Section 94: Notification of contravention of SMP apparatus conditions, Communications Act 2003

Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, an SMP apparatus condition 5, they may give that person a notification under this section.

A notification under this section is one which—

sets out the determination made by OFCOM;

specifies the condition and contravention in respect of which that determination has been made; and

specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

Those things are—

making representations about the matters notified;

complying with notified conditions of which he remains in contravention; and

remedying the consequences of notified contraventions.

Subject to subsections (5) to (7) and section 98(3), 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.

OFCOM may, if they think fit, allow a longer period for doing those things either—

by specifying a longer period in the notification; or

by subsequently, on one or more occasions, extending the specified period.

The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

The person notified shall also have a shorter period if—

OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

they have determined that, in those circumstances, a shorter period would be appropriate; and

the shorter period has been specified in the notification.

A notification under this section—

may be given in respect of more than one contravention; and

if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

the contravention is one occurring after the time of the giving of the earlier notification;

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

the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.

In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.

For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same condition; and

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 95(2) or 96(2) that the contravention to which the previous notification related did occur.

Section 94: Notification of contravention of SMP apparatus conditions

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