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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— | 5 |
(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). | 10 |
(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 | 15 |
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 | 20 |
(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— | 25 |
(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. | 30 |
(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 | 35 |
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 | 40 |
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 | 45 |
relation to a notification with respect to that contravention, if— | |
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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 | 5 |
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 | 10 |
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— | 15 |
(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 | 20 |
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 | 25 |
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. | 30 |
(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— | 35 |
(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— | 40 |
(a) must be paid to OFCOM; and | |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | |
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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 | 5 |
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— | 10 |
(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; | 15 |
(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. | 20 |
(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 | 25 |
(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 | 30 |
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 | 35 |
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. | 40 |
(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. | 45 |
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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 | 5 |
(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— | 10 |
(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 | 15 |
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 | 20 |
(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; | 25 |
(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. | 30 |
(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 | 35 |
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. | 40 |
(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 | 45 |
conditions on the contravening supplier as appear to OFCOM to be | |
appropriate for the purpose of protecting that supplier’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 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. | 5 |
(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 | 10 |
(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 | 15 |
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; | 20 |
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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
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 | 45 |
direction under section 136 or 137, for the making and consideration of | |
representations; and | |
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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 | 5 |
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 | 10 |
(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 | 15 |
“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— | 20 |
(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— | 25 |
(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; | 30 |
(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 | 35 |
(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. | 40 |
(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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(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 | 5 |
(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; | 10 |
(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— | 15 |
(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 | 20 |
(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— | 25 |
(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, | 30 |
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 | 35 |
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 | 40 |
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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