Contents
Summary
Chapter
1 - Introduction
Chapter
2 - Oftel's proposed policy
Chapter
3 - Consultation
Annex
1 - Oftel's draft statement
Annex
2 - Summary of the legal provisions
Summary
S1 This statement
invites comments on Oftel’s draft statement of policy on information
gathering under section 142 of the Communications Act 2003 ("the Act").
S2. Essentially
the draft statement of policy (Annex 1) follows a similar policy to
recent Oftel statements that have referred to information gathering
(see paragraph 2.1). In summary it is intended that Oftel will seek
all the information it needs to investigate a complaint, a dispute,
or own initiative investigation of a breach of condition, using its
formal powers under the Act. For other types of information requests
under the Act eg for statistical purposes and for market reviews, Oftel
hopes that these will be provided on a voluntary basis, but Oftel will
use formal powers if necessary.
S3 It is intended
to publish a final statement of policy by 25 July 2003. This statement
will be reviewed prior to powers under the Act being vested in Ofcom,
which will be towards the end of 2003.
Chapter
1
Introduction
1.1 Section numbers
of the Act as referred to in this consultation document and in the draft
statement (as shown in Annex 1 and Annex 2) are based on the section
numbers in the version of the Bill dated 5 March 2003. This version
of the Bill can be found on the DTI / DCMS Communications Bill website
(http://www.communicationsbill.gov.uk)
1.2 Ofcom will not
be in a position to assume its duties under the Act until late 2003
and therefore it
is anticipated at this stage that a commencement order will be passed
under Section 401 of the Act conferring Ofcom's powers under Chapter
1 of Part 2 of the Act on the Director General of Telecommunications.
1.3 The Act will
give Oftel wide powers to request information for the purpose ofcarrying
out its functions under Chapter 1 of Part 2 of the Act, with respect
to electronic communications networks and services. These powers are
consistent with EC Directives [the Framework Directive (2002/21/EC),
the Access Directive (2002/19/EC), the Authorisation Directive (2002/20/EC),
and the Universal Service Directive (2002/22/EC)]. Failure to comply
with an information requirement or providing false information, could
result in financial penalties being imposed by Oftel and/or criminal
proceedings.
1.4 Section 142
of the Act will place a duty on Oftel to publish and keep up-to-date
a statement of policy on how it will exercise its information-gathering
powers under section 132 and 133 and how it will use any information
obtained in exercise of those powers. When exercising its information-gathering
powers under sections 132 to 141, Oftel must have regard to this published
policy statement.
1.5 A draft statement
of policy under section 142 and a summary of the legal provisions are
shown in Annex 1 and Annex 2 respectively.
1.6 It remains the
Government’s firm intention that the EC Directives on Electronic Communications
Networks and Services should be implemented by the 25 July 2003 by the
provisions in the Communications Bill. However, as a contingency measure
the Government is current consulting on draft interim regulations to
be made under the European Communities Act 1972 (http://www.communicationsbill.gov.uk/pdf/Implementation_Con_Doc.pdf).
In relation to information gathering provisions the draft Electronic
Communication (Networks and Services) Regulations 2003 broadly mirror
the corresponding provisions under the Act. It is therefore Oftel’s
intention that the proposed statement of policy on information gathering
will still apply on 25 July 2003, even if the EC Directives are implemented
by interim regulations.
Chapter
2
Oftel’s proposed
policy
2.1 Oftel has
made previous statements of policy in respect of information gathering
in recent published statements:
2.2 In the first
two statements it was acknowledged that a wide range of information
is provided to Oftel by the telecoms industry on a voluntary basis,
which allows Oftel to maintain a complete statistical overview of UK
telecoms markets. However, the statement on data gathering for EU market
reviews stated that Oftel hopes that information will be provided on
a voluntary basis, but will consider using formal powers if necessary.
It was also stated that Oftel is conscious of the need to ensure that
the process of requesting information minimises the burden placed on
those from whom information is requested and that Oftel would seek to
avoid unnecessary duplication of information
requests.
2.3 In the statement
on dispute resolution under the new EC Directives it was stated that
to meet new deadlines Oftel will need to use its formal information
gathering powers more frequently. As a general rule Oftel will seek
all information that it needs to resolve a dispute using its formal
powers. The statement also stated that Oftel would be setting similar
challenging deadlines for investigating complaints and own-initiative
investigations.
2.4 The draft
statement of policy on information gathering under section 142 of the
Act therefore cross-refers to the recent Oftel statements above. In
conclusion it is intended that Oftel will seek all the information it
needs to investigate a complaint, a dispute, or own initiative investigation
of a breach of condition, using its formal powers under the Act. For
other types of information requests under the Act, Oftel hopes that
these will be provided on a voluntary basis, but Oftel
will use formal powers if necessary.
2.5 The draft statement
refers to Oftel’s standard practice to give a short period of time for
comments on a draft information request when formal powers are used.
In addition reference is made to section 135 of the Act that requires
formal information requests to be proportionate, describe the information
required, and to state reasons why the information is required.
2.6 Oftel’s
overriding concern is that all its policy and compliance decisions are
firmly based on evidence. The draft statement also reiterates that,
in order to minimise the burden on stakeholders and to ensure speed
of decision making, Oftel will use the full range of data available
in reaching decisions and will usually not duplicate requests for data
already held for another purpose, unless there is an overriding legal
obligation on it so to do. Where Oftel intends to rely on data gathered
for one purpose in relation to another purpose, it will specify this
in writing to the relevant stakeholder(s).
Chapter
3
Consultation
3.1 Oftel is
publishing this consultation document so that interested parties may
comment on the draft statement of policy on information gathering (Annex
1). The closing date for submitting comments is 20 June 2003 at 12 noon.
3.2 It is regretted
that this is a shorter deadline that the usual 12 week period allowed
for consultations, but this is necessary in order to publish a final
statement by 25 July 2003.
3.3 Where possible,
comments should be made in writing and sent by e-mail to michael.knowles@oftel.gov.uk
3.4 However,
copies may also be posted or faxed to the address below. If any interested
parties are unable to respond in one of these ways, they should contact
Michael Knowles
Oftel
50 Ludgate Hill
London
EC4M 7JJ
Tel: 020 7634 8938
Fax: 020 7634 8949
e-mail: michael.knowles@oftel.gov.uk
Further copies
of this document
3.5 This document
can be viewed in the Publications section of Oftel’s website at Paper
copies and alternative formats such as large print, Braille, disc and
audio cassette can be made available on request. Please contact Oftel’s
Research and Information Unit by phoning 020 7634 8761 or by sending
an e-mail to infocent@oftel.gov.uk.
Publication
of comments made by stakeholders
3.6 On this occasion,
Oftel is not programming a formal period during which interested parties
may comment on the responses made by others. Nevertheless, in the interests
of transparency, comments will be published, except where respondents
indicate that a response, or part of it, is confidential. Respondents
are therefore asked to separate out any confidential material into a
confidential annex which is clearly identified as containing confidential
material. Oftel will take steps to protect the confidentiality of all
such material from the moment that it is received at Oftel’s offices.
However, in the interests of transparency, respondents should avoid
applying confidential markings wherever possible.
3.7 Non confidential
responses can be viewed on Oftel’s website in the Publications section
under Responses to Oftel consultations. Comments can also be viewed
at Oftel’s Research and Information Unit. Appointments must be made
in advance (see contact details in paragraph
3.3).
e-mail
notifications
3.8 Oftel has
a free e-mail based mailing list to help people stay informed about
the work that Oftel is doing. Each time an Oftel document is published
and placed on Oftel’s website at www.oftel.gov.uk,
subscribers to the list receive an e-mail alert. To register, please
go to the What’s New section of the website and access the electronic
form.
Next
steps
3.9 Following
the completion of the consultation exercise, Oftel will publish a statement
setting out its conclusions and will publish a final statement of policy
on information gathering by 25 July 2003.
The
consultation criteria
3.10 Oftel considers
that this document meets the Cabinet Office code of practice on written
consultation documents. The code is reproduced below for convenience.
If you have any comments or complaints about this consultation process
please contact:
Oftel co-ordinator
for the code of practice:
Robert Jex
Oftel
50 Ludgate Hill
London EC4M 7JJ.
e-mail: rob.jex@oftel.gov.uk
Tel: 020 7634 5350
Fax: 020 7634 8940
3.11 Timing of
consultation should be built into the planning process for a policy
(including legislation) or service from the start, so that it has the
best prospect of improving the proposals concerned, and so that sufficient
time is left for it at each stage.
3.12 It should
be clear who is being consulted, about what questions, in what timescale
and for what purpose.
3.13 A consultation
document should be as simple and concise as possible. It should include
a summary, in two main pages at most, of the main questions it seeks
views on. It should make it as easy as possible for readers to respond,
make contact or complain.
3.14 Documents
should be made widely available, with the fullest use of electronic
means (though not to the exclusion of others), and effectively drawn
to the attention of all interested groups and individuals.
3.15 Sufficient
time should be allowed for considered responses from all groups with
an interest. 12 weeks should be the standard minimum period for consultation.
3.16 Responses
should be carefully and open-mindedly analysed, and the results made
widely available, with an account of the views expressed, and reasons
for decisions finally taken.
3.17 Departments
should monitor and evaluate consultations, designating a consultation
co-ordinator who will ensure that all the lessons are disseminated.
ANNEX
1
OFTEL’S DRAFT
STATEMENT OF POLICY ON INFORMATION GATHERING UNDER SECTION 142 OF THE
COMMUNICATIONS ACT 2003
Introduction
A1.1 By virtue
of [details of Commencement Order], the powers granted to Ofcom under
Part 2 of the Communications Act 2003 (the "Act") have been conferred
upon the Director General of Telecommunications (the "Director") for
a transitional period until such time as those provisions are commenced
for Ofcom.
A1.2 The Act
gives Oftel wide powers to request information for the purpose of carrying
out its functions under Chapter 1 of Part 2 of the Act (eg to investigate
breaches of conditions and to carry out market reviews) with respect
to electronic communications networks and services. Failure to comply
with an information requirement or providing false information, may
result in financial penalties being imposed by Oftel and/or criminal
proceedings.
A1.3 Section
142 of the Act places a duty on Oftel to publish and keep up-to-date
a statement of policy on how it will exercise its information-gathering
powers under section 132 and 133 and how it will use any information
obtained in exercise of those powers. When exercising its information
gathering powers under sections 132 to 141, Oftel must have regard to
this published policy statement.
A1.4 The purpose
of this statement is to set out Oftel’s statement of policy on the exercise
of information-gathering powers under section 132 and 133 of the Act.
A1.5 A summary
of the legal provisions is included in Annex 2. Neither this statement,
nor Annex 2, is intended to include a definitive interpretation of the
law; therefore reference should also be made to the text of the Act.
A1.6 This statement
follows similar policy on information gathering in Oftel’s previous
statements on its regular market information data collection process
(dated 23 July 2002), data gathering for EU market reviews (dated 19
September 2002), and on dispute resolution under the new EU Directives
(dated28 February 2003).
Oftel's
Policy
1.7 In carrying
out its functions under Chapter I of Part 2 of the Act Oftelneeds a
solid evidence base upon which to base its decisions. In order to meet
new deadlines Oftel will need to exercise its formal information gathering
powers more frequently. It is intended that, for casework, Oftel will
seek all the information that it needs to investigate a complaint or
own initiative investigation of a breach of condition, using its formal
powers under section 132 and 133. For disputes formal powers will be
used under section 188.
A1.8 For other
types of information requirements under the Act eg for statistical purposes
or to carry out a market review, Oftel hopes that information will be
provided on a voluntary basis and in particular that suppliers will
continue to contribute to its regular market information programme.
Oftel believes that there are benefits to suppliers in terms of efficient
and accurate decision making if a regularly updated and comprehensive
database is maintained. However, for these other types of information
requirements Oftel will use formal powers if necessary.
A1.9 If formal
powers are used Oftel’s standard practice is – and continues to be –
to send a draft of the information request and offer five working days
for comment on the relevance of the information sought, other relevant
data which may be available and the practicality of providing the information
in the given timescale. Oftel will then generally confirm or amend the
information request within two working days and would not normally expect
to agree to an extension to the deadline specified in the final request.
A1.10 As set
out in section 134(3), any formal demands made by Oftel must be proportionate
to the use to which it intends to put the information, and must describe
the information required and state the reasons why it is required. Unless
the demand is for the purpose of determining who is liable to a charge
under section 35 (in which case other appropriate methods may be used)
any demand must be set out in a notice and be served on the person from
whom the information is requested.
A1.11 Oftel holds
a significant amount of in-house information and collects a wide range
of data on various aspects of the industry. Wherever possible, Oftel
will draw from existing information sources, however, despite this comprehensive
evidence base there will remain specific areas where it is necessary
to collectadditional data.
A1.12 The uses
to which Oftel proposes to put information obtained under section 132
and 133, derives from the types of information requirements permitted
under those sections (as set out in paragraphs A2.2 and A2.3 below).
A1.13 However,
Oftel is conscious of the need to minimise the burden on stakeholders
and to ensure speed of decision-making. Oftel will therefore use the
full range of data available to it in reaching decisions and will usually
not duplicate requests for data already held for another purpose, unless
there is an overriding legal obligation on it so to do. Where Oftel
intends to rely on data gathered for one purpose in relation to another
purpose, it will specify this in writing to the relevant stakeholder(s).
Annex 2
Summary of the
legal provisions
Persons covered
by an information requirment
A2.1 Oftel may
require information, subject to limitations below, from the following
persons -
(a)a communications
provider;
(b) a person who
has been a communication provider;
(c) a person
who makes, or has made, any associated facilities available to others;
(d) a person,
other than a communications provider, to whom a universal service
condition applies or has applied;
(e) a person who
supplies electronic communications apparatus; and
(f) a person
not falling within the preceding paragraphs who appears to Oftel to
have information required by them for the purpose of carrying out
their functions under Chapter I of Part
2 of the Act.
Catagories
of information requirements
A2.2 Oftel may request information for any one
or more of the following
purposes -
(a) investigating
possible breaches of conditions or other requirements imposed under
Chapter 1 of Part 2 of the Act, or of the code, or of a transitional
scheme after the cessation of the application of the electronic communications
code;
(b) ascertaining
or verifying the amount of any administrative charge payable under
section 35, or of any financial contribution towards the cost of complying
with universal service obligations;
(c) ascertaining
whether a condition set under section 42 continues to be effective;
(d) designating
a universal service provider under section 63;
(e) carrying
out a review under sections 63 or 67;
(f) identifying
markets and carrying out market analyses for the purposes of Chapter
1 of Part 2 of the Act;
(g) assessing
whether any network access question has arisen which gives rise to
a duty under section 102 and considering any matter while exercising
that duty; and
(h) statistical
purposes connected with Oftel's functions under
Chapter 1 of Part 2 of the Act.
A2.3 Oftel may
also require communications providers and persons making available associated
facilities to provide Oftel with information necessary to enable Oftel:
(a) to carry out
comparative overviews of the quality and price of public electronic
communications services;
(b)for related
statistical purposes.
Limitations
on information requirements
A2.4 Oftel may
not use their powers to request information relating to a potential
breach of a general condition unless Oftel’s investigation is in response
to a complaint; they have reason to believe that a breach has occurred;
they have decided to investigate to see whether the condition is being
complied with; r the condition concerns sharing the burden of providing
a universal service.
A2.5 Any demands
made by Oftel must be proportionate to the use to which it intends to
put the information, and must describe the information required and
state the reasons why it is required. Unless the demand is for the purpose
of determining who is liable to a charge under section 35 (in which
case other appropriate methods may be used) any demand must be set out
in a notice and be served on the person from whom the information is
requested.
Notification
of contravention of information requests
A2.6 Where Oftel
has reasonable grounds to believe that a person is or has been in breach
of any requirement under section 132 or 133, they may notify that person
accordingly, and allow him a specified period of time (usually one month)
in which to make representations to Oftel, and to take steps to complywith
the notified requirement.
Penalties
for the contravention of information requirment
A2.7 Where a
notified provider has not complied with a requirement notified under
section 135, has not remedied the consequences of the notified contravention
and no proceedings for an offence under section 141 have been brought,
Oftel may impose a penalty. In deciding on the amount of a financialpenalty,
Oftel are required to consider whether the penalty is appropriate andproportionate,
and to take account of any representations made by the person concerned
and any steps taken by him to comply with the condition or restriction
in question. The maximum fine that may be imposed under this section
is £50,000. Secretary of State may by order amend this provision so
as to substitute a different maximum penalty.
Suspending
service provision for information contraventions
A2.8 Section
137 gives Oftel a power to suspend or restrict a person's entitlement
to provide electronic communications networks, electronic communications
services and/or associated facilities where Oftel is satisfied that
that person is in serious and repeated breach of any requirements imposed
on him under section 132 or 133, that the requirements are not requirementsimposed
for the purposes connected with the carrying out of Oftel's functions
in relation to SMP apparatus conditions and that an attempt by the imposition
of penalties under section 136 or the bringing of proceedings for an
offence undersection 141, to secure compliance has failed. The suspension
or restriction must be appropriate and proportionate to the seriousness
of the repeated contraventions.
A2.9 A direction
by Oftel under section 137 may suspend entitlement generally or in relation
to particular networks, services or facilities and may take effect indefinitely
or for a fixed period. Where Oftel exercise these powers, it must allow
the person in question to make representations to it and, if appropriate,
Oftel may revoke the suspension or restriction. A direction may also
include, where appropriate, conditions to protect the customers of the
contravening provider, including the payment
of compensation.
Suspending
apparatus supply for information contraventions
A2.10 Section
138 gives Oftel a power to suspend or restrict a person from supplying
electronic communications apparatus where Oftel is satisfied that that
the person is in serious and repeated breach of any requirement of Oftel
to provide information for the purpose of section 132, and that an attempt,
by the imposition of penalties under section 136 or the bringing of
proceedings for anoffence under section 141, to secure compliance has
failed. The suspension or restriction must be appropriate or proportionate
to the seriousness of the repeated contraventions.
A2.11 A direction
by Oftel under section 138 may require a person to cease supplying electronic
communications apparatus generally or in relation to
particular electronic
communications apparatus. The direction maytake effect indefinitely
or for a fixed period. A direction may also include, where appropriate,
conditions to protect the customers of the contravening supplier, including
the payment of compensation. When Oftel exercise these powers, it must
allow the person in question to make representations to it and, if appropriate,
Oftel may revoke the suspension or restriction.
Procedure
for directions suspending service provision/apparatus supply for information
contraventions
A.2.12 Under
section 139, unless the case is urgent, before exercising its powers
under sections 137 and 138, Oftel must notify a contravening provider
or supplier of the proposed direction, allow him at least one month
to make representations and consider each representation made by him.
The meaning of an urgent case is set out in section 139(4) and (5).
Such a case arises where there is a serious threat to public safety,
public health or national security or a serious economic or operational
problem that makes it inappropriate to give a contravening provider
or supplier time to make representations.
A2.13 If a case
is urgent, Oftel may give a direction without consulting the contravening
provider or supplier. However, as soon as practicable after giving a
direction in an urgent case, Oftel must provide the relevant contravening
provideror supplier with an opportunity to make representations and
to propose steps to remedy the contravention.
Enforcement
of directions suspending service provision/apparatus supply for information
contraventions
A2.13 Under section
140 it is an offence for any person to provide an electronic communications
network, an electronic communications service or an associated facility
while he is subject to a direction issued under section 137 suspending
his entitlement to do so or where he does so in contravention of any
restriction specified in the direction. It is also an offence for any
person to supply electronic communications apparatus while he is subject
to a direction issued under section 138 suspending his entitlement to
do so or where he does so in contravention of any restriction specified
in the direction. A person found guilty of either offence will be liable
to a fine.
Offences
in connection with information requirements
A2.14 Under section
141 it is an offence for any person to fail to provide information in
response to a demand from Oftel under section 132 or 133 and any such
person shall be liable to a fine. However, subsection (2) makes provision
for a defence where it is not possible for the recipient of a notice
toprovide the information within the period specified by Oftel but the
recipient has taken all reasonable steps to provide the information
after that period. No proceedings for this offence may be brought in
respect of failures for which Oftel has imposed a financial penalty
under section 136.
A2.15 It is also
an offence intentionally or recklessly to provide Oftel with any false
information in response to a request under section 132 or 133 and a
person guilty of this offence is liable to a fine and/or imprisonment.
Oftel's
power to require information in connection with dispute
A2.16 Section
188 gives Oftel powers to require parties to disputes and other persons
to provide them with information that enables Oftel to:
(a) decide whether
it should handle a dispute;
(b) determine
whether it needs to consult the regulatory authorities of other EU
Member States; and
(c) consider
and determine a dispute.
A2.17 Information
requested by Oftel must be provided within the period specified by Oftel.
Requests for information under section 188 may be enforced by Oftel
using the procedure set out in clauses 135 to 141 (paragraphs A2.6 to
A2.15 above).
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