|
| |
|
(4) | If OFCOM determine that it would be unfair for the provider to bear, or to |
| |
continue to bear, the whole or a part of the burden, they may determine that |
| |
contributions for meeting that burden are to be made— |
| |
(a) | by providers of postal services within the scope of the universal postal |
| |
| 5 |
(b) | by users of such services (by way of the charges paid by them), or |
| |
(c) | by both providers and users of such services. |
| |
| OFCOM may determine that the contributions are to be made only by a |
| |
description of providers or users. |
| |
(5) | The assessment, collection and distribution of contributions must be carried |
| 10 |
out in accordance with a mechanism provided for in a scheme contained in |
| |
regulations made by OFCOM. |
| |
(6) | OFCOM must exercise their power to make regulations under this section in a |
| |
manner they consider will secure that the scheme operates— |
| |
(a) | in an objective, proportionate and transparent manner; |
| 15 |
(b) | in a manner that does not involve, or tend to give rise to, any undue |
| |
| |
(i) | particular postal operators (or a particular description of postal |
| |
| |
(ii) | particular users (or a particular description of users); and |
| 20 |
(c) | in a manner that avoids, or (if that is impracticable) at least minimises, |
| |
any distortion of competition. |
| |
(7) | The regulations may provide for the scheme, and for any fund set up for the |
| |
purposes of the scheme, to be administered either by OFCOM or by another |
| |
person specified in the regulations. |
| 25 |
| A person other than OFCOM may be specified only if OFCOM are satisfied as |
| |
to the person’s independence of both the universal service provider and |
| |
providers of postal services within the scope of the universal postal service. |
| |
(8) | Regulations under subsection (5) may not be made unless— |
| |
(a) | the Secretary of State has consented to the making of the regulations, |
| 30 |
| |
(b) | a draft of the statutory instrument containing the regulations has been |
| |
laid before Parliament and approved by a resolution of each House of |
| |
| |
44 | Report on sharing mechanism |
| 35 |
(1) | This section applies where regulations under section 43 provide for a scheme |
| |
for the assessment, collection and distribution of contributions. |
| |
(2) | OFCOM must prepare and publish a report setting out, in relation to the period |
| |
| |
(a) | every determination by OFCOM that has had effect in relation to a time |
| 40 |
in that period as a determination of the costs of providing anything |
| |
required to be provided by the universal service provider in pursuance |
| |
of its universal service obligations; |
| |
(b) | the market benefits for the universal service provider that have accrued |
| |
to the provider during that period from— |
| 45 |
(i) | the provider’s designation, and |
| |
|
| |
|
| |
|
(ii) | the application to the provider of universal service obligations; |
| |
| |
(c) | the contribution made under section 43 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 |
| 5 |
12 months beginning with the coming into force of the first regulations made |
| |
| |
(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) | Every report under this section— |
| 10 |
(a) | must be prepared as soon as practicable after the end of the period to |
| |
which it is to apply, and |
| |
(b) | must be published as soon as practicable after its preparation is |
| |
| |
(6) | OFCOM are not required under this section— |
| 15 |
(a) | to publish any matter that is confidential, or |
| |
(b) | to 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 |
| 20 |
of the matter would or might, in OFCOM’s opinion, seriously and |
| |
prejudicially affect the interests of the body; |
| |
(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. |
| 25 |
(8) | A report under this section must be published in such manner as OFCOM |
| |
consider 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 |
| |
45 | Notification by postal operators |
| 30 |
(1) | The Secretary of State may make regulations requiring persons to notify |
| |
OFCOM 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 |
| 35 |
sections 33 to 37 of the Communications Act 2003 (c. 21) (requirements to |
| |
notify before 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. |
| 40 |
(5) | OFCOM must establish and maintain a register which records every |
| |
notification given to them under the regulations. |
| |
|
| |
|
| |
|
| Information recorded in the register must be recorded in such manner as |
| |
OFCOM consider appropriate. |
| |
(6) | OFCOM must publish a notice setting out— |
| |
(a) | the times at which the register is for the time being available for public |
| |
| 5 |
(b) | the fees that must be paid for, or in connection with, an inspection of |
| |
| |
| The 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 |
| |
| 10 |
(7) | OFCOM must make the register available for public inspection— |
| |
(a) | during such hours, and |
| |
(b) | on payment of such fees, |
| |
| as are set out in the notice for the time being in force under subsection (6). |
| |
(8) | Regulations under this section are subject to negative resolution procedure. |
| 15 |
| |
(1) | An essential condition is a condition that OFCOM consider necessary to |
| |
impose for any one or more of the following purposes— |
| |
(a) | safeguarding confidentiality in connection with the sending, |
| |
conveyance and delivery of letters, |
| 20 |
(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, |
| |
(e) | securing the delivery of postal packets to the intended addressees. |
| |
(2) | An essential condition may be applied— |
| 25 |
(a) | to every postal operator, or |
| |
(b) | to every postal operator of a description specified in the condition. |
| |
47 | General access conditions |
| |
(1) | A general access condition is a condition that OFCOM impose on a postal |
| |
operator requiring it to do either or both of the following— |
| 30 |
(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 |
| |
different matters relating to access of a kind within paragraph (a) |
| 35 |
(including proposed or potential access of that kind) as OFCOM may |
| |
| |
(2) | 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 |
| 40 |
others for the provision of any service). |
| |
(3) | OFCOM 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; |
| |
|
| |
|
| |
|
(b) | promoting effective competition. |
| |
(4) | In deciding what general access conditions to impose in a particular case, |
| |
OFCOM must 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 |
| 5 |
the 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 |
| 10 |
(e) | any rights to intellectual property that are relevant to the proposal. |
| |
(5) | 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. |
| 15 |
| |
(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 |
| |
| 20 |
48 | Consumer protection conditions |
| |
(1) | A consumer protection condition is a condition that OFCOM impose requiring |
| |
postal operators, or such descriptions of them as OFCOM consider |
| |
appropriate, to do one or more of the following— |
| |
(a) | to assume specified liability in respect of specified loss of or damage to |
| 25 |
specified postal packets, |
| |
(b) | to establish and maintain procedures, standards and policies with |
| |
respect to consumer protection matters, |
| |
(c) | to make payments relating to qualifying consumer expenses of the |
| |
National Consumer Council or the Office of Fair Trading. |
| 30 |
(2) | The reference in subsection (1)(b) to consumer protection matters is to— |
| |
(a) | the handling of complaints made to postal operators by users of their |
| |
| |
(b) | the resolution of disputes between postal operators and users of their |
| |
| 35 |
(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 |
| |
| 40 |
(e) | anything else appearing to OFCOM to be necessary to secure effective |
| |
protection for those users. |
| |
(3) | The reference in subsection (1)(c) to qualifying consumer expenses of the |
| |
National Consumer Council or the Office of Fair Trading is to— |
| |
(a) | such proportion of the expenses of the National Consumer Council as |
| 45 |
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 |
| |
as the Secretary of State considers reasonable having regard to the |
| |
functions under the scheme exercisable in relation to those users. |
| |
(4) | In imposing a consumer protection condition, OFCOM must (so far as they |
| 5 |
consider appropriate) secure that— |
| |
(a) | the procedures for the handling of complaints and the resolution of |
| |
disputes 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 |
| 10 |
(c) | if a postal operator contravenes a consumer protection condition, the |
| |
operator follows such procedures as may be required by the condition. |
| |
(5) | The Secretary of State may direct OFCOM to include provision within |
| |
subsection (1)(c) in consumer protection conditions. |
| |
(6) | In this section and section 49 any reference, in relation to postal operators, to |
| 15 |
users of their services is to users of any of the postal services provided by the |
| |
| |
(7) | In this section “specified” means specified in the consumer protection |
| |
| |
49 | Provision that may be made by consumer protection conditions |
| 20 |
(1) | A consumer protection condition may require postal operators, or such |
| |
descriptions of postal operators as OFCOM consider appropriate, to be |
| |
members of an approved redress scheme. |
| |
(2) | A “redress scheme” is a scheme under which complaints about postal |
| |
operators by users of their services may be made to, and investigated and |
| 25 |
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 |
| |
| |
(4) | For the purposes of the law relating to defamation, proceedings under an |
| |
approved redress scheme are to be treated in the same way as proceedings |
| 30 |
| |
(5) | A consumer protection condition may require postal operators, or such |
| |
descriptions of postal operators as OFCOM consider appropriate— |
| |
(a) | to provide information to OFCOM with respect to the levels of |
| |
compliance with the standards for the handling of complaints, and |
| 35 |
(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 were dealt with. |
| |
(6) | Requirements may be contained in the condition as to the times at which, and |
| |
the manner in which, any information is to be published as a result of |
| 40 |
| |
(7) | A consumer protection condition imposed on the universal service provider |
| |
must include a requirement within subsection (5)(b). |
| |
(8) | Nothing in this section is to be read as restricting the generality of the provision |
| |
that may be included in consumer protection conditions. |
| 45 |
|
| |
|