Postal Services Act 2011

Postal Services Act 2011

2011 CHAPTER 5

Commentary on Sections

Schedules

Schedule 3: Access conditions

Part 1 Provision that may be made by access conditions

420. Paragraph 1 introduces Part 1 of the Schedule and states that access conditions of the kind set out in Part 1 may by imposed.

421. Paragraph 2 provides that an access condition may include provision relating to the terms and conditions, on which a person is willing to offer access, or require such modifications as OFCOM may direct to any offer of access.

422. Paragraph 3 provides that an access condition may include provision imposing such price controls as OFCOM may direct. An access condition may also impose rules about the identification of costs and rules about the use of cost accounting systems. An access condition may also impose an obligation to have compliance with those systems audited annually by a qualified independent auditor, including meeting the costs of the audit, and an obligation to adjust prices following a direction from OFCOM.

423. Paragraph 4 provides that an access condition may include provision requiring the application of presumptions in the fixing or determining costs and charges for the purposes of price control set out in paragraph 3.

424. Paragraph 5 sets out the publication and information requirements that may form part of an access condition which imposes rules on the use of cost accounting systems.

425. Paragraph 6 makes provision for access requirements to be imposed on another person, other than the postal operator, where the access required is subject to an arrangement between the postal operator and that person and the access requires that person’s agreement. However, such requirements can not have the effect of requiring that person to do more than they would otherwise be required to do.

426. Paragraph 7 provides that, where an access condition requires accounting separation, the condition may provide for the separation to be maintained for different services, facilities or products (including those provided in different areas) and may impose requirements about the accounting methods to be used.

427. Paragraph 8 provides that an access condition may include a restriction on the use for any other purpose of information which is obtained in connection with the giving of access.

428. Paragraph 9 provides that an access condition may set time limits for compliance.

429. Paragraph 10 provides that an access condition may include provision for securing fairness and reasonableness when dealing with requests for access.

430. Paragraph 11 provides that an access condition may include a requirement of non-discrimination in relation to the giving of access.

431. Paragraph 12 provides that an access condition may include a requirement to publish all such information as OFCOM directs, for transparency in access matters, or the terms and condition on which the person is willing to offer access.

Part 2 Resolution of access disputes by OFCOM

432. Under Paragraphs 13 to 15, postal operators and users may refer disputes concerning the terms and conditions of access, including price, to OFCOM who will decide if it is appropriate from them to handle the dispute. If OFCOM does handle the dispute it must consider the dispute and make a binding determination for resolving it as soon as reasonably practicable.

433. Paragraph 16 sets out the powers that may be exercised by OFCOM when making a determination. OFCOM’s powers include: (a) setting out the rights and obligations of parties (b) fixing the terms or conditions of transactions between parties (c) imposing an obligation on parties to enter into a transaction on the terms and conditions fixed by OFCOM (d) requiring the payment, by way of an adjustment, of an underpayment or overpayment (e) requiring a party to a dispute to pay another parties costs and expenses incurred in connection with the dispute (f) ) requiring a party to a dispute to pay OFCOM’s costs in frivolous or vexations cases.

434. Paragraph 17 stipulates that the resolution of access dispute procedure is the procedure OFCOM considers appropriate. OFCOM must send a copy of their determination, and statement of reasons, to every party to the dispute and must publish so much of their determination as they consider appropriate (having regard in particular to commercial confidentiality).

435. Paragraph 18 provides that a reference to OFCOM does not prevent a person from bringing other legal proceedings. OFCOM is not prevented by a reference from exercising their powers.

436. Paragraph 19 provides that, where a dispute has been referred to OFCOM, OFCOM may require information to be provided to them.