Postal operators generally
Section 48: Notification by postal operators
228.Under the new authorisation system established by section 28, postal operators are not required to notify OFCOM prior to providing postal services. However, this section provides that the Secretary of State may make regulations (subject to the negative resolution procedure) requiring them to do so. The Secretary of State must consult OFCOM before making regulations. Regulations may make provisions corresponding to any of the provisions of sections 33 to 37 of the Communications Act 2003.
229.Subsection (4) provides that the maximum penalty that can be imposed by the regulations for failure to comply must not exceed the maximum under section 37(6) of the Communications Act 2003 (currently £10,000).
230.Subsections (5) to (9) provide that if the Secretary of State makes such regulations, OFCOM must establish and maintain a register to record every notification. OFCOM must publish the times when the register can be seen by the public and what fees, if any, must be paid for doing so.
Section 49: Essential conditions
231.Section 28 allows OFCOM to impose regulatory conditions on those providing postal services, which may include an “essential condition”. This section describes what “essential condition” can be imposed and on whom.
232.Subsection (1) provides that these conditions may be applied to every postal operator or to those of a particular description specified in the condition.
233.Subsection (2) provides that the essential conditions may be imposed for one of five reasons: to safeguard confidentiality of sending, conveying and delivery of letters, to safeguard security where dangerous goods are transported; to safeguard confidentiality of information conveyed; to guard against theft or loss of or damage to postal packets; and to secure the delivery of postal packets to the intended addresses.
Section 50: General access conditions
234.This section describes the general access conditions that OFCOM may impose on any postal operator requiring it to give access to other postal operators, or users of postal services, and/or to maintain accounting separation relating to this access. Access may be required to the postal operator’s postal infrastructure, including both physical infrastructure (such as letter boxes) and non-physical infrastructure (such as information relating to postcodes), or any service which the postal operator provides within the scope of the universal postal service. This section transposes the first part of Article 11a of the Directive.
235.Subsection (4) provides that a general access condition may only be imposed if it appears to OFCOM that it is necessary to protect the interests of the users of postal services and/or to promote effective competition.
236.Subsection (5) provides that in deciding what obligations to impose in general access conditions, OFCOM must take account of a number of factors, in addition to their overarching duty to secure the provision of the universal postal service set out in section 29. These include technical and economic viability, feasibility, investment made by the postal operator, the need to secure effective competition in the long term, and any relevant intellectual property rights.
237.Subsection (6) provides that for the purposes of this section, 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.
238.This section is supplemented by the provisions in Schedule 3, which set out the kind of matters that may be included in general access conditions and the resolution of access disputes by OFCOM.
Section 51: Consumer protection conditions
239.Section 28 allows OFCOM to impose regulatory conditions on those providing postal services, which may include “a consumer protection condition”. This and section 52 describe what consumer protection condition may be imposed.
240.Subsection (1) provides that the condition may be applied to every postal operator or to those of a particular description specified in the condition.
241.Subsection (2) describes the consumer protection condition that OFCOM may impose on any postal operator. It may include requiring the postal operator to assume specified liability for loss of, or damage to, postal packets, to establish and maintain procedures, standards and policies for consumer protection matters, and to make payments relating to qualifying consumer expenses of the National Consumer Council or the Office of Fair Trading. Subsection (3) provides that “consumer protection matters” include the handling of complaints, resolution of disputes, provision of remedies and redress, and information to users about service standards and users’ rights.
242.Subsection (4) provides that the reference to “qualifying consumer expenses” of the National Consumer Council or the Office of Fair Trading is to such of their expenses as the Secretary of State considers reasonable, having regard to their functions exercisable in relation to users of postal services.
243.Subsection (5) provides that in imposing a consumer protection condition, OFCOM must, as far as they consider appropriate, secure that the procedures for handling complaints and resolving disputes are easy to use, transparent, effective and facilitate the settling of disputes fairly and promptly; that they are free of charge to users; and that where postal operators contravene the condition the operator follows the procedure as may be required by the condition.
244.Subsection (6) provides that the Secretary of State may direct OFCOM to include provision within consumer protection conditions relating to the payment of expenses of the National Consumer Council or the Office of Fair Trading.
245.This section implements Article 19 of the Postal Services Directive (Directive 2008/6/EC) which provides that Member States must ensure that transparent, simple and inexpensive procedures are made available for dealing with postal users’ complaints.
Section 52: Provision that may be made by consumer protection conditions
246.This section provides that postal operators may be required by a consumer protection condition to be members of a redress scheme under which complaints may be made to and investigated by an independent person. Redress schemes are approved in accordance with Schedule 5. Postal operators may be required to publish information about the number of complaints made about them, how they were dealt with, and to provide OFCOM with information about their compliance with standards for handling complaints. In the case of the designated universal service provider, a consumer protection condition must include a requirement to publish information about the number of complaints made about them. This is required by and implements Article 19.2 of the Postal Services Directive (Directive 2008/6/EC).
