Explanatory Note
(This note is not part of the Regulations)
These Regulations implement certain provisions of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25th November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (“the EU Regulation”) (OJ No L 310, 26.11.2015, p 1).
Article 5(1) of the EU Regulation requires national regulatory authorities to closely monitor and ensure compliance with Articles 3 and 4 of that Regulation, and to promote the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. For those purposes, national regulatory authorities may impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including providers of internet access services.
Article 6 of the EU Regulation requires that member States lay down the rules on penalties applicable to infringements of Articles 3, 4 and 5 of that Regulation.
Regulations 2 and 3 make provision governing the giving of notifications and the sending of other documents under these Regulations.
Regulation 4 designates OFCOM as the national regulatory authority for the purposes of Articles 3, 4 and 5 of the EU Regulation.
Regulation 5 requires OFCOM, when performing its functions under the EU Regulation or these Regulations, to take due account of all applicable guidelines issued by BEREC in accordance with Article 5(3) of the EU Regulation.
Regulation 6 gives OFCOM the power to certify one or more monitoring mechanisms, as envisaged by Article 4(4) of the EU Regulation. Article 4(4) provides that any significant continuous or regularly recurring discrepancy, where established by a monitoring mechanism certified by the national regulatory authority, between the actual performance of an internet access service regarding speed or other quality of service parameters and the performance indicated by the provider in the contract, should be deemed to constitute non-conformity of performance for the purposes of triggering the remedies available to the consumer in accordance with national law. Guidelines issued by BEREC will specify criteria for and make recommendations in relation to such monitoring mechanisms. In accordance with regulation 5 of these Regulations, in certifying monitoring mechanisms, OFCOM must take due account of all applicable guidelines issued by BEREC.
Regulations 7 to 15 make provision for OFCOM to impose, modify or revoke requirements to ensure compliance with Articles 3 and 4 of the EU Regulation or to ensure the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. These Regulations also make provision concerning directions, approvals and consents, which can be given by OFCOM or another person, for the purposes of a requirement, and for consultation for requirements and for directions, approvals and consents.
Regulation 17 contains provisions relating to OFCOM's powers to obtain information that they consider necessary for the purpose of carrying out their functions under the EU Regulation and these Regulations.
Regulation 19 provides for a notification procedure where OFCOM determine that there has been a breach of Articles 3, 4 or 5(2) of the EU Regulation or these Regulations (“a relevant breach”).
Regulation 20 gives OFCOM the power to impose a penalty for a relevant breach.
Regulation 21 provides for the amount of penalty which may be imposed under regulation 20. A penalty of up to £2,000,000 may be imposed for breach of an information requirement. A penalty of up to 10% of the turnover of “relevant business” as defined in these Regulations may be imposed by OFCOM for all other breaches of the EU Regulation or these Regulations.
Regulation 22 provides for a confirmation procedure where OFCOM is satisfied that a person has been in breach of an obligation specified in a notification given under regulation 19 of these Regulations. A person who is given a confirmation decision is under a duty to comply with it. OFCOM can enforce that duty through civil proceedings.
Regulation 23 makes it a criminal offence to breach an information requirement and sets out the relevant penalties.
Regulation 24 specifies how the turnover of “relevant business” is to be calculated for the purposes of regulation 21 of these Regulations.
Regulation 25 requires OFCOM to pay any financial penalties received under these Regulations into the Consolidated Fund.
Regulation 27 to 29 provide that a person affected by a decision of OFCOM (or, where relevant, another person) under the EU Regulation or these Regulations may appeal that decision to the Competition Appeal Tribunal. Decisions of the Competition Appeal Tribunal may be appealed on a point of law to the Court of Appeal or the Court of Session in Scotland.
Regulation 30 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them.
An impact assessment of the effect that this instrument will have on the costs of business is available from the Department of Culture, Media and Sport at 100 Parliament Street, London, SW1A 2BQ and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.
A Transposition Note has been produced for these Regulations and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.