Postal Services Act 2011

Section 66

SCHEDULE 9E+W+S+N.I.Transitional provisions for Part 3

This schedulenoteType=Explanatory Notes has no associated

IntroductionE+W+S+N.I.

1In this Schedule—E+W+S+N.I.

  • the appointed day” means the day appointed under section 93(3) as the day on which the provisions of Part 3 come generally into force,

  • Postcomm” means the Postal Services Commission,

  • the transitional period” means the period beginning with the day on which this Act is passed and ending immediately before the appointed day, and

  • the 2000 Act” means the Postal Services Act 2000.

The universal postal serviceE+W+S+N.I.

2(1)Until the first universal postal service order under section 30 comes into force—E+W+S+N.I.

(a)references in Part 3 to a universal postal service are to be read as references to a universal postal service as defined by section 4(1) and (2) of the 2000 Act, and

(b)references in Part 3 to services within the scope of the universal postal service are to be read as references to services that immediately before the appointed day were, according to section 7A of the 2000 Act, not outside the scope of the universal postal service in the United Kingdom.

(2)Section 29 (duty to secure provision of universal postal service) is to have effect during the transitional period as if the references in that section (other than in subsection (2)) to OFCOM included Postcomm.

Provisional designation of universal service providersE+W+S+N.I.

3(1)OFCOM may before the appointed day designate provisionally, with effect from that date, one or more postal operators as universal service providers.E+W+S+N.I.

(2)A provisional designation must be—

(a)notified to the person designated,

(b)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, and

(c)notified to the European Commission.

(3)Whilst in force a provisional designation has the same effect as designation under section 35.

(4)A provisional designation ceases to have effect on the making of the first designation under that section.

Regulatory conditions applicable as from appointed dayE+W+S+N.I.

4(1)OFCOM must determine before the end of the transitional period what regulatory conditions (“initial conditions”) are to apply to postal operators on and after the appointed day.E+W+S+N.I.

(2)Except as mentioned below, the initial conditions applicable to—

(a)universal service providers, and

(b)other postal operators,

must be to substantially the same effect as the licence conditions applying immediately before the appointed day to the universal service provider or (as the case may be) in relation to the corresponding description of operator.

(3)Sub-paragraph (2) does not apply to consumer protection conditions (and, accordingly, references elsewhere in this Schedule to initial conditions do not include consumer protection conditions).

(4)If it appears to OFCOM to be unnecessary to maintain any provision made by the existing licence conditions, sub-paragraph (2) does not require OFCOM to replicate that provision in the initial conditions.

(5)The provisions of Part 3 as to what regulatory conditions may be imposed—

(a)have effect subject to sub-paragraph (2) in their application to the imposition of initial conditions, and

(b)do not apply in relation to the modification of initial conditions.

5(1)This paragraph applies to licence conditions—E+W+S+N.I.

(a)which apply immediately before the appointed day to the universal service provider or other postal operators, and

(b)which contain provision of a kind that (but for this paragraph) could not be contained in any regulatory condition under Part 3.

(2)The provision made by those licence conditions is to be regarded for the purposes of Part 3 as being capable of being imposed by a regulatory condition under that Part (to be known as a “transitory condition”).

(3)Accordingly—

(a)the references in paragraph 4 to initial conditions include transitory conditions, and

(b)paragraph 4(2) and(4) apply in relation to those licence conditions as they apply in relation to other licence conditions.

(4)A transitory condition is (as a result of this sub-paragraph) to be treated as revoked at the time when the first universal postal service order under section 30 comes into force.

6(1)If OFCOM modify the initial conditions, they may not impose any conditions that could not have been imposed under Part 2 of the 2000 Act.E+W+S+N.I.

(2)The provisions of Part 3 about—

(a)the procedure for imposing, modifying or revoking regulatory conditions,

(b)the enforcement of regulatory conditions, and

(c)appeals,

apply to initial conditions as to other regulatory conditions.

(3)Any decision of OFCOM pursuant to paragraph 4(2) is not to be regarded as an initial price control decision for the purposes of section 59.

(4)This paragraph applies in relation to transitory conditions as it applies in relation to other initial conditions, except that sub-paragraph (2)(a) does not apply in relation to the revocation of a transitory condition.

Recovery of administrative charges incurred by OFCOME+W+S+N.I.

7(1)This paragraph applies in relation to the first charging year under Schedule 4 (recovery of administrative charges incurred by OFCOM).E+W+S+N.I.

(2)OFCOM must prepare a statement of the principles that they are proposing to apply in fixing administrative charges under paragraph 1 of that Schedule for that year (and the charges must be fixed in accordance with those principles), but there is no requirement for the statement to be in force at the beginning of that year or at the time the charges are fixed.

(3)Sub-paragraph (2) has effect instead of paragraph 1(2) of that Schedule.

(4)Paragraph 3(5) of that Schedule has effect as if the reference to the statement of charging principles in force at the beginning of the charging year were a reference to the statement of charging principles relating to the charging year.

Power to extend operation of time-limited licence conditionE+W+S+N.I.

8(1)This paragraph applies if it appears to the Secretary of State—E+W+S+N.I.

(a)that a licence condition applicable before the appointed day to the universal service provider depends for its continuing operation on forecast figures indicating the volume of business in future periods (“index years”) set out in the condition, and

(b)that the index years and forecast figures set out in the condition do not extend beyond the index year ending 31 March 2011.

(2)The Secretary of State may by order amend that condition so as to specify a forecast figure for the index year ending 31 March 2012.

(3)The power of the Secretary of State is limited to inserting a forecast figure produced by applying the same methods as were used by Postcomm to determine the forecast figure for the index years presently set out in the condition.

(4)If it appears to the Secretary of State that Postcomm has produced, using those methods, a forecast figure for the index year ending 31 March 2012, the Secretary of State may adopt its figure and need not repeat, or examine the basis of, the work done by it in producing that figure.

(5)Before making an order under this paragraph the Secretary of State must—

(a)consult the universal service provider and such other persons as the Secretary of State considers appropriate, and

(b)consider any representations made before the end of the consultation period.

(6)The consultation period, in relation to a person, is the period of 21 days beginning with the day on which the person is consulted.

(7)The requirements of sub-paragraph (5) may be met by consultation and consideration before the passing of this Act.

(8)If an order under this paragraph is made before the appointed day, the reference in paragraph 4(2) to the licence conditions applicable immediately before that day is to be read accordingly as a reference to the conditions as amended by the order.

Anticipatory exercise of powersE+W+S+N.I.

9(1)During the transitional period the provisions of Part 3 relating to—E+W+S+N.I.

(a)the designation of a universal service provider, and

(b)the imposition of regulatory conditions on postal operators,

have effect so far as necessary to enable OFCOM to undertake work with a view to making a designation, or imposing regulatory conditions, under that Part as soon as practicable on or after the appointed day.

(2)The work referred to in sub-paragraph (1) includes, in particular, consultation with existing licensed operators and others in connection with the imposition of regulatory conditions.

10The provisions of Part 3 also come into force at the beginning of the transitional period so far as necessary to enable the making of any regulations, order or scheme by OFCOM or the Secretary of State.E+W+S+N.I.

11(1)The provisions of section 55 and Schedule 8 (information) have effect during the transitional period so far as necessary for the purposes of the carrying out by OFCOM of their functions during or after that period.E+W+S+N.I.

(2)The provisions of section 56 (general restriction on disclosure of information) have effect accordingly.

Reliance by OFCOM on work done by PostcommE+W+S+N.I.

12In carrying out any of their functions under Part 3 OFCOM may rely on anything done by or in relation to Postcomm at any time before the passing of this Act.E+W+S+N.I.

Consultation on exercise of existing regulatory functionsE+W+S+N.I.

13During the transitional period Postcomm must consult OFCOM before taking any step with a view to modifying or revoking the conditions of a licence under Part 2 of the 2000 Act.E+W+S+N.I.

Enforcement action by Postcomm etcE+W+S+N.I.

14(1)This paragraph applies to a contravention of a condition of a licence under Part 2 of the 2000 Act in respect of which Postcomm was in the process of doing something immediately before the day on which paragraph 3 of Schedule 12 comes into force (repeal of Part 2 of 2000 Act).E+W+S+N.I.

(2)OFCOM are to have the power to do anything that they consider appropriate to do in relation to the contravention in question.

(3)In particular, OFCOM may continue or discontinue any legal proceedings under section 30 of the 2000 Act (financial penalties) begun by Postcomm in respect of the contravention in question.

(4)References in this paragraph to a contravention include anything that Postcomm considered might be a contravention.

15(1)This paragraph applies if, at any time on or after the day on which paragraph 3 of Schedule 12 comes into force, OFCOM are satisfied that a person has contravened a condition of a licence under Part 2 of the 2000 Act.E+W+S+N.I.

(2)Despite the repeal of that Part, OFCOM are to have—

(a)the power to begin legal proceedings under section 30 of the 2000 Act in respect of the contravention in question, and

(b)the power to do anything else that they consider appropriate to do in relation to it.

References to universal service providerE+W+S+N.I.

16References in this Schedule to the universal service provider, in relation to periods before the appointed day, are to the operator whose identity is for the time being notified to the European Commission as being the provider of a universal postal service in the United Kingdom.E+W+S+N.I.

SavingE+W+S+N.I.

17Nothing in this Schedule is to be read as impliedly restricting the generality of the power to make transitional provision by order under section 93(4).E+W+S+N.I.