(a) whether it is or would be unfair for the provider to bear, or to continue
to bear, that burden, or
(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
bringing it to the attention of the persons who, in their opinion, are likely to be
affected by it.
(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
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.
(8) The recommended action may consist of one or more of the following—
(a) the carrying out of a review under section 34 (review of minimum
requirements),
(b) requiring contributions to be made in accordance with section 46 for
meeting some or all of that burden, and
(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
that—
(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
subsection (6).
(10) A procurement determination must be made in accordance with regulations
made by OFCOM.
(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
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
otherwise of the taking of other specified action.
In this subsection “specified” means specified in the direction.
(14) A direction under subsection (12) may not require OFCOM to make a
procurement determination at any time in the period of 10 years beginningPostal Services Act 2011 (c. 5)
Part 3 — Regulation of postal services
30
with the day on which this section comes into force unless the universal service
provider has agreed to the making of the determination.
46 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—
(a) postal operators providing services within the scope of the universal
postal service,
(b) users of services within the scope of the universal postal service (by
way of the charges paid by them).
(3) OFCOM may determine that the contributions under this section are to be
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
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
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—
(a) the scheme, and
(b) any fund set up for the purposes of the scheme,
to be administered by OFCOM or some other person specified in the
regulations.
(7) A person may be specified only if OFCOM are satisfied as to the person’s
independence of both—
(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
(b) a draft of the statutory instrument containing them has been laid
before, and approved by a resolution of, each House of Parliament.
47 Report on sharing mechanism
(1) This section applies where regulations under section 46 provide for a scheme
for the assessment, collection and distribution of contributions.Postal Services Act 2011 (c. 5)
Part 3 — Regulation of postal services
31
(2) OFCOM must prepare and publish a report setting out, in relation to the period
to which it applies—
(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
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
during that period.
(3) The first report under this section must be prepared in relation to the period of
12 months beginning with the coming into force of the first regulations made
under section 46.
(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—
(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
complete.
(6) OFCOM are not required under this section—
(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
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.
(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
48 Notification by postal operators
(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
sections 33 to 37 of the Communications Act 2003 (requirements to notify
before carrying on a regulated activity).