Part 2Networks, services and the radio spectrum

Chapter 1Electronic communications networks and services

Enforcement of conditions

97Amount of penalty under s. 96

(1)

The amount of a penalty imposed under section 96 is to be such amount not exceeding ten per cent. of the turnover of the notified provider’s relevant business for the relevant period as OFCOM determine to be—

(a)

appropriate; and

(b)

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

(2)

In making that determination OFCOM must have regard to—

(a)

any representations made to them by the notified provider;

(b)

any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94; and

(c)

any steps taken by him for remedying the consequences of those contraventions.

(3)

For the purposes of this section—

(a)

the turnover of a person’s relevant business for a 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 network, service, facility or business by reference to which the calculation of that turnover falls to be made.

(4)

No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5)

In this section—

“relevant business” means (subject to the provisions of an order under subsection (3) and to subsections (6) and (7)) so much of any business carried on by the notified provider as consists in any one or more of the following—

(a)

the provision of an electronic communications network;

(b)

the provision of an electronic communications service;

(c)

the making available of associated facilities;

(d)

the supply of directories for use in connection with the use of such a network or service;

(e)

the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service;

(f)

any business not falling within any of the preceding paragraphs which is carried on in association with any business in respect of which any access-related condition is applied to the person carrying it on;

“relevant period”, in relation to a contravention by a person of a condition set under section 45, 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 section 94;

(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.

(6)

In the case of a contravention of an SMP apparatus condition the relevant business is 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 electronic communications apparatus.

(7)

So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—

(a)

a contravention of an access-related condition imposed in respect of that business; or

(b)

a contravention of an enforcement notification given under section 95 relating to such a condition.

(8)

In this section “the notified provider” has the same meaning as in section 96.