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Postal Services Bill (HL Bill 70)

Postal Services BillPage 70

5 (1) If an access condition imposes rules on any person about the use of cost
accounting systems, OFCOM may secure that the condition also imposes an
obligation on the person to make arrangements for a description to be made
available to the public of the cost accounting system used.

(2) 5If OFCOM impose an obligation on a person under sub-paragraph (1), the
description of information to be made available must include details of—

(a) the main categories under which costs are brought into account for
the purposes of that system, and

(b) the rules applied for the purposes of that system with respect to the
10allocation of costs.

Arrangements for provision of services by others

6 (1) This paragraph applies if—

(a) services are provided to a postal operator pursuant to arrangements
made between the operator and another person (“B”),

(b) 15an access condition requires the operator to secure that those services
are also provided to a third person (“C”), and

(c) the provisions of the arrangements are such that the operator cannot
secure that the services are provided to C without B’s agreement.

(2) The access condition may include—

(a) 20provision in relation to the giving of agreement by B (including
provision for agreement to be deemed to be given in circumstances
specified in the condition), and

(b) provision for determining the terms and conditions on which B is to
secure the provision of the services to C.

(3) 25Provision may not be included in an access condition as a result of this
paragraph if it would have the effect of requiring a person who provides
services pursuant to the arrangements to do more than the person could be
required to do pursuant to the arrangements as they have effect before the
condition is imposed.

30Separation for accounting purposes

7 An access condition requiring a separation for accounting purposes between
different matters may include provision—

(a) requiring the separation to be maintained in relation to different
services, facilities or products or in relation to services, facilities or
35products provided in different areas, and

(b) requiring particular accounting methods to be used in maintaining
the separation.

Restriction on use of information obtained in connection with giving access

8 An access condition imposed on a person may include provision requiring
40the person not to use information which—

(a) is obtained in connection with the giving of access, and

(b) relates to the provision of postal services by any person to whom
access is given,

for any purpose other than the purpose of the access given by the condition.

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Periods for compliance

9 An access condition imposed on a person may include provision for
securing that obligations contained in the condition are complied with
within the periods or at the times required by or under the condition.

5Dealing with requests for access

10 An access condition imposed on a person may include provision for
securing fairness and reasonableness in the way in which requests for access
are made and responded to.

Non-discrimination

11 10An access condition imposed on a person may include provision requiring
the person not to discriminate unduly against particular persons, or against
a description of persons, in relation to access matters.

Transparency

12 An access condition imposed on a person may include provision requiring
15the person—

(a) to publish all such information as OFCOM may direct (in such
manner as they may direct) for the purpose of securing transparency
in relation to access matters, or

(b) to publish (in such manner as OFCOM may direct) the terms and
20conditions on which the person is willing to offer access.

Part 2 Resolution of access disputes by OFCOM

Reference of disputes to OFCOM

13 (1) Any one or more parties to an access dispute may refer the dispute to
25OFCOM.

(2) In this paragraph “access dispute” means a dispute between postal
operators, or between a postal operator and a user of postal services, about
the terms and conditions (including those as to price) on which access,
required by virtue of an access condition to be given—

(a) 30is to be or may be provided,

(b) is being provided, or

(c) has been provided.

(3) A reference under this paragraph must be made in such manner as OFCOM
require.

(4) 35A requirement under sub-paragraph (3) is to be imposed, withdrawn or
modified by OFCOM publishing a notice in such manner as they consider
appropriate for bringing the requirement, withdrawal or modification to the
attention of persons who, in their opinion, are likely to be affected by it.

(5) Different requirements may be imposed for different cases.

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OFCOM to decide whether to handle dispute

14 (1) This paragraph applies where a dispute has been referred to OFCOM under
paragraph 13.

(2) OFCOM must decide whether it is appropriate for them to handle the
5dispute.

(3) As soon as possible after they have reached a decision, OFCOM must inform
each of the parties to the dispute of—

(a) their decision,

(b) the date it was made, and

(c) 10their reasons for it.

Resolution of disputes by OFCOM

15 (1) This paragraph applies if OFCOM have decided under paragraph 14 that it
is appropriate for them to handle a dispute.

(2) OFCOM must—

(a) 15consider the dispute, and

(b) make a determination for resolving it.

(3) The determination must be made as soon as reasonably practicable.

(4) A determination binds all of the parties to the dispute.

(5) Where there has been an attempt to resolve the dispute by other means—

(a) 20OFCOM may, in making their determination, take account of
decisions made by others in the course of that attempt, and

(b) the determination may include provision ratifying any of those
decisions.

Resolution of disputes: OFCOM’s powers

16 (1) 25The powers that may be exercised by OFCOM, on the making of a
determination under paragraph 15, are those listed in sub-paragraph (2).

(2) The powers are—

(a) to make a declaration setting out the rights and obligations of parties
to the dispute,

(b) 30to give a direction fixing the terms or conditions of transactions
between parties to the dispute,

(c) to give a direction imposing an obligation, enforceable by the parties,
to enter into a transaction between themselves on the terms and
conditions fixed by OFCOM,

(d) 35to give a direction, enforceable by the party to whom the sums are to
be paid, requiring the payment of sums by way of adjustment of an
underpayment or overpayment (but see sub-paragraph (3)),

(e) to require a party to the dispute to pay all or part of another party’s
costs and expenses incurred in connection with the dispute,

(f) 40to require a party to pay all or part of OFCOM’s costs of dealing with
the dispute (but see sub-paragraph (4)).

(3) A direction under sub-paragraph (2)(d) may be given only for the purpose
of giving effect to a determination by OFCOM of the proper amount of a

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charge in respect of which amounts have been paid by one party to the
dispute to another.

(4) A direction under sub-paragraph (2)(f) may be given to a party only if—

(a) the party referred the dispute to OFCOM, and

(b) 5OFCOM consider that the reference was frivolous or vexatious or
that the party has otherwise abused the right (conferred by
paragraph 13) to refer disputes.

Resolution of disputes: procedure

17 (1) The procedure for the consideration and determination of a dispute is the
10procedure that OFCOM consider appropriate.

(2) That procedure may involve allowing the continuation of a procedure that
has already begun for resolving the dispute by other means.

(3) OFCOM must send a copy of their determination, together with a full
statement of their reasons for it, to every party to the dispute.

(4) 15OFCOM must publish so much of their determination as (having regard in
particular to the need to preserve commercial confidentiality) they consider
it appropriate to publish.

(5) Information published under sub-paragraph (4) must be published in such
manner as OFCOM consider appropriate for bringing it to the attention (to
20the extent that they consider appropriate) of members of the public.

Reference not to affect legal proceedings or OFCOM’s powers

18 (1) A reference under paragraph 13 of a dispute does not prevent any person
from bringing or continuing any civil or criminal proceedings in or before a
court with respect to any of the matters under dispute.

(2) 25Sub-paragraph (1) is subject to—

(a) paragraph 15(4) (determination binding on all parties), and

(b) any agreement to the contrary.

(3) Any reference of a dispute to OFCOM, or consideration or determination by
OFCOM of a dispute, does not prevent OFCOM from exercising any of their
30powers (or from doing anything in connection with the exercise of any of
their powers) in relation to the subject-matter of the dispute.

Information

19 (1) This paragraph applies where a dispute has been referred under paragraph
13 to OFCOM.

(2) 35OFCOM may require a person to provide them with specified information,
in the specified manner and within the specified period.

(3) The information that may be specified is information required by OFCOM
for the purpose of—

(a) deciding whether it is appropriate for them to handle the dispute, or

(b) 40considering the dispute and making a determination under
paragraph 15.

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(4) The specified period must be reasonable.

(5) In fixing that period, OFCOM must have regard, in particular, to—

(a) the information that is required,

(b) the nature of the dispute, and

(c) 5the obligation imposed by paragraph 15(3) (obligation to make a
determination as soon as reasonably practicable).

(6) Part 2 of Schedule 8 (information: enforcement) applies in relation to a
requirement imposed under this paragraph as if—

(a) the requirement were imposed under paragraph 1 of that Schedule,
10and

(b) sub-paragraphs (4) and (5) of paragraph 5 of that Schedule were
omitted.

Section 43

SCHEDULE 4 Recovery of administrative charges incurred by OFCOM

15Fixing of charges

1 (1) If, at any time in a charging year, a postal operator provides a service within
the scope of the universal postal service, the operator must, in respect of the
service, pay to OFCOM the administrative charge (if any) that is fixed by
OFCOM as applicable to the operator.

(2) 20OFCOM may fix the administrative charge for a charging year only if—

(a) at the time the charge is fixed there is in force a statement by OFCOM
of the principles that they are proposing to apply in fixing charges
under this paragraph for that year, and

(b) the charge is fixed in accordance with those principles.

(3) 25Those 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, that—

(a) on a year-by-year basis the total amount of the charges payable to
OFCOM is sufficient to meet, but does not exceed, the annual cost to
30OFCOM of carrying out their postal services functions,

(b) the cost of carrying out those functions is met by the imposition of
charges that are objectively justifiable and proportionate to the
matters in respect of which they are imposed, and

(c) the relationship between meeting the cost of carrying out those
35functions and the amounts of the charges is transparent.

(4) OFCOM’s power to fix charges for a particular case includes—

(a) power to provide that the charges are to be equal to the amounts
produced by a computation made in the manner, and by reference to
the factors, specified by them,

(b) 40power to provide for different charges to be imposed on different
descriptions of persons,

(c) power to provide for particular descriptions of persons to be
excluded from the liability to pay charges.

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(5) As soon as reasonably practicable after the end of each charging year,
OFCOM must publish a statement (a “financial statement”) setting out for
that year—

(a) the total amount of the charges for that year that they have received,

(b) 5the total amount of the charges for that year that remain outstanding
but are likely to be paid or recovered, and

(c) the cost to OFCOM of carrying out their postal services functions.

(6) Any deficit or surplus shown (after applying this sub-paragraph for
previous years) by a financial statement is to be carried forward and taken
10into account in determining what is required to satisfy the requirement
imposed by virtue of sub-paragraph (3)(a) in relation to the following year.

(7) For the purposes of this paragraph “charging year” means—

(a) the period beginning with the commencement of this Schedule and
ending with the next 31 March, or

(b) 15any subsequent period of 12 months beginning with 1 April.

Meaning of OFCOM’s postal services functions

2 (1) For the purposes of paragraph 1 OFCOM’s postal services functions are—

(a) functions that OFCOM carry out under, or in consequence of, any
enactment relating to postal services (including one contained in this
20Schedule),

(b) securing international co-operation in relation to the regulation of
postal services,

(c) market analysis and any monitoring of the controls operating in the
market for the provision of postal services,

(d) 25the carrying out for a relevant purpose of any research by OFCOM
or the Consumer Panel into any of the matters mentioned in section
14(6A)(b) to (e) of the Communications Act 2003 (as inserted by
Schedule 12 to this Act),

(e) the publication under section 26 of that Act of any information or
30advice that appears to OFCOM to be appropriate to make available
to users of postal services, and

(f) any incidental functions carried out in relation to any of the above
functions.

(2) In sub-paragraph (1)(d) “a relevant purpose” means the purpose of
35ascertaining the effectiveness of one or more of the following—

(a) the regulation of the provision of postal services,

(b) the mechanisms in place for the handling by postal operators of
complaints made about them by the users of postal services, and

(c) the mechanisms in place for resolving disputes between postal
40operators and the users of postal services.

(3) In sub-paragraph (1)(f) the reference to incidental functions carried out in
relation to any of the functions within sub-paragraph (1)(a) to (e) includes
the taking of any steps that OFCOM consider necessary—

(a) in preparation for the carrying out of any of those functions, or

(b) 45for the purpose of facilitating the carrying out of those functions or
otherwise in connection with carrying them out.

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(4) In sub-paragraph (3) the reference to the taking of any steps includes the
taking of any steps before the commencement of this Schedule.

Procedure for fixing of charges

3 (1) The way in which a charge is to be fixed under paragraph 1 is by the
5publication or giving of such notification as OFCOM consider appropriate
for bringing the charge to the attention of the persons who, in their opinion,
are likely to be affected by it.

(2) OFCOM may set out in that notification the time at which the charge is to
become due to them.

(3) 10A charge fixed under paragraph 1 for a charging year may be fixed in terms
providing for a deduction from the charge on a proportionate basis to be
made for a part of the year during which the service in respect of which it is
fixed is not provided by the person otherwise liable to the charge.

(4) A charge fixed under paragraph 1 for a charging year may also be fixed so
15that (subject to sub-paragraph (5)) it is referable, in whole or in part, to the
provision of a service during a part of the year falling before the fixing of the
charge.

(5) A charge may be fixed so as to be referable to a time before it is fixed to the
extent only that both—

(a) 20the imposition of the charge, and

(b) the amount of the charge,

are required by, and consistent with, the statement of charging principles in
force at the beginning of the charging year.

(6) Before making or revising a statement of charging principles, OFCOM must
25consult such of the persons who, in OFCOM’s opinion, are likely to be
affected by those principles as they think fit.

(7) 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
30the persons who, in their opinion, are likely to be affected by it.

Notification of non-payment of charges

4 (1) OFCOM may bring proceedings for the recovery from a person of an
administrative charge fixed for a year under paragraph 1 only if they have
given that person a notification under this paragraph with respect to the
35amount they are seeking to recover.

(2) OFCOM may give a person a notification under this paragraph if they
determine that there are reasonable grounds for believing that the person is
in contravention of a requirement to pay the charge (whether the whole or
part of it).

(3) 40A notification under this paragraph must set out the determination made by
OFCOM.

(4) A notification under this paragraph must also specify the period during
which the person notified has an opportunity—

(a) to make representations about the notified determination, and

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(b) to pay the unpaid charge or (if applicable) the amount outstanding.

(5) The specified period must be at least one month beginning with the day after
the day the notification is given unless—

(a) OFCOM and the person notified agree a shorter period, or

(b) 5OFCOM have reasonable grounds for believing that the
contravention is a repeated contravention and, in those
circumstances, consider a shorter period would be appropriate.

(6) A contravention is a repeated contravention, in relation to a notification with
respect to the contravention, if—

(a) 10a previous notification has been given in respect of the same
contravention or in respect of another contravention of a
requirement to pay an administrative charge, and

(b) the subsequent notification is given no more than 12 months after the
day on which OFCOM determine for the purposes of paragraph 6(2)
15that the contravention to which the previous notification related did
occur.

(7) OFCOM may (on one or more occasions) extend the specified period.

5 (1) A notification under paragraph 4

(a) may be given in respect of contraventions of more than one
20requirement to pay an administrative charge, 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.

(2) If a notification under paragraph 4 has been given to a person in respect of
25an amount outstanding, OFCOM may give a further notification in respect
of the whole or a part of that amount only if—

(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) 30the earlier notification has been withdrawn without a penalty having
been imposed in respect of the matters notified.

Penalties for non-payment of charges

6 (1) This paragraph applies if—

(a) a person has been given a notification under paragraph 4,

(b) 35OFCOM have allowed the person an opportunity of making
representations about the notified determination, and

(c) the period allowed for the making of the representations has ended.

(2) OFCOM may impose a penalty on the person if the person—

(a) has, in one or more of the respects notified, been in contravention of
40a requirement to pay an administrative charge fixed under
paragraph 1, and

(b) has not, during the period allowed under paragraph 4, paid the
whole of the notified amount outstanding.

(3) If a notification under paragraph 4 relates to more than one contravention, a
45separate penalty may be imposed in respect of each contravention.

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(4) If a notification under that paragraph 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 paragraph is to be such amount
5as OFCOM determine to be—

(a) appropriate, and

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

(6) The amount must not be more than twice the amount of the charge fixed for
the year in relation to which the contravention occurred.

(7) 10In making the determination of the amount of the penalty OFCOM must
have regard to—

(a) any representations made to them by the person, and

(b) any steps taken by the person towards paying the amounts that the
person was notified under paragraph 4 were outstanding.

(8) 15If OFCOM impose a penalty on a person under this paragraph, they must—

(a) within one week of making their decision to impose the penalty,
notify that person of that decision and of their reasons for it, and

(b) in that notification, fix a reasonable period after it is given as the
period within which the penalty is to be paid.

(9) 20A penalty imposed under this paragraph—

(a) must be paid to OFCOM, and

(b) if not paid within the period fixed by them, is to be recoverable by
them accordingly.

(10) This paragraph does not affect OFCOM’s power to bring proceedings
25(whether before or after the imposition of a penalty under this paragraph)
for the recovery of the whole or part of an amount due to them under
paragraph 1.

Suspending service provision for non-payment

7 (1) OFCOM may give a direction under this paragraph to any postal operator
30who is providing one or more postal services (“the contravening operator”).

(2) A direction under this paragraph is a direction that the entitlement of the
contravening operator to provide postal services—

(a) is suspended (either generally or in relation to particular services), or

(b) is restricted in the respects set out in the direction.

(3) 35OFCOM may give a direction under this paragraph only if they are satisfied
that conditions A to D are met.

(4) Condition A is that the contravening operator is or has been in serious and
repeated contravention of requirements to pay administrative charges fixed
under paragraph 1 (whether in respect of the whole or a part of the charges).

(5) 40Condition B is that the bringing of proceedings for the recovery of the
amounts outstanding—

(a) has failed to secure complete compliance by the contravening
operator with the requirements to pay the charges, or

(b) has no reasonable prospect of securing such compliance.

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(6) Condition C is that an attempt, by the imposition of penalties under
paragraph 6, to secure such compliance has failed.

(7) Condition D is that the giving of the direction is—