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Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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 134   Notification of contravention of information requirements

     (1)    Where OFCOM determine that there are reasonable grounds for believing that

a person is contravening, or has contravened, a requirement imposed under

section 131 or 132, they may give that person a notification under this section.

     (2)    A notification under this section is one which—

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           (a)           sets out the determination made by OFCOM;

           (b)           specifies the requirement 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 subsection (3).

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     (3)    Those things are—

           (a)           making representations about the matters notified; and

           (b)           complying with any notified requirement of which he remains in

contravention.

     (4)    Subject to subsections (5) to (7), the period for doing those things must be the

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period of one month beginning with the day after the one on which the

notification was given.

     (5)    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

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           (b)           by subsequently, on one or more occasions, extending the specified

period.

     (6)    The person notified shall have a shorter period for doing those things if a

shorter period is agreed between OFCOM and the person notified.

     (7)    The person notified shall also have a shorter period if—

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           (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.

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     (8)    A notification under this section—

           (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.

     (9)    Where a notification under this section has been given to a person in respect of

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a contravention of a requirement, OFCOM may give a further notification in

respect of the same contravention of that requirement if, and only if—

           (a)           the contravention is one occurring after the time of the giving of the

earlier notification;

           (b)           the contravention is a continuing contravention and the subsequent

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notification is in respect of so much of a period as falls after a period to

which the earlier notification relates; or

           (c)           the earlier notification has been withdrawn without a penalty having

been imposed in respect of the notified contravention.

     (10)   For the purposes of this section a contravention is a repeated contravention, in

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relation to a notification with respect to that contravention, if—

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (a)           a previous notification under this section has been given in respect of

the same contravention or in respect of another contravention of the

same requirement; 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

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of section 135(2) that the contravention to which the previous

notification related did occur.

 135   Penalties for contravention of information requirement

     (1)    This section applies where—

           (a)           a person (“the notified person”) has been given a notification under

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section 134;

           (b)           OFCOM have allowed the notified person an opportunity of making

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 person if—

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           (a)           they are satisfied that he has, in one or more of the respects notified,

been in contravention of the requirement notified under section 134;

           (b)           he has not, during the period allowed under that section, complied

with the notified requirement; and

           (c)           no proceedings for an offence under section 140 have been brought

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against the notified person in respect of the contravention.

     (3)    Where a notification under section 134 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

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in the notification.

     (5)    The amount of a penalty imposed under this section is to be such amount not

exceeding £50,000 as OFCOM determine to be both—

           (a)           appropriate; and

           (b)           proportionate to the contravention in respect of which it is imposed.

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     (6)    In making that determination OFCOM must have regard to—

           (a)           any representations made to them by the notified person; and

           (b)           any steps taken by him towards complying with the requirements

contraventions of which have been notified to him under section 134.

     (7)    Where OFCOM impose a penalty on a person under this section, they shall—

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           (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—

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           (a)           must be paid to OFCOM; and

           (b)           if not paid within the period fixed by them, is to be recoverable by them

accordingly.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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     (9)    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

specified in subsection (5).

     (10)   No order is to be made containing provision authorised by subsection (9)

unless a draft of the order has been laid before Parliament and approved by a

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resolution of each House.

 136   Suspending service provision for information contraventions

     (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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           (a)           that he is or has been in serious and repeated contravention of

requirements imposed under sections 131 and 132, or either of them;

           (b)           the requirements are not requirements imposed for purposes

connected with the carrying out of OFCOM’s functions in relation to

SMP apparatus conditions;

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           (c)           that an attempt, by the imposition of penalties under section 135 or the

bringing of proceedings for an offence under section 140, to secure

compliance with the contravened requirements has failed; and

           (d)           that the giving of the direction is appropriate and proportionate to the

seriousness (when repeated as they have been) of the contraventions.

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     (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

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           (b)           a direction that that entitlement is restricted in the respects set out in the

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

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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

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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.

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     (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.

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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     (6)    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

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           (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.

     (7)    For the purposes of this section there are repeated contraventions by a person

of  requirements imposed under sections 131 and 132, or either of them, to the

extent that—

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           (a)           in the case of a previous notification given to that person under section

134, OFCOM have determined for the purposes of section 135(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

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that person in respect of contraventions of such requirements;

            and for the purposes of this subsection it shall be immaterial whether the

notifications related to the same contravention or to different contraventions of

the same or different requirements or of requirements under different sections.

 137   Suspending apparatus supply for information contraventions

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     (1)    OFCOM may give a direction under this section to a person who supplies

electronic communications apparatus (“the contravening supplier”) if they are

satisfied—

           (a)           that he is or has been in serious and repeated contravention of

requirements imposed under section 131;

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           (b)           that an attempt, by the imposition of penalties under section 135 or the

bringing of proceedings for an offence under section 140, to secure

compliance with the contravened requirements has failed; and

           (c)           that the giving of the direction is appropriate and proportionate to the

seriousness (when repeated as they have been) of the contraventions.

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     (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

apparatus of a particular description); or

           (b)           a direction imposing such restrictions as may be set out in the direction

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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

provides, for an indefinite period beginning with the time at which it is notified

to the person to whom it is given.

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     (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

           (b)           in connection with a prohibition or restriction contained in the

direction or with the postponement of its effect, may impose such

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conditions on the contravening supplier as appear to OFCOM to be

appropriate for the purpose of protecting that supplier’s customers.

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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     (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 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.

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     (6)    If OFCOM consider it appropriate to do so (whether or not in consequence of

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

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           (c)           to such extent and in relation to such apparatus or descriptions of

apparatus as they may determine.

     (7)    For the purposes of this section contraventions by a person of requirements

imposed under section 131 are repeated contraventions if—

           (a)           in the case of a previous notification given to that person under section

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134, OFCOM have determined for the purposes of section 135(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 contraventions of such requirements;

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            and for the purposes of this subsection it shall be immaterial whether the

notifications related to the same contravention or to different contraventions of

the same or different requirements.

 138   Procedure for directions under ss. 136 and 137

     (1)    Except in an urgent case, OFCOM are not to give a direction under section 136

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or 137 unless they have—

           (a)           notified the contravening provider or contravening supplier of the

proposed direction and of the conditions (if any) which they are

proposing to impose by that direction;

           (b)           provided him with an opportunity of making representations about the

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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 or the

contravening supplier to take advantage of that opportunity.

     (2)    That period must be one ending not less than one month after the day of the

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giving of the notification.

     (3)    As soon as practicable after giving a direction under section 136 or 137 in an

urgent case, OFCOM must provide the contravening provider or contravening

supplier with an opportunity of—

           (a)           making representations about the effect of the direction and of any of

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its conditions; and

           (b)           proposing steps for remedying the situation.

     (4)    A case is an urgent case for the purposes of this section if OFCOM—

           (a)           consider that it would be inappropriate, because the contraventions in

question fall within subsection (5), to allow time, before giving a

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direction under section 136 or 137, for the making and consideration of

representations; and

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (b)           decide for that reason to act in accordance with subsection (3), instead

of subsection (1).

     (5)    The contraventions fall within this subsection if they have resulted in, or create

an immediate risk of—

           (a)           a serious threat to the safety of the public, to public health or to national

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security;

           (b)           serious economic or operational problems for persons (apart from the

contravening provider or contravening supplier) who are

communications providers or persons who make associated facilities

available; or

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           (c)           serious economic or operational problems for persons who make use of

electronic communications networks, electronic communications

services or associated facilities.

     (6)    In this section—

                    “contravening provider” has the same meaning as in section 136; and

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                     “contravening supplier” has the same meaning as in section 137.

 139   Enforcement of directions under ss. 136 and 137

     (1)    A person is guilty of an offence if he provides an electronic communications

network or electronic communications service, or makes available any

associated facility—

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           (a)           while his entitlement to do so is suspended by a direction under section

136; or

           (b)           in contravention of a restriction contained in such a direction.

     (2)    A person is guilty of an offence if he supplies electronic communications

apparatus—

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           (a)           while prohibited from doing so by a direction under section 137; or

           (b)           in contravention of a restriction contained in such a direction.

     (3)    A person guilty of an offence under this section shall be liable—

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum;

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           (b)           on conviction on indictment, to a fine.

     (4)    Sections 90 to 94 apply in relation to a contravention of conditions imposed by

a direction under section 136 or 137 as they apply in relation to a contravention

of conditions set under section 41.

 140   Offences in connection with information requirements

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     (1)    A person who fails to provide information in accordance with a requirement of

OFCOM under section 131 or 132 is guilty of an offence and shall be liable—

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum;

           (b)           on conviction on indictment, to a fine.

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     (2)    In proceedings against a person for an offence under subsection (1) it shall be

a defence for that person to show—

           (a)           that it was not reasonably practicable for him to comply with the

requirement within the period specified by OFCOM; but

 

 

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Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

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           (b)           that he has taken all reasonable steps to provide the required

information after the end of that period.

     (3)    A person is guilty of an offence if—

           (a)           in pursuance of any requirement under section 131 or 132, he provides

any information that is false in any material particular; and

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           (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.

     (4)    A person guilty of an offence under subsection (3) shall be liable—

           (a)           on summary conviction, to a fine not exceeding the statutory

maximum;

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           (b)           on conviction on indictment, to imprisonment for a term not exceeding

two years or to a fine, or to both.

     (5)    Proceedings for an offence under subsection (1) may be brought in respect of a

contravention by a person of a requirement imposed under section 131 or 132

only if—

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           (a)           OFCOM have given the person a notification under section 134 in

respect of that contravention;

           (b)           the period allowed under that section for doing the things mentioned

in subsection (3) of that section has expired without the required

information having been provided; and

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           (c)           OFCOM have not imposed a financial penalty under section 135 in

respect of that contravention.

 141   Statement of policy on information gathering

     (1)    It shall be the duty of OFCOM to prepare and publish a statement of their

general policy with respect to—

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           (a)           the exercise of their powers under sections 131 to 132; and

           (b)           the uses to which they are proposing to put information obtained under

those sections.

     (2)    OFCOM may from time to time revise that statement as they think fit.

     (3)    Where OFCOM make or revise their statement of policy under this section,

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they must 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

sections 131 to 140 to have regard to the statement for the time being in force

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under this section.

 142   Provision of information by OFCOM

     (1)    OFCOM must comply with a request made by a person for the purposes of this

section—

           (a)           to notify the person whether or not a notification is required to be

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submitted by him under section 29;

           (b)           to notify the person whether a notification submitted by him for the

purposes of that section satisfies the requirements of this Chapter;

 

 

 
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