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Postal Services Bill [HL]


Postal Services Bill [HL]
Part 3 — Regulation of postal services

25

 

(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

service, or

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

discrimination against—

(i)   

particular postal operators (or a particular description of postal

operators), or

(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

and

(b)   

a draft of the statutory instrument containing the regulations has been

laid before Parliament and approved by a resolution of each House of

Parliament.

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

to which it applies—

(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—

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(i)   

the provider’s designation, and

 
 

Postal Services Bill [HL]
Part 3 — Regulation of postal services

26

 

(ii)   

the application to the provider of universal service obligations;

and

(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

under section 43.

(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

complete.

(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.

 
 

Postal Services Bill [HL]
Part 3 — Regulation of postal services

27

 

   

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

inspection, and

5

(b)   

the fees that must be paid for, or in connection with, an inspection of

the register.

   

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

be affected by it.

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

46      

Essential conditions

(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—

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(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)

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(including proposed or potential access of that kind) as OFCOM may

direct.

(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;

 
 

Postal Services Bill [HL]
Part 3 — Regulation of postal services

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(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

(6)   

In 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.

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

services,

(b)   

the resolution of disputes between postal operators and users of their

services,

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(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

users, and

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

 
 

Postal Services Bill [HL]
Part 3 — Regulation of postal services

29

 

(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

operators.

(7)   

In this section “specified” means specified in the consumer protection

condition.

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

with Schedule 5.

(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

before a court.

(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

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(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

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subsection (5)(b).

(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.

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