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(e) a supplier of apparatus to whom an SMP apparatus condition applies; | |
or | |
(f) a person in whose case the electronic communications code applies by | |
virtue of a direction given under section 103 otherwise than for the | |
purposes of the provision by him of an electronic communications | 5 |
network of a designated description. | |
(3) OFCOM are not to fix the administrative charge for a charging year unless— | |
(a) at the time the charge is fixed there is in force a statement by OFCOM | |
of the principles that OFCOM are proposing to apply in fixing charges | |
under this section for that year; and | 10 |
(b) the charge is fixed in accordance with those charging principles. | |
(4) Those principles must be such as appear to OFCOM to be likely to secure, on | |
the basis of such estimates of the likely costs as it is practicable for them to | |
make— | |
(a) that, on a year by year basis, the aggregate amount of the charges | 15 |
payable to OFCOM is sufficient to meet, but does not exceed, the | |
annual cost to OFCOM of carrying out the functions mentioned in | |
subsection (5); | |
(b) that the cost of carrying out those functions is met by the imposition of | |
charges that are objectively justifiable and proportionate to the matters | 20 |
in respect of which they are imposed; | |
(c) that the relationship between meeting the cost of carrying out those | |
functions and the amounts of the charges is transparent; | |
(d) that the charges fixed for persons who are liable to charges by reason | |
only of being persons to whom SMP apparatus conditions apply are | 25 |
referable only to things done in, or in connection with, the setting, | |
modification or enforcement of SMP apparatus conditions or the | |
carrying out of the functions mentioned in subsection (6)(l); and | |
(e) that the charges fixed for persons who are liable to charges by reason | |
only of being persons falling within subsection (2)(f), are referable only | 30 |
to costs incurred in, or in connection with, the carrying out of the | |
functions mentioned in subsection (6)(g) and (l). | |
(5) Those functions are— | |
(a) the relevant Chapter 1 functions; | |
(b) the carrying out for a Chapter 1 purpose of any research by OFCOM or | 35 |
the Consumer Panel into any of the matters mentioned in section | |
13(1)(c) to (f); | |
(c) the publication under section 23 of any information or advice that it | |
appears to OFCOM to be appropriate to make available to the persons | |
mentioned in subsection (2)(a) to (c) of that section; and | 40 |
(d) the function of taking any steps that OFCOM consider it necessary to | |
take— | |
(i) in preparation for the carrying out of any of the functions | |
mentioned in paragraphs (a) to (c) of this subsection; or | |
(ii) for the purpose of facilitating the carrying out of those functions | 45 |
or otherwise in connection with carrying them out. | |
(6) The relevant Chapter 1 functions are— | |
(a) OFCOM’s functions under sections 30 to 34 and 41; | |
(b) the setting, modification and enforcement of conditions under section | |
42; | 50 |
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(c) the supervision, as respects the requirements of sections 30 to 34 and of | |
any such conditions, of communications providers and of persons who | |
make associated facilities available; | |
(d) the monitoring of compliance with those requirements and with any | |
such conditions; | 5 |
(e) the functions conferred on OFCOM by or under section 52; | |
(f) their functions under section 102; | |
(g) their functions under sections 103 to 116; | |
(h) their functions under sections 182 to 188; | |
(i) securing international co-operation in relation to the regulation of | 10 |
electronic communications networks, electronic communications | |
services and associated facilities; | |
(j) securing the harmonisation and standardisation of the regulation of | |
electronic communications networks, electronic communications | |
services and associated facilities; | 15 |
(k) market analysis and any monitoring of the controls operating in the | |
markets for electronic communications networks, electronic | |
communications services and associated facilities; | |
(l) OFCOM’s functions under this section and sections 36 to 40. | |
(7) A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is | 20 |
the purpose of ascertaining the effectiveness of one or more of the following— | |
(a) the regulation of the provision of electronic communications networks | |
or electronic communications services; | |
(b) the regulation of the making available of associated facilities; | |
(c) the mechanisms in place for the handling, by communications | 25 |
providers and by persons making such facilities available, of | |
complaints made to them by consumers in markets for such services or | |
facilities; | |
(d) the mechanisms in place for resolving disputes between such | |
consumers and communications providers or persons who make such | 30 |
facilities available. | |
(8) OFCOM’s power to fix charges to be paid by persons falling within subsection | |
(2)(e) or (f) includes power— | |
(a) to fix different charges for different descriptions of such persons; and | |
(b) to exclude such of those persons as are of a description specified by | 35 |
them from liability to a charge. | |
(9) As soon as reasonably practicable after the end of each charging year, OFCOM | |
must publish a statement setting out, in respect of that year— | |
(a) the aggregate amounts of the administrative charges for that year that | |
have been received by OFCOM; | 40 |
(b) the aggregate amount of the administrative charges for that year that | |
remain outstanding and are likely to be paid or recovered; and | |
(c) the cost to OFCOM of carrying out the functions mentioned in | |
subsection (5). | |
(10) Any deficit or surplus shown (after applying this subsection for all previous | 45 |
years) by a statement under subsection (9) shall be carried forward and taken | |
into account in determining what is required to satisfy the requirement | |
imposed by virtue of subsection (4)(a) in relation to the following year. | |
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(11) Section 31 applies in relation to the making and withdrawal of a designation | |
for the purposes of this section as it applies to the making and withdrawal of a | |
designation for the purposes of section 30. | |
(12) In this section “charging year” means— | |
(a) the period beginning with the commencement of this section and | 5 |
ending with the next 31st March; or | |
(b) any subsequent period of twelve months beginning with 1st April. | |
36 Supplemental provision about fixing charges | |
(1) OFCOM’s power to fix a charge under section 35— | |
(a) is to be exercisable only by the publication or giving of such notification | 10 |
as they consider appropriate for bringing the charge to the attention of | |
the persons who, in their opinion, are likely to be affected by it; and | |
(b) includes power, by setting it out in that notification, to fix the time at | |
which the charge is to become due to OFCOM. | |
(2) A charge fixed under section 35 for a charging year may be fixed in terms | 15 |
providing for a deduction from the charge on a proportionate basis to be made | |
for a part of the year during which— | |
(a) the network, service or facility in respect of which it is fixed is not | |
provided or made available by the person otherwise liable to the | |
charge; | 20 |
(b) the universal service condition in respect of which it is fixed does not | |
apply in that person’s case; | |
(c) the SMP apparatus condition in respect of which it is fixed does not | |
apply in that person’s case; or | |
(d) the electronic communications code does not apply in that person’s | 25 |
case. | |
(3) Such a charge may also be fixed (subject to subsection (4)) so that it is referable, | |
in whole or in part— | |
(a) to the provision or making available of a network, service or facility | |
during a part of the year falling before the fixing of the charge; | 30 |
(b) to the application of a universal service condition to a person for a part | |
of the year so falling; | |
(c) to a person’s being a person to whom an SMP apparatus condition | |
applies for a part of the year so falling; or | |
(d) to the application of the electronic communications code in a person’s | 35 |
case during a part of the year so falling. | |
(4) A charge may be fixed so as to be referable to a time before it is fixed to the | |
extent only that both— | |
(a) the imposition of the charge, and | |
(b) the amount of the charge, | 40 |
are required by, and consistent with, the statement of charging principles in | |
force at the beginning of the charging year. | |
(5) Before making or revising a statement of charging principles, OFCOM must | |
consult such of the persons who, in OFCOM’s opinion, are likely to be affected | |
by those principles as they think fit. | 45 |
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(6) The way in which a statement of charging principles must be made or may be | |
revised is by the publication of the statement or revised statement in such | |
manner as OFCOM consider appropriate for bringing it to the attention of the | |
persons who, in their opinion, are likely to be affected by it. | |
(7) References in this section to a statement of charging principles are references to | 5 |
a statement by OFCOM of the principles that they are proposing to apply in | |
fixing charges under section 35 for a charging year. | |
(8) In this section “charging year” has the same meaning as in section 35. | |
37 Notification of non-payment of charges | |
(1) OFCOM are not entitled to bring proceedings for the recovery from a person | 10 |
of an administrative charge fixed for any year under section 35 unless they | |
have given that person a notification under this section with respect to the | |
amount they are seeking to recover. | |
(2) Where OFCOM determine that there are reasonable grounds for believing that | |
a person is in contravention (whether in respect of the whole or a part of a | 15 |
charge) of a requirement to pay such an administrative charge, they may give | |
him a notification under this section. | |
(3) A notification under this section is one which— | |
(a) sets out the determination made by OFCOM; and | |
(b) specifies the period during which the person notified has an | 20 |
opportunity of doing the things specified in subsection (4). | |
(4) Those things are— | |
(a) making representations about the notified determination; and | |
(b) paying the unpaid charge or (as the case may be) the amount | |
outstanding. | 25 |
(5) Subject to subsections (6) to (8), the period for doing those things must be the | |
period of one month beginning with the day after the one on which the | |
notification was given. | |
(6) OFCOM may, if they think fit, allow a longer period for doing those things | |
either— | 30 |
(a) by specifying a longer period in the notification; or | |
(b) by subsequently, on one or more occasions, extending the specified | |
period. | |
(7) The person notified shall have a shorter period for doing those things if a | |
shorter period is agreed between OFCOM and the person notified. | 35 |
(8) 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 | 40 |
(c) the shorter period has been specified in the notification. | |
(9) A notification under this section— | |
(a) may be given in respect of contraventions of more than one | |
requirement to pay an administrative charge; and | |
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(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) Where a notification under this section has been given to a person in respect of | |
an amount outstanding, OFCOM may give a further notification in respect of | |
the whole or a part of that amount if, and only if— | 5 |
(a) the subsequent notification is in respect of so much of a period during | |
which that amount was outstanding as falls after a period to which the | |
earlier notification relates; or | |
(b) the earlier notification has been withdrawn without a penalty having | |
been imposed in respect of the matters notified. | 10 |
(11) 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 a | |
requirement to pay an administrative charge; and | 15 |
(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 38(2) that the contravention to which the previous | |
notification related did occur. | |
38 Penalties for non-payment of charges | 20 |
(1) This section applies where— | |
(a) a person (“the notified charge payer”) has been given a notification | |
under section 37; | |
(b) OFCOM have allowed the notified charge payer an opportunity of | |
making representations about the notified determination; and | 25 |
(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may impose a penalty on the notified charge payer if he— | |
(a) has, in one or more of the respects notified, been in contravention of a | |
requirement to pay an administrative charge fixed under section 35; | |
and | 30 |
(b) has not, during the period allowed under section 37, paid the whole of | |
the notified amount outstanding. | |
(3) Where a notification under section 37 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 | 35 |
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 twice the amount of the charge fixed for the relevant year, as | |
OFCOM determine to be— | 40 |
(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 charge payer; and | |
(b) any steps taken by him towards paying the amounts that he was | 45 |
notified under section 37 were outstanding | |
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(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 | |
within which the penalty is to be paid. | 5 |
(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. | |
(9) In this section “the relevant year”, in relation to a contravention of a | 10 |
requirement to pay the whole or a part of the administrative charge fixed for | |
any year, means that year. | |
(10) The provisions of this section do not affect OFCOM’s power, apart from those | |
provisions, to bring proceedings (whether before or after the imposition of a | |
penalty under this section) for the recovery of the whole or part of an amount | 15 |
due to them under section 35(1). | |
39 Suspending service provision for non-payment | |
(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— | 20 |
(a) that he is or has been in serious and repeated contravention of | |
requirements to pay administrative charges fixed under section 35 | |
(whether in respect of the whole or a part of the charges); | |
(b) that the contraventions are not contraventions relating only to charges | |
in respect of the application to the contravening provider of SMP | 25 |
apparatus conditions; | |
(c) that the bringing of proceedings for the recovery of the amounts | |
outstanding has failed to secure complete compliance by the | |
contravening provider with the requirements to pay the charges fixed | |
in his case, or has no reasonable prospect of securing such compliance; | 30 |
(d) that an attempt, by the imposition of penalties under section 38, to | |
secure such compliance has failed; and | |
(e) 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— | 35 |
(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 | 40 |
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 | 45 |
whom it is given. | |
(4) A direction under this section— | |
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(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 | 5 |
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— | |
(a) by way of compensation for loss or damage suffered by the | |
contravening provider’s customers as a result of the direction; or | 10 |
(b) in respect of annoyance, inconvenience or anxiety to which they have | |
been put in consequence of the direction. | |
(6) OFCOM are not to give a direction under this section unless they have— | |
(a) notified the contravening provider of the proposed direction and of the | |
conditions (if any) which they are proposing to impose by that | 15 |
direction; | |
(b) provided him with an opportunity of making representations about the | |
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 to take | 20 |
advantage of that opportunity. | |
(7) That period must be one ending not less than one month after the day of the | |
giving of the notification. | |
(8) 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 | 25 |
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 | |
parts of a network, service or facility, as they may determine. | 30 |
(9) For the purposes of this section there are repeated contraventions by a person | |
of requirements to pay administrative charges to the extent that— | |
(a) in the case of a previous notification given to that person under section | |
37, OFCOM have determined for the purposes of section 38(2) that such | |
a contravention did occur; and | 35 |
(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 the same or different failures to pay | |
administrative charges. | |
40 Enforcement of directions under s. 39 | 40 |
(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— | |
(a) while his entitlement to do so is suspended by a direction under section | |
39; or | 45 |
(b) in contravention of a restriction contained in such a direction. | |
(2) A person guilty of an offence under subsection (1) shall be liable— | |
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