Postal Services Bill (HL Bill 70)

46 Contributions for meeting burden

(1) This section applies where the Secretary of State has directed OFCOM to
require contributions to be made for meeting some or all of the burden
concerned.

(2) 5The contributions are to be made by either or both of the following—

(a) postal operators providing services within the scope of the universal
postal service,

(b) users of services within the scope of the universal postal service (by
way of the charges paid by them).

(3) 10OFCOM may determine that the contributions under this section are to be
made only by a description of postal operator or user.

(4) The assessment, collection and distribution of the contributions must be
carried out in accordance with a mechanism provided for in a scheme
contained in regulations made by OFCOM.

(5) 15OFCOM must exercise their power to make the regulations in a way they
consider will secure the operation of the scheme—

(a) in an objective, proportionate and transparent way,

(b) in a way that does not involve, or tend to give rise to, any undue
discrimination against particular postal operators (or a particular
20description of postal operators) or particular users (or a particular
description of users), and

(c) in a way that avoids, or (if that is impracticable) minimises, any
distortion of competition.

(6) The regulations may provide for—

(a) 25the scheme, and

(b) any fund set up for the purposes of the scheme,

to be administered by OFCOM or some other person specified in the
regulations.

(7) A person may be specified only if OFCOM are satisfied as to the person’s
30independence of both—

(a) universal service providers, and

(b) postal operators providing postal services within the scope of the
universal postal service.

(8) The regulations may not be made unless—

(a) 35the Secretary of State has consented to the making of them and

(b) a draft of the statutory instrument containing them has been laid
before, and approved by a resolution of, each House of Parliament.

47 Report on sharing mechanism

(1) This section applies where regulations under section 46 provide for a scheme
40for the assessment, collection and distribution of contributions.

(2) OFCOM must prepare and publish a report setting out, in relation to the period
to which it applies—

(a) every determination by OFCOM that has had effect in relation to a time
in that period as a determination of the costs of providing anything

required to be provided by a universal service provider to meet its
universal service obligations,

(b) the market benefits for each universal service provider that have
accrued to the provider during that period from its designation and the
5application to it of universal service obligations, and

(c) the contribution made by every person who has made a contribution
during that period.

(3) The first report under this section must be prepared in relation to the period of
12 months beginning with the coming into force of the first regulations made
10under section 46.

(4) Subsequent reports must be prepared in relation to the period of 12 months
beginning with the end of the period to which the previous report applied.

(5) A report under this section—

(a) must be prepared as soon as practicable after the end of the period to
15which it is to apply, and

(b) must be published as soon as practicable after its preparation is
complete.

(6) OFCOM are not required under this section—

(a) to publish any matter that is confidential, or

(b) 20to publish anything that it would not be reasonably practicable to
publish without disclosing such a matter.

(7) A matter is confidential for this purpose—

(a) if it relates specifically to the affairs of a particular body and publication
of the matter would or might, in OFCOM’s opinion, seriously and
25prejudicially affect the interests of the body, and

(b) if it relates to the private affairs of an individual and publication of the
matter would or might, in OFCOM’s opinion, seriously and
prejudicially affect the interests of the individual.

(8) A report under this section must be published in such manner as OFCOM
30consider appropriate for bringing it to the attention of the persons who, in their
opinion, are affected by the matters to which it relates.

Postal operators generally

48 Notification by postal operators

(1) The Secretary of State may make regulations requiring persons to notify
35OFCOM before they carry on business as postal operators.

(2) The Secretary of State must consult OFCOM before making the regulations.

(3) The regulations may make provision corresponding, with such modifications
as appear to the Secretary of State to be appropriate, to any of the provisions of
sections 33 to 37 of the Communications Act 2003 (requirements to notify
40before carrying on a regulated activity).

(4) The maximum penalty which may be imposed by the regulations for failure to
comply with any of its provisions must not exceed the maximum penalty for
the time being specified in section 37(6) of that Act.

(5) OFCOM must establish and maintain a register which records every
notification given to them under the regulations.

(6) Information recorded in the register must be recorded in such manner as
OFCOM consider appropriate.

(7) 5OFCOM must publish a notice setting out—

(a) the times at which the register is for the time being available for public
inspection, and

(b) the fees that must be paid for, or in connection with, an inspection of
the register.

(8) 10The notice must be published 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.

(9) OFCOM must make the register available for public inspection—

(a) during such hours, and

(b) 15on payment of such fees,

as are set out in the notice for the time being in force under subsection (7).

(10) Regulations under this section are subject to negative resolution procedure.

49 Essential conditions

(1) OFCOM may impose an essential condition on—

(a) 20every postal operator, or

(b) every postal operator of a description specified in the condition.

(2) An essential condition is a condition containing such obligations as OFCOM
consider necessary to impose for, or in connection with, any one or more of the
following purposes—

(a) 25safeguarding confidentiality in connection with the sending,
conveyance and delivery of letters,

(b) safeguarding security where dangerous goods are transported,

(c) safeguarding the confidentiality of information conveyed,

(d) guarding against the theft or loss of or damage to postal packets, and

(e) 30securing the delivery of postal packets to the intended addressees.

50 General access conditions

(1) OFCOM may impose a general access condition on a particular postal operator
(or operators).

(2) A general access condition is a condition requiring the operator to do either or
35both of the following—

(a) to give access to other postal operators, or users of postal services, to the
operator’s postal infrastructure or any service within the scope of the
universal postal service which it provides, and

(b) to maintain a separation for accounting purposes between such
40different matters relating to access of a kind within paragraph (a)
(including proposed or potential access of that kind) as OFCOM may
direct.

(3) An operator’s “postal infrastructure” includes both physical infrastructure
(such as letter boxes) and infrastructure in non-physical form (such as
information relating to postcodes or addresses or arrangements made with
others for the provision of any service).

(4) 5OFCOM may impose a general access condition only if it appears to them that
the condition is necessary for either or both of the following purposes—

(a) protecting the interests of the users of postal services, and

(b) promoting effective competition.

(5) In deciding what obligations to impose in general access conditions in a
10particular case, OFCOM must (in addition to taking into account anything
relevant for the purpose of performing their duty under section 29) take into
account, in particular, the following factors—

(a) the technical and economic viability, having regard to the state of
market development, of installing and using facilities that would make
15the proposed access unnecessary,

(b) the feasibility of giving the proposed access,

(c) the investment made by the postal operator in relation to the matters in
respect of which access is proposed,

(d) the need to secure effective competition in the long term, and

(e) 20any rights to intellectual property that are relevant to the proposal.

(6) For the purposes of this section a reference to giving a person access to an
operator’s postal infrastructure includes giving a person an entitlement to use,
be provided with or become a party to any services, facilities or arrangements
comprised in the infrastructure.

(7) 25In Schedule 3—

(a) Part 1 makes provision about the kind of matters that may be included
in general access conditions, and

(b) Part 2 makes provision about the resolution of access disputes by
OFCOM.

51 30Consumer protection conditions

(1) OFCOM may impose a consumer protection condition on—

(a) every postal operator, or

(b) every postal operator of a specified description.

(2) A consumer protection condition is a condition requiring the operator to do
35one or more of the following—

(a) to assume specified liability in respect of specified loss of or damage to
specified postal packets,

(b) to establish and maintain procedures, standards and policies with
respect to consumer protection matters, and

(c) 40to make payments relating to qualifying consumer expenses of the
National Consumer Council or the Office of Fair Trading.

(3) The reference in subsection (2)(b) to consumer protection matters is to—

(a) the handling of complaints made to postal operators by users of their
services,

(b) 45the resolution of disputes between postal operators and users of their
services,

(c) the provision of remedies and redress in respect of matters that form
the subject-matter of such complaints or disputes,

(d) the information that is to be made available by postal operators to users
of their services about service standards and about the rights of those
5users, and

(e) anything else appearing to OFCOM to be necessary to secure effective
protection for those users.

(4) The reference in subsection (2)(c) to qualifying consumer expenses of the
National Consumer Council or the Office of Fair Trading is to—

(a) 10such proportion of the expenses of the National Consumer Council as
the Secretary of State considers reasonable having regard to the
functions exercisable by it in relation to users of postal services, and

(b) such proportion of the expenses of the Office of Fair Trading incurred
in connection with its support of any public consumer advice scheme
15as the Secretary of State considers reasonable having regard to the
functions under the scheme exercisable in relation to those users.

(5) In imposing a consumer protection condition, OFCOM must (so far as they
consider appropriate) secure that—

(a) the procedures for the handling of complaints and the resolution of
20disputes are easy to use, transparent and effective and otherwise
facilitate the settling of disputes fairly and promptly,

(b) users have the right to use those procedures free of charge, and

(c) if a postal operator contravenes a consumer protection condition, the
operator follows such procedures as may be required by the condition.

(6) 25The Secretary of State may direct OFCOM to include provision within
subsection (2)(c) in consumer protection conditions.

(7) In this section and section 52 any reference, in relation to postal operators, to
users of their services is to users of any of the postal services provided by the
operators.

(8) 30In this section “specified” means specified in the consumer protection
condition.

52 Provision that may be made by consumer protection conditions

(1) A consumer protection condition may require postal operators to be members
of an approved redress scheme.

(2) 35A “redress scheme” is a scheme under which complaints about postal
operators by users of their services may be made to, and investigated and
determined by, a person who is independent of postal operators and OFCOM.

(3) A redress scheme is “approved” if it is approved by OFCOM in accordance
with Schedule 5.

(4) 40For the purposes of the law relating to defamation, proceedings under an
approved redress scheme are to be treated in the same way as proceedings
before a court.

(5) A consumer protection condition may require postal operators—

(a) to provide information to OFCOM with respect to the levels of
45compliance with the standards for the handling of complaints, and

(b) to publish information about the number of complaints made about
them (whether under an approved redress scheme or otherwise) and
the way in which the complaints have been dealt with.

(6) Requirements may be contained in the condition as to the times at which, and
5the manner in which, any information is to be published as a result of
subsection (5)(b).

(7) A consumer protection condition imposed on a universal service provider
must include a requirement within subsection (5)(b).

General provisions

53 10Imposition, modification or revocation of regulatory conditions

Schedule 6 contains general provision about the imposition of regulatory
conditions and their modification or revocation.

54 Enforcement of regulatory requirements

Schedule 7 makes provision for the enforcement of regulatory requirements
15imposed by OFCOM in carrying out their functions in relation to postal
services.

55 Information

(1) Schedule 8 makes provision for requiring information to be provided to
OFCOM for the purpose of carrying out their functions in relation to postal
20services or for related purposes.

(2) In that Schedule—

(a) Part 1 makes provision authorising OFCOM to require information to
be provided to them,

(b) Part 2 makes provision for the enforcement of those requirements, and

(c) 25Part 3 contains supplementary provision.

(3) Nothing in Schedule 7 to the Postal Services Act 2000 (disclosure of
information) prevents the Postal Services Commission from disclosing
information to OFCOM for the purposes of OFCOM’s functions in relation to
postal services.

56 30General restriction on disclosure of information

(1) Information that—

(a) is obtained as a result of this Part, and

(b) relates to the affairs of an individual or to a particular business,

must not be disclosed during the lifetime of the individual or so long as the
35business is carried on, except as provided by this section.

(2) Disclosure is permitted—

(a) with the consent of the individual or the person for the time being
carrying on the business,

(b) for the purpose of facilitating the carrying out by OFCOM of any of
40their functions,

(c) for the purpose of facilitating the carrying out by the Secretary of State,
the Treasury or the Competition Commission of any of their functions
under this Act,

(d) for the purpose of facilitating the carrying out by a prescribed body or
5other person of any functions under a prescribed enactment,

(e) in connection with the investigation of any criminal offence or for the
purposes of any criminal proceedings,

(f) for the purposes of any civil proceedings brought as a result of this Part
or any prescribed enactment,

(g) 10in pursuance of an EU obligation, or

(h) in any other prescribed circumstances or for any other prescribed
purpose.

(3) In subsection (2) “prescribed” means prescribed by an order of the Secretary of
State.

(4) 15An order under subsection (3) is subject to affirmative resolution procedure.

(5) This section does not apply to information that has been made available to the
public by being disclosed in circumstances in which, or for a purpose for
which, disclosure is not precluded by this section.

(6) This section also does not apply to information that is subject to the disclosure
20regime in Part 9 of the Enterprise Act 2002 as a result of—

(a) section 393(8) of the Communications Act 2003 (information obtained
by OFCOM in exercise of competition functions), or

(b) section 29(3) of the Consumers, Estate Agents and Redress Act 2007
(information obtained by the National Consumer Council).

(7) 25A person who discloses information in contravention of this section commits
an offence.

(8) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding the statutory
maximum, or

(b) 30on conviction on indictment, to a fine or imprisonment for a term not
exceeding two years or both.

Appeals

57 Decisions by OFCOM to impose regulatory conditions, penalties etc

(1) For the purposes of this section a “qualifying decision” means—

(a) 35a decision to impose or modify a regulatory condition,

(b) a decision to give, modify or withdraw a direction, consent or approval
that falls within paragraph 2 of Schedule 6,

(c) a decision to impose a penalty, or give or modify a direction, under any
provision of Schedule 4, 7 or 8,

(d) 40a decision to give or modify a direction under section 89A or 116(2A) of
the Postal Services Act 2000 (schemes as to terms and conditions for
provision of postal services, and the Postcode Address File), or

(e) a decision to give a direction under section 25(5) of the Consumers,
Estate Agents and Redress Act 2007 (enforcement of requirements to
45give information to the National Consumer Council).

(2) A person affected by a qualifying decision may appeal against it to the
Competition Appeal Tribunal (“the CAT”).

(3) The means of making an appeal is by sending the CAT a notice of appeal in
accordance with rules made under section 15 of the Enterprise Act 2002.

(4) 5The notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in those rules.

(5) In determining an appeal under this section the CAT must apply the same
principles as would be applied by a court on an application for judicial review.

(6) The CAT must either—

(a) 10dismiss the appeal, or

(b) quash the whole or part of the qualifying decision to which the appeal
relates.

(7) If the CAT quashes the whole or part of a qualifying decision, it may refer the
matter back to the person who made the decision with a direction to reconsider
15and make a new decision in accordance with its ruling.

(8) The CAT may not direct the person who made the decision to take any action
that the person would not otherwise have the power to take in relation to the
decision.

(9) Except in the case of a decision to impose a penalty, or give or modify a
20direction, under Schedule 4, 7 or 8, the effect of a qualifying decision is not
suspended by the making of an appeal against the decision under this section.

58 Appeals from the CAT

(1) An appeal lies to the appropriate court on any point of law arising from a
decision of the CAT under section 57.

(2) 25An appeal under this section may be brought by—

(a) a party to the proceedings before the CAT, or

(b) any other person who has a sufficient interest in the matter.

(3) An appeal under this section requires the permission of the CAT or the
appropriate court.

(4) 30In this section “the appropriate court” means—

(a) in relation to England and Wales and Northern Ireland, the Court of
Appeal, and

(b) in relation to Scotland, the Court of Session.

59 Price control decisions

(1) 35A person affected by a price control decision may appeal against it by sending
a notice of appeal to OFCOM within the period of two months beginning with
the day on which the decision is published.

(2) The notice of appeal must set out the grounds of appeal in sufficient detail to
indicate the error (or errors) which the appellant contends OFCOM made.

(3) 40OFCOM must refer any appeal made in accordance with this section (and with
rules made under section 60) to the Competition Commission (“the
Commission”) as soon as reasonably practicable after it is made.

(4) The making of an appeal against a decision does not suspend the effect of the
decision.

(5) The Commission must determine an appeal before the end of—

(a) the period of 4 months beginning with the day on which OFCOM refer
5the appeal to it, or

(b) if the decision appealed against is not an initial price control decision
and the Commission considers that the circumstances of the case are
exceptional, the period of 6 months beginning with that day.

If paragraph (b) applies, the Commission must, before the end of the period
10mentioned in paragraph (a), publish its reasons for considering that the
circumstances of the case are exceptional.

(6) On determining the appeal, the Commission must—

(a) dismiss the appeal,

(b) allow the appeal and make its own decision on the subject matter of the
15appeal, or

(c) quash the whole or part of the price control decision to which the
appeal relates.

(7) The Commission may allow the appeal, or quash the whole or part of the price
control decision to which the appeal relates, only if it considers that OFCOM
20made a material error.

(8) If the Commission quashes the whole or part of a price control decision, it may
refer the matter back to OFCOM with a direction to reconsider and make a new
decision in accordance with its ruling.

(9) The Commission may not direct OFCOM to take any action that they would
25not otherwise have the power to take in relation to the decision.

(10) OFCOM must give effect to any decision of the Commission under subsection
(6)(b) as soon as is reasonably practicable after it is made.

(11) The Commission may investigate any matter or do any other thing for the
purpose of making a decision under subsection (6)(b) or (c).

(12) 30Any decision made by the Commission under subsection (6) other than one
relating to an initial price control decision is a qualifying decision for the
purposes of section 57.

(13) In this section—

• a “price control decision” means—

  (a)

  35a decision of OFCOM as to the tariffs that are to be used as
  mentioned in section 36(4) (designated USP condition: tariffs),
  or

  (b)

  a decision of OFCOM (other than under Part 2 of Schedule 3) as
  to prices that may be charged for the giving of access under an
  40access condition, and

• an “initial price control decision” means—

  (a)

  the first decision of OFCOM within paragraph (a) of the
  definition of “price control decision”, or

  (b)

  the first decision of OFCOM within paragraph (b) of that
  45definition.

60 Section 59: supplementary

(1) The Commission may make rules about the making, conduct and disposal of
appeals under section 59.

(2) The rules may, in particular, impose time limits or other restrictions on—

(a) 5the taking of evidence at an oral hearing, or