-distribute obligations 10 (1) The obligation of a person to comply with—
| (a) | a must-distribute obligation applying to him, |
| (b) | a requirement imposed on him by an enforcement notification under paragraph 5, and |
| (c) | the conditions of a direction under paragraph 8, |
(2) Where a duty is owed by virtue of this paragraph to any person—
| (a) | any breach of the duty that causes that person to sustain loss or damage, and |
| (b) | any act which by inducing a breach of the duty or interfering with its performance causes that person to sustain loss or damage and which is done wholly or partly for achieving that result, |
(3) In any proceedings brought against a person by virtue of sub-paragraph (2)(a), it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the obligation requirement or condition in question.
Part 3
Information Provisions
Power to require information 11 (1) OFCOM may require a person appearing to them to be a satellite packager to provide them with all such information as they consider necessary for the purpose of ascertaining whether any person is contravening or has contravened—
| (a) | a requirement to give notification under section [notification requirements for satellite packages]; or |
| (b) | a must-distribute obligation. |
(3) OFCOM shall not require the provision of any information under this paragraph except—
| (a) | by a demand for the information that describes the required information and sets out OFCOM's reasons for requiring it; and |
| (b) | where the making of a demand for that information is proportionate to the use to which the information is to be put in the carrying out of OFCOM's functions. |
(5) A person required to provide information under this paragraph must provide it in such manner and within such reasonable period as may be specified by OFCOM.
Application of Part 2 of Schedule to enforcement of information requirements 12 (1) Subject to sub-paragraph (2), Part 2 of this Schedule applies for the enforcement of a requirement imposed under paragraph 11 as it applies for the enforcement of a must-distribute obligation.
(2) The amount of a penalty imposed under paragraph 6 by virtue of this paragraph must not exceed £50,000.
(3) The Secretary of State may by order amend this paragraph so as to substitute a different sum for the sum for the time being specified in sub-paragraph (2).
(4) For the purposes of paragraph 8 (as applied by this paragraph) there have, in any person's case, been repeated contraventions of requirements imposed under paragraph 11 if—
| (a) | more than one notification under paragraph 4 (as applied) has been given to that person in respect of the same contravention or in respect of contraventions of different requirements; and |
| (b) | the latest of those notifications was given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of paragraph 5 or 6 (as applied) that the contravention to which the earliest notification related did occur. |
| (a) | on summary conviction, to a fine not exceeding the statutory maximum; |
| (b) | on conviction on indictment, to a fine. |
| (a) | that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but |
| (b) | that he has taken all reasonable steps to provide the required information after the end of that period. |
| (a) | in pursuance of any requirement under paragraph 11, he provides any information that is false in any material particular; and |
| (b) | at the time he provides it, he either knows it to be false or is reckless as to whether or not it is false. |
| (a) | on summary conviction, to a fine not exceeding the statutory maximum; |
| (b) | on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both. |
| (a) | OFCOM have given the person a notification, in relation to the contravention in question, under paragraph 4 (as applied by paragraph 12); |
| (b) | the period allowed under paragraph 4 for the provision of the information to which the contravention relates has expired without the information being provided; and |
| (c) | OFCOM are satisfied that the case is not one in which it would be appropriate to impose a financial penalty under paragraph 6 (as so applied). |
| (a) | the exercise of their powers under paragraph 11; and |
| (b) | the uses to which they are proposing to put information obtained under that paragraph. |
(3) Where OFCOM make or revise their statement of policy under this paragraph, they shall publish that statement or, as the case may be, the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by this Part of this Schedule to have regard to the statement for the time being in force under this paragraph.
Obligation of OFCOM to provide information 15 (1) On application made for the purpose by any person, OFCOM must comply with any request contained in that application—
| (a) | to notify the applicant whether or not any notification is required to be submitted by him under section [notification requirements for satellite packagers]; and |
| (b) | to notify the applicant whether any notification submitted by him for the purposes of that section satisfies the requirements of that section. |
(3) OFCOM shall not be required to comply with a request contained in an application under this section if (without having been asked to do so) they have already given that person the notification or information for which he is asking.
(4) Any notification or information which under sub-paragraph (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the application for the notification or information was made to OFCOM.
Part 4
Interpretation of Schedule
16 (1) In this Schedule "must-distribute obligation", in relation to any person means an obligation imposed by a condition applied to him under section [conditions applying to satellite packagers].(2) For the purposes of this Schedule, where there is a contravention of an obligation that requires a person to do anything within a particular period or before a particular time that contravention shall be taken to continue after the end of that time, until that thing is done.
(3) References in this Schedule to remedying the consequences of a contravention include references to paying an amount to any person by way of compensation for loss or damage suffered by that person, or in respect of any annoyance, inconvenience or anxiety to which he has been put.
(4) In determining for the purposes of any provision of this Schedule whether a contravention is a repeated contravention for any purposes, a notification of a contravention under any such provision shall be disregarded if it has been withdrawn before the imposition of a penalty in respect of the matters notified.'.
ORDER OF THE HOUSE [3rd DECEMBER 2002]
That the following provisions shall apply to the Communications Bill—
Committal
(1) The Bill shall be committed to a Standing Committee.
Proceedings in Standing Committee
(2) Proceedings in the Standing Committee shall (so far as not previously concluded) be brought to a conclusion on 6th February 2003.(3) The Standing Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
(4) Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on the day on which proceedings on consideration are commenced.
(6) Sessional Order B (programming committees) made on 28th June 2001 shall not apply to proceedings on consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill (including any proceedings on consideration of Lords amendments or any further messages from the Lords) may be programmed.
ORDER OF THE COMMITTEE [10th DECEMBER 2002]
That—
(1) during proceedings on the Communications Bill (in addition to its first meeting at half-past Ten o'clock on Tuesday 10th December 2002) the Standing Committee do meet—
| (a) | on Tuesday 10th December 2002 at half-past Four o'clock; |
| (b) | on Thursday 12th December 2002 at five minutes to Nine o'clock and at half-past Two o'clock; |
| (c) | on Tuesday 17th December 2002 at half-past Ten o'clock and at half-past Four o'clock; |
| (d) | on Thursday 19th December 2002 at five minutes to Nine o'clock; |
| (e) | on Tuesday 7th January 2003 at half-past Four o'clock; and |
| (f) | thereafter on Tuesdays and Thursdays at five minutes to Nine o'clock and at half-past Two o'clock; |
(3) the proceedings which under paragraph (2) are to be taken on any sitting shall (so far as not previously concluded) be brought to a conclusion at the time specified in the third column of the Table;
(4) paragraph (2) does not prevent proceedings being taken (in the order shown in the second column of the Table) at any earlier sitting than that provided for under paragraph (2) if previous proceedings have already been concluded.
TABLE
| Sitting | Proceedings | Time for conclusion of proceedings |
| 1st | Clauses 1 and 2, Schedule 1, Clauses 3 to 26, Schedule 2 and Clause 27 | — |
| 2nd | Clauses 1 and 2, Schedule 1, Clauses 3 to 26, Schedule 2 and Clause 27 (so far as not previously concluded) | — |
| 3rd | Clauses 1 and 2, Schedule 1, Clauses 3 to 26, Schedule 2 and Clause 27 (so far as not previously concluded) | 11.25 a.m. |
| 4th | Clauses 28 to 59 and Clauses 61 to 68 | — |
| 5th | Clauses 28 to 59 and Clauses 61 to 68 (so far as not previously concluded) | 1 p.m. |
| 6th | Clauses 69 and 70, Clauses 73 to 102, Schedule 3, Clauses 103 to 114, Schedule 4 and Clauses 115 to 146 | — |
| 7th | Clauses 69 and 70, Clauses 73 to 102, Schedule 3, Clauses 103 to 114, Schedule 4 and Clauses 115 to 146 (so far as not previously concluded) | — |
| 8th | Clauses 69 and 70, Clauses 73 to 102, Schedule 3, Clauses 103 to 114, Schedule 4 and Clauses 115 to 146 (so far as not previously concluded) | 7 p.m. |
| 9th | Clauses 147 to 152, Clause 154, Schedule 5, Clauses 155 to 157, Clauses 159 to 169, Clauses 173 to 175, Schedule 6, Clauses 176 and 177, Schedule 7, Clauses 178 to 187, Schedule 8 and Clauses 188 to 192 | — |
| 10th | Clauses 147 to 152, Clause 154, Schedule 5, Clauses 155 to 157, Clauses 159 to 169, Clauses 173 to 175, Schedule 6, Clauses 176 and 177, Schedule 7, Clauses 178 to 187, Schedule 8 and Clauses 188 to 192 (so far as not previously concluded) | 5 p.m. |
| 11th | Clauses 193 and 194, Schedule 9, Clauses 195 to 214, Schedule 10, Clauses 215 to 237, Clause 153, Clauses 170 to 172 and Clause 238 | — |
| 12th | Clauses 193 and 194, Schedule 9, Clauses 195 to 214, Schedule 10, Clauses 215 to 237, Clause 153, Clauses 170 to 172 and Clause 238 (so far as not previously concluded) | — |
| 13th | Clauses 193 and 194, Schedule 9, Clauses 195 to 214, Schedule 10, Clauses 215 to 237, Clause 153, Clauses 170 to 172 and Clause 238 (so far as not previously concluded) | 11.25 a.m. |
| 14th | Clauses 239 to 263, Clause 60, Clauses 71 and 72, Clauses 264 to 275 | — |
| 15th | Clauses 239 to 263, Clause 60, Clauses 71 and 72, Clauses 264 to 275 (so far as not previously concluded) | — |
| 16th | Clauses 239 to 263, Clause 60, Clauses 71 and 72, Clauses 264 to 275 (so far as not previously concluded) | 5 p.m. |
| 17th | Clauses 276 to 284, Schedule 11, Clauses 285 to 326, Schedule 12, Clauses 327 to 333, Schedule 13 and Clause 334 | — |
| 18th | Clauses 276 to 284, Schedule 11, Clauses 285 to 326, Schedule 12, Clauses 327 to 333, Schedule 13 and Clause 334 (so far as not previously concluded) | — |
| 19th | Clauses 276 to 284, Schedule 11, Clauses 285 to 326, Schedule 12, Clauses 327 to 333, Schedule 13 and Clause 334 (so far as not previously concluded) | 11.25 a.m. |
| 20th | Clauses 335 to 337, Schedule 14, Clauses 338 to 346, Schedule 15, Clauses 347 to 354 | — |
| 21st | Clauses 335 to 337, Schedule 14, Clauses 338 to 346, Schedule 15, Clauses 347 to 354 (so far as not previously concluded) | — |
| 22nd | Clauses 335 to 337, Schedule 14, Clauses 338 to 346, Schedule 15, Clauses 347 to 354 (so far as not previously concluded) | 5 p.m. |
| 23rd | Clauses 355 to 375 and Schedule 16 | — |
| 24th | Clauses 355 to 375 and Schedule 16 (so far as not previously concluded) | 5 p.m. |
| 25th | Clauses 376 to 386, Clause 158, Clauses 387 to 391, Schedules 17 to 19, Clauses 392 to 395, New Clauses, New Schedules and remaining proceedings on the Bill | — |
| 26th | Clauses 376 to 386, Clause 158, Clauses 387 to 391, Schedules 17 to 19, Clauses 392 to 395, New Clauses, New Schedules and remaining proceedings on the Bill (so far as not previously concluded) | 5 p.m. |
ORDER OF THE COMMITTEE [12TH DECEMBER]
That the Order of the Committee of 10th December be amended as follows—
| (a) | in the Table, in respect of the third sitting, in the third column, the words '11.25 a.m.' be omitted; |
| (b) | in the Table, in respect of the fourth sitting, the words in the second column be omitted and the following words be inserted— |
| 'Clauses 1 and 2, Schedule, 1, Clauses 3 to 26, Schedule 2 and Clause 27 (so far as not previously concluded)'; |
| (c) | in the Table, in respect of the fourth sitting, in the third column, the words '5.00 p.m.' be inserted. |
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| ©Parliamentary copyright 2002 | Prepared 17 Dec 2002 |