|
| |
|
(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 |
| |
| 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 |
| |
| |
(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 |
| |
(a) | to deliver or collect letters or other postal packets as mentioned in |
| |
| |
(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 |
| |
| 40 |
|
| |
|
| |
|
(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. |
| |
| |
(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 |
| |
| |
(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 |
| |
| 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 |
| |
(b) | carry out an audit of those calculations themselves. |
| |
(6) | OFCOM must ensure that a report on the audit— |
| |
| |
(b) | if not prepared by OFCOM, is provided to them. |
| 25 |
| |
(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 |
| |
| |
(9) | The Secretary of State may at any time direct OFCOM to carry out a review |
| |
| |
(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 |
| |
| |
(b) | have published that conclusion in accordance with that section. |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
(10) | A procurement determination must be made in accordance with regulations |
| |
| |
(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. |
| |
|
| |
|
| |
|
| 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 |
| |
| |
(b) | users of services within the scope of the universal postal service (by way of the |
| |
| |
(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— |
| |
| 25 |
(b) | any fund set up for the purposes of the scheme, |
| |
| to be administered by OFCOM or some other person specified in the |
| |
| |
(7) | A person may be specified only if OFCOM are satisfied as to the person’s |
| |
| 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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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). |
| |
|
| |
|
| |
|
(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 |
| |
| 10 |
(b) | the fees that must be paid for, or in connection with, an inspection of |
| |
| |
(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 |
| |
| 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 |
| |
(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 |
| |
| |
(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 |
| |
(2) | A general access condition is a condition requiring the operator to do either or |
| |
| |
(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) |
| |
|
| |
|
| |
|
(including proposed or potential access of that kind) as OFCOM may |
| |
| |
(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. |
| |
| |
(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 |
| |
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 |
| |
|
| |
|