F1Part 3AProminence on television selection services
Enforcement
362AZProvisional notices of contravention
(1)
OFCOM may give a notice under this section (a “provisional notice of contravention”) to a person if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with—
(a)
any duty under section 362AD, 362AJ or 362AN (duties of providers of designated internet programme services under this Part), or
(b)
any duty under section 362AH, 362AK or 362AO (duties of providers of regulated television selection services under this Part).
(2)
OFCOM may also give a provisional notice of contravention to a person to whom an information notice has been given if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty under section 362AS(9).
(3)
A provisional notice of contravention must—
(a)
specify the duty as regards which (in OFCOM’s opinion) there are reasonable grounds for believing the person has failed, or is failing, to comply, and
(b)
give OFCOM’s reasons for that opinion.
(4)
A provisional notice of contravention may also specify steps that OFCOM consider the person needs to take in order to—
(a)
comply with the duty, or
(b)
remedy the failure to comply with it.
(5)
A provisional notice of contravention may also state that OFCOM propose to impose a penalty on the person and, in such a case, the notice must—
(a)
give OFCOM’s reasons for proposing to impose the penalty,
(b)
indicate the amount in sterling of the penalty that is being proposed, and
(c)
give OFCOM’s reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account.
(6)
A provisional notice of contravention must—
(a)
state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and
(b)
specify the period within which such representations may be made.
(7)
A provisional notice of contravention may be given in respect of a failure by the same person to comply with more than one duty and, in such a case, the notice may include a proposal to impose a single penalty in respect of some or all of those duties (as an alternative to separate penalties).
(8)
Where a provisional notice of contravention is given in respect of a continuing failure to comply with a duty, the notice—
(a)
may be given in respect of any period during which the failure has continued,
(b)
must specify that period, and
(c)
may include a proposal to impose no more than one penalty in respect of that period.
(9)
Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty, a further provisional notice of contravention in respect of a failure to comply with that same duty may be given to that person only—
(a)
in respect of a separate instance of the failure that occurs after the first notice is given,
(b)
where a period is specified in the first notice in accordance with subsection (8)(b), in respect of the continuation of the failure after the end of that period, or
(c)
if the notice is withdrawn without a confirmation decision under section 362AZ1 having been given to the person in respect of that failure.
(10)
OFCOM may give a provisional notice of contravention to—
(a)
a person who was but is no longer a provider of a regulated television selection service, or
(b)
a person who was but is no longer a provider of a designated internet programme service,
if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates.
362AZ1Confirmation decisions: general
(1)
This section applies where—
(a)
OFCOM have given a provisional notice of contravention to a person in relation to a failure to comply with a duty or duties, and
(b)
the period allowed for representations has expired.
(2)
After considering any representations that have been made (and any supporting evidence), OFCOM must decide whether or not to give the person a further notice under this section (a “confirmation decision”).
(3)
OFCOM may decide to give a person a confirmation decision only if they are satisfied that the person has failed, or has been failing, to comply with the notified duty or (as the case may be) one or more of the notified duties.
(4)
(5)
If OFCOM decide not to give a person a confirmation decision (whether because they are not satisfied as described in subsection (3) or for any other reason), they must inform the person of that fact.
(6)
A confirmation decision must—
(a)
state that OFCOM are satisfied that the person has failed, or has been failing, to comply with one or more notified duties, and
(b)
give OFCOM’s reasons for being satisfied as described in paragraph (a).
(7)
A confirmation decision may require the person to take such steps as OFCOM consider appropriate for either or both of the following purposes—
(a)
complying with a notified duty or duties;
(b)
remedying the failure to comply with that duty or those duties.
(8)
Where a provisional notice of contravention stated that OFCOM proposed to impose a penalty in relation to a notified duty or (by virtue of section 362AZ(7)) in relation to notified duties, a confirmation decision may require the person to pay a penalty, of an amount in sterling determined by OFCOM, in relation to that duty or (as the case may be) those duties.
(9)
The amount determined by OFCOM under subsection (8) may be greater than the amount indicated in the provisional notice of contravention in accordance with section 362AZ(5)(b).
(10)
OFCOM may give a confirmation decision to—
(a)
a person who was but is no longer a provider of a regulated television selection service, or
(b)
a person who was but is no longer a provider of a designated internet programme service,
if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates.
362AZ2Confirmation decisions: steps
(1)
This section applies where a confirmation decision requires the person to whom it is given to take steps as provided for by section 362AZ1(7).
(2)
The notice must—
(a)
specify the steps that are required and the notified duty or duties to which each relates,
(b)
give OFCOM’s reasons for requiring those steps to be taken,
(c)
specify a reasonable period within which each of the steps specified in the notice must be taken, and
(d)
contain information about the consequences of not taking the steps (including information about further kinds of enforcement action that it would be open to OFCOM to take).
(3)
Where a confirmation decision requires a person to take steps, the person to whom the notice is given has a duty to take those steps.
(4)
The duty under subsection (3) is enforceable in civil proceedings by OFCOM—
(a)
for an injunction;
(b)
for specific performance of a statutory duty under section 45 of the Court of Session Act 1988;
(c)
for any other appropriate remedy or relief.
362AZ3Confirmation decisions: penalties
(1)
This section applies where a confirmation decision imposes one or more penalties (see section 362AZ1(8)).
(2)
In relation to each penalty imposed, the notice must—
(a)
give OFCOM’s reasons for their decision to impose the penalty,
(b)
specify each notified duty to which the penalty relates,
(c)
give OFCOM’s reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,
(d)
specify a reasonable period within which the penalty must be paid, and
(e)
contain information about the consequences of not paying the penalty (including information about the kinds of enforcement action that it would be open to OFCOM to take).
(3)
The period specified under subsection (2)(d) for the payment of a penalty must be at least 28 days beginning with the day on which the confirmation decision is given.
(4)
Schedule 16A contains further provision about the imposition of a penalty by a confirmation decision.
362AZ4Penalty for failure to comply with confirmation decisions
(1)
This section applies where—
(a)
OFCOM have given a confirmation decision to a person,
(b)
the notice includes requirements to take steps (as provided for by section 362AZ1(7)), and
(c)
OFCOM are satisfied that the person has failed to comply with one or more of those requirements.
(2)
OFCOM may give the person a penalty notice.
(3)
A “penalty notice” is a notice requiring a person to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.
(4)
Before giving the person a penalty notice, OFCOM must—
(a)
notify the person that they propose to give a penalty notice in respect of the failure to comply with the confirmation decision, specifying the reasons for their proposal and indicating the amount of the proposed penalty, and
(b)
give the person an opportunity to make representations to OFCOM (with any supporting evidence) about their proposal.
(5)
A penalty notice must—
(a)
give OFCOM’s reasons for their decision to impose the penalty,
(b)
state the amount of the penalty,
(c)
state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,
(d)
specify the period within which the penalty must be paid, and
(e)
contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).
(6)
The period specified under subsection (5)(d) must be at least 28 days beginning with the day on which the penalty notice is given.
(7)
Schedule 16A contains further provision about the imposition of a penalty by a penalty notice.
362AZ5Enforcement: guidance
(1)
OFCOM must prepare and publish guidance about the exercise of their powers under sections 362AZ to 362AZ4 and Schedule 16B (so far as relating to this Part).
(2)
The guidance must include the factors that OFCOM will take into account in deciding whether to exercise any of those powers.
(3)
OFCOM may revise or replace any guidance published under this section and, where they do so, must publish the revised or replacement guidance.
(4)
Before preparing guidance under this section (or revising or replacing it), OFCOM must consult—
(a)
the Secretary of State, and
(b)
such other persons as they consider appropriate.
(5)
Guidelines prepared by OFCOM under section 392 (amount of penalties) may, so far as relating to penalties imposed by a confirmation decision under section 362AZ1 or a penalty notice under section 362AZ4, be included in the same document as guidance under this section.
(6)
In exercising or deciding whether to exercise any of their powers under sections 362AZ to 362AZ4 and Schedule 16B (so far as relating to this Part), OFCOM must have regard to any guidance for the time being published under this section.