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(7) The person notified shall also have a shorter period if— | |
(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 | 5 |
(c) the shorter period has been specified in the notification. | |
(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. | 10 |
(9) Where a notification under this section has been given to a person in respect of | |
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; | 15 |
(b) the contravention is a continuing contravention and the subsequent | |
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(c) the earlier notification has been withdrawn without a penalty having | |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. | 20 |
(10) 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 | |
the same contravention or in respect of another contravention of the | |
same requirement; and | 25 |
(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 136(2) that the contravention to which the previous | |
notification related did occur. | |
136 Penalties for contravention of information requirement | 30 |
(1) This section applies where— | |
(a) a person (“the notified person”) has been given a notification under | |
section 135; | |
(b) OFCOM have allowed the notified person an opportunity of making | |
representations about the matters notified; and | 35 |
(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may impose a penalty on the notified person if— | |
(a) they are satisfied that he has, in one or more of the respects notified, | |
been in contravention of the requirement notified under section 135; | |
(b) he has not, during the period allowed under that section, complied | 40 |
with the notified requirement; and | |
(c) no proceedings for an offence under section 141 have been brought | |
against the notified person in respect of the contravention. | |
(3) Where a notification under section 135 relates to more than one contravention, | |
a separate penalty may be imposed in respect of each contravention. | 45 |
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(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 | |
exceeding £50,000 as OFCOM determine to be both— | 5 |
(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— | |
(a) any representations made to them by the notified person; and | |
(b) any steps taken by him towards complying with the requirements | 10 |
contraventions of which have been notified to him under section 135. | |
(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 | |
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 | 15 |
within which the penalty is to be paid. | |
(8) A penalty imposed under this section— | |
(a) must be paid to OFCOM; and | |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | 20 |
(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 | 25 |
resolution of each House. | |
137 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— | 30 |
(a) that he is or has been in serious and repeated contravention of | |
requirements imposed under sections 132 and 133, 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; | 35 |
(c) that an attempt, by the imposition of penalties under section 136 or the | |
bringing of proceedings for an offence under section 141, 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. | 40 |
(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 | 45 |
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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 | 5 |
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 | 10 |
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. | 15 |
(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. | 20 |
(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 | 25 |
(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 132 and 133, or either of them, to the | |
extent that— | 30 |
(a) in the case of a previous notification given to that person under section | |
135, OFCOM have determined for the purposes of section 136(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 | 35 |
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. | |
138 Suspending apparatus supply for information contraventions | 40 |
(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 132; | 45 |
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(b) that an attempt, by the imposition of penalties under section 136 or the | |
bringing of proceedings for an offence under section 141, 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. | 5 |
(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 | 10 |
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. | 15 |
(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 | 20 |
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— | |
(a) by way of compensation for loss or damage suffered by the | |
contravening supplier’s customers as a result of the direction; or | 25 |
(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 | |
representations or proposals made to them), they may revoke a direction under | |
this section or modify its conditions— | 30 |
(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 | |
apparatus as they may determine. | |
(7) For the purposes of this section contraventions by a person of requirements | 35 |
imposed under section 132 are repeated contraventions if— | |
(a) in the case of a previous notification given to that person under section | |
135, OFCOM have determined for the purposes of section 136(2) that | |
such a contravention did occur; and | |
(b) in the period of twelve months following the day of the making of that | 40 |
determination, one or more further notifications have been given to | |
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. | 45 |
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