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Postal Services Bill


Postal Services Bill
Part 3 — Regulation of postal services

24

 

(c)   

in the opinion of OFCOM the service is of a kind that, from the point of

view of users of postal services, could reasonably be said to be

interchangeable with a service of a description set out in that order.

(2)   

In this section any reference to a service includes a part of a service.

40      

General universal service conditions

5

(1)   

OFCOM may impose a general universal service condition on—

(a)   

every postal operator providing a service within the scope of the

universal postal service, or

(b)   

every postal operator providing a service within the scope of the

universal postal service of a description specified in the condition.

10

(2)   

A general universal service condition is—

(a)   

a condition containing such obligations as OFCOM consider necessary

to impose for, or in connection with, securing the provision of a

universal postal service in accordance with the standards set out in the

universal postal service order, or

15

(b)   

a condition containing such obligations as OFCOM consider necessary

to impose for the purposes of section 44.

(3)   

A general universal service condition may require a person

(a)   

to make contributions in accordance with any scheme established under section

44, and

20

(b)   

to take such steps as may be required by any such scheme as regards

contributions made by users of services within the scope of the universal postal

service.

(4)   

At any time when there is a universal service provider, nothing in subsection

(2)(a) is to be read as authorising the imposition of a condition requiring a

25

person—

(a)   

to deliver or collect letters or other postal packets as mentioned in

section 30,

(b)   

to provide a service throughout the United Kingdom, or

(c)   

to provide a service at an affordable price in accordance with a public

30

tariff which is uniform throughout the United Kingdom.

41      

Recovery of administrative charges incurred by OFCOM

Schedule 4 makes provision authorising OFCOM to impose charges on postal

operators providing services within the scope of the universal postal service to meet

costs incurred by OFCOM in carrying out their functions in relation to postal services.

35

Financial support for universal postal service

42      

Review of costs of universal service obligations

(1)   

OFCOM may from time to time review the extent (if any) of the financial

burden for a universal service provider of complying with its universal service

obligations.

40

 
 

Postal Services Bill
Part 3 — Regulation of postal services

25

 

(2)   

In carrying out a review under this section OFCOM must consider the extent

to which, in their opinion, the provider is complying with its universal service

obligations in a cost-efficient manner.

(3)   

If—

(a)   

regulations under section 34 require the financial burden of complying

5

with universal service obligations (or proposed universal service

obligations) to be taken into account in determining whom to

designate, and

(b)   

the regulations provide for a particular method of calculating that

burden to be used for the purposes of that determination,

10

   

that must be the method of calculation applied on a review under this section.

(4)   

If subsection (3) does not apply, the financial burden of complying is to be

taken to be the amount calculated by OFCOM to be the net cost of compliance

after allowing for market benefits accruing to the universal service provider

from—

15

(a)   

the provider’s designation, and

(b)   

the application to the provider of universal service obligations.

(5)   

After carrying out a review under this section OFCOM must either—

(a)   

ensure that the calculations made by them on the review are audited by

a person who appears to them to be independent of universal service

20

providers, or

(b)   

carry out an audit of those calculations themselves.

(6)   

OFCOM must ensure that a report on the audit—

(a)   

is prepared, and

(b)   

if not prepared by OFCOM, is provided to them.

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(7)   

OFCOM must publish—

(a)   

their conclusions on the review, and

(b)   

a summary of the report of the audit which was carried out as respects

the calculations made for the purposes of that review.

(8)   

The publication must be in such manner as OFCOM consider appropriate for

30

bringing it to the attention of the persons who, in their opinion, are likely to be

affected by it.

(9)   

The Secretary of State may at any time direct OFCOM to carry out a review

under this section.

(10)   

Unless directed to do so by the Secretary of State, OFCOM may not carry out a

35

review under this section before the end of the period of 3 years beginning with

the day on which this section comes into force.

43      

Fairness of bearing burden of universal service obligations

(1)   

This section applies if OFCOM—

(a)   

have concluded on a review under section 42 that complying with its

40

universal service obligations imposes a financial burden on a universal

service provider, and

(b)   

have published that conclusion in accordance with that section.

 
 

Postal Services Bill
Part 3 — Regulation of postal services

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(2)   

OFCOM must determine whether they consider it is or would be unfair for the

provider to bear, or to continue to bear, the whole or a part of the burden of

complying with its universal service obligations.

(3)   

The determination by OFCOM of—

(a)   

whether it is or would be unfair for the provider to bear, or to continue

5

to bear, that burden, or

(b)   

the extent (if any) to which that is or would be unfair,

   

must be made in accordance with regulations made by OFCOM.

(4)   

OFCOM must publish the determination.

(5)   

The publication must be in such manner as OFCOM consider appropriate for

10

bringing it to the attention of the persons who, in their opinion, are likely to be

affected by it.

(6)   

If OFCOM determine that it is or would be unfair for the provider to bear, or

to continue to bear, the whole or a part of that burden, they must submit a

report to the Secretary of State setting out their recommendations as to the

15

action (if any) that they consider ought to be taken to deal with the burden.

(7)   

The report may make recommendations—

(a)   

about the order in which action ought to be taken, and

(b)   

as to whether the taking of action ought to be contingent on the success

or otherwise of the taking of other action.

20

(8)   

The recommended action may consist of one or more of the following—

(a)   

the carrying out of a review under section 33 (review of minimum

requirements),

(b)   

requiring contributions to be made in accordance with section 44 for

meeting some or all of that burden, and

25

(c)   

the making of a procurement determination.

(9)   

A procurement determination is a determination by OFCOM as to whether, in

their opinion, any particular postal operator or operators (which may include

the provider) could provide any of the postal services required to be provided

by the universal service obligations concerned in a way which would mean

30

that—

(a)   

no unfair financial burden would be imposed on any person (or

persons) in complying with those obligations, or

(b)   

the financial burden imposed on any person (or persons) in complying

with those obligations would be less unfair than the one mentioned in

35

subsection (6).

(10)   

A procurement determination must be made in accordance with regulations

made by OFCOM.

(11)   

After receiving the report under subsection (6), the Secretary of State must

determine what action (if any) the Secretary of State considers ought to be

40

taken by OFCOM to deal with the burden.

(12)   

The Secretary of State may then direct OFCOM to take that action.

(13)   

A direction under subsection (12) may make provision—

(a)   

about the order in which specified action is to be taken, and

(b)   

for the taking of specified action to be contingent on the success or

45

otherwise of the taking of other specified action.

 
 

Postal Services Bill
Part 3 — Regulation of postal services

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In this subsection “specified” means specified in the direction.

44      

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)   

The contributions are to be made by either or both of the following

5

(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)   

OFCOM may determine that the contributions under this section are to be

10

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)   

OFCOM must exercise their power to make the regulations in a way they

15

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

description of postal operators) or particular users (or a particular

20

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)   

the scheme, and

25

(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

independence of both—

30

(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)   

the Secretary of State has consented to the making of them and

35

(b)   

a draft of the statutory instrument containing them has been laid

before, and approved by a resolution of, each House of Parliament.

45      

Report on sharing mechanism

(1)   

This section applies where regulations under section 44 provide for a scheme

for the assessment, collection and distribution of contributions.

40

(2)   

OFCOM must prepare and publish a report setting out, in relation to the period

to which it applies—

 
 

Postal Services Bill
Part 3 — Regulation of postal services

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(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

5

accrued to the provider during that period from its designation and the

application 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

10

12 months beginning with the coming into force of the first regulations made

under section 44.

(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—

15

(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—

20

(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

25

of the matter would or might, in OFCOM’s opinion, seriously and

prejudicially 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.

30

(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

46      

Notification by postal operators

35

(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

40

sections 33 to 37 of the Communications Act 2003 (requirements to notify

before carrying on a regulated activity).

 
 

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Part 3 — Regulation of postal services

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(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.

5

(6)   

Information recorded in the register must be recorded in such manner as

OFCOM consider appropriate.

(7)   

OFCOM must publish a notice setting out—

(a)   

the times at which the register is for the time being available for public

inspection, and

10

(b)   

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

the register.

(8)   

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.

15

(9)   

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 (7).

(10)   

Regulations under this section are subject to negative resolution procedure.

20

47      

Essential conditions

(1)   

OFCOM may impose an essential condition on—

(a)   

every 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

25

consider necessary to impose for, or in connection with, any one or more of the

following purposes—

(a)   

safeguarding confidentiality in connection with the sending,

conveyance and delivery of letters,

(b)   

safeguarding security where dangerous goods are transported,

30

(c)   

safeguarding the confidentiality of information conveyed,

(d)   

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

(e)   

securing the delivery of postal packets to the intended addressees.

48      

General access conditions

(1)   

OFCOM may impose a general access condition on a particular postal operator

35

(or operators).

(2)   

A general access condition is a condition requiring the operator to do either or

both 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

40

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)

 
 

Postal Services Bill
Part 3 — Regulation of postal services

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(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

5

others for the provision of any service).

(4)   

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, and

(b)   

promoting effective competition.

10

(5)   

In deciding what obligations to impose in general access conditions in a

particular case, OFCOM must (in addition to taking into account anything

relevant for the purpose of performing their duty under section 28) take into

account, in particular, the following factors—

(a)   

the technical and economic viability, having regard to the state of

15

market development, of installing and using facilities that would make

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,

20

(d)   

the need to secure effective competition in the long term, and

(e)   

any 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

25

comprised in the infrastructure.

(7)   

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

30

OFCOM.

49      

Consumer protection conditions

(1)   

OFCOM may impose a consumer protection condition on—

(a)   

every postal operator, or

(b)   

every postal operator of a specified description.

35

(2)   

A consumer protection condition is a condition requiring the operator to do

one 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

40

respect to consumer protection matters, and

(c)   

to 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

45

services,

 
 

 
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