A Draft direction issued by the Director General of Telecommunications

Contents

Summary

Chapter 1 Introduction

Chapter 2 The specific universal service condition on provision of call box services

Chapter 3 The terms of the proposed Direction

Chapter 4 How to make comments on the Direction and on this consultation document

Annex A Universal service obligation proposed for BT and Kingston: specific condition on provision of call box services

Annex B Proposed Notification and Direction on provision of call box services

Summary

S.1 The provision of Public Call Boxes ('PCBs') across the UK is a fundamental part of the UK’s Universal Service Obligations ('USO'). This consultation concerns proposals for a direction setting out clarification of the detail of the USO regarding PCBs to be imposed upon the designated providers of universal service in the UK.

S.2 Oftel recently published its proposal that British Telecommunications plc (‘BT’) and Kingston Communications (Hull) plc (‘Kingston’) should be designated as the universal service providers in the UK (see ‘Notification of proposals for the designation of universal service providers and the setting of conditions’, March 2003, available at: http://www.oftel.gov.uk/publications/eu_directives/2003/uso0303.htm).

S.3 That consultation contains a proposed specific universal service condition on the provision of call box services, which will ensure universal service with respect to PCBs in the UK (attached as Annex A). The proposed condition allows the Director General of Telecommunications (‘the Director’) to make a direction from time to time in respect of, amongst other things, the process to be followed prior to the removal of a PCB and the matters to be taken into account in considering a request for the installation of a PCB. This consultation seeks views on the Director’s proposal for such a direction, attached at Annex B (the ‘proposed Direction’) and also suggests that the proposed condition be reworded slightly.

S.4 The proposed Direction is intended to cover matters which are at present contained in the guidelines which BT and Kingston are currently obliged to publish from time to time under their licence conditions, and which set out in more detail the procedure behind the implementation of the USO.

S.5 The proposed Direction is similar in substance to the guidelines. The main differences are:

• Addition of a definition of ‘site’ – views are invited on the four options set out in this consultation document;
• Operators' ability to proceed with proposed removals where no objections from local bodies within a fixed period;
• Possible requirement on local bodies to give reasons for any objections made to removals; and
• Last PCB at a site to offer cash payment facilities.

S.6 A more comprehensive review of universal service with regard to PCBs is proposed as part of the general review of universal service that the Director is recommending should be carried out by Ofcom in 2004.

S.7 Oftel welcomes comments on any of the matters set out in this paper by 15 May 2003. For details on how to respond, see Chapter 4.

Chapter 1

Introduction

Universal Service and Payphones

1.1 Universal service is a concept fundamental to the regulation of telecoms in the UK. It means that basic telephone services should be available to everyone upon reasonable request and at an affordable price. These services are considered essential for everyone in current social and economic conditions, and include services that might not be provided by market forces alone. Regulatory obligations have therefore been created to ensure their provision.

1.2 BT and Kingston are the universal service providers (‘USPs’) under the current regulatory regime. BT’s universal service obligation (‘USO’) extends to the whole of the UK except Hull. Kingston’s USO covers the Hull area only.

1.3 As USPs, BT and Kingston are subject to a range of obligations, including that of providing public call boxes (‘PCBs’). PCBs are payphones situated on public land to which the public has unrestricted 24-hour access and are currently operated under an individual licence.

Existing payphones regime

1.4 The objective of the current regulatory regime is to ensure the adequate provision of PCBs throughout the UK. BT and Kingston must maintain an operational PCB service which, amongst other things, offers free emergency access, free access to operator service, and provides both directory enquiries and local and national calls at uniform prices across the UK.

1.5 Condition 42 of BT and Kingston’s licence does not explicitly set out an obligation of ensuring adequate provision of PCBs. Instead, it places an obligation on BT and Kingston to publish from time to time, following consultation with the Director, guidelines with regard to PCB installation and removal. Condition 42 addresses the universal service aspect of PCB provision by providing that BT and Kingston must install PCBs on request in accordance with the published guidelines except where it would be unreasonable to require them to do so. Further it provides that BT and Kingston may cease to provide call box services at PCBs only in accordance with the published guidelines.

1.6 BT published such guidelines in September 1997. These guidelines covered three key areas:

• Procedure for the removal and re-siting of PCBs (including the requirement to obtain the written consent of the local planning authority and, if appropriate, of the local parish council before the last PCB at a site could be removed);
• Installation of new PCBs on the ground of social need; and
• Provision of information to Oftel by BT regarding numbers of PCBs.

Oftel’s consultation on payphones

1.7 In 2001, Oftel undertook a review of regulation of payphones and published a consultation document raising a range of issues relating to payphones in November 2001. Oftel issued a statement in December 2002 summarising its conclusions following the consultation (see ‘Public Payphones’, 20 December 2002, available at http://www.oftel.gov.uk/publications/consumer/2002/payp1202.htm).

1.8 Broadly, Oftel concluded that, despite the rise in mobile phone ownership, there remains an important social need for payphones. Research has shown that a wide range of consumers, but especially those on low incomes, still rely on payphones. Although ownership of mobile phones has affected usage of PCBs, many mobile phone owners still use payphones for certain purposes e.g. if they run out of credit or when their battery is flat. Oftel’s statement therefore concluded that the current regulatory regime for payphones should continue for the time being.

1.9 Oftel’s statement included revised guidelines, which largely replicated the original guidelines published by BT but which made changes in two respects, for the purposes of clarifying and reinforcing the existing guidelines. First, the notice period during which interested groups could make representations was extended from 28 to 42 days. Second, the group from whom written consent must be obtained by BT/Kingston where removal/re-siting of the last PCB at a site is proposed was extended to community councils in Scotland and Wales (equivalent to parish councils in England), and where applicable to local community groups in Northern Ireland.

New regime

1.10 A new regulatory regime is required as a result of the four new EC Communications Directives, which came into force on 24 April 2002. These Directives require Member States to change the way that electronic communications networks and services are regulated from 25 July 2003.

1.11 In the UK, it is intended to implement the four new Directives through a new Communications Act. The Communications Bill was introduced into the House of Commons on 19 November 2002 and into the House of Lords on 5 March 2003. References to the Communications Bill in this document are references to the 5 March 2003 version, which is available at: http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldbills/041/03041.1-7.html#j4001. The Communications Bill may be subject to change as it proceeds through Parliament.

1.12 The Government has stated its intention that the Communications Bill should receive Royal Assent and commencement by 25 July 2003. If this is not possible, then the Government has said that implementation will need to occur by Statutory Instruments made under the European Communities Act 1972 for an interim period until the Bill enters into force. The DTI has recently published a consultation document on the draft Statutory Instruments, available at http://www.communicationsbill.gov.uk/pdf/Implementation_Con_Doc.pdf.

1.13 Irrespective of the implementing instrument (that is, either the Communications Act or Statutory Instruments), the proposed Direction in this consultation will have substantially the same content and effect.

Payphones under the new regime

Generally

1.14 Under the new regime, all types of payphones (including PCBs) will be regulated by the general conditions. A second draft of the proposed general conditions is currently subject to consultation along with the draft Statutory Instruments referred to in paragraph 1.12 above. The proposed general condition on payphones (condition 6, ‘Public Pay Telephones’) sets out obligations on providers of all types of public payphones, including PCBs. These requirements include the obligation to ensure that any end user can access operator assistance services, directory enquiries, and that certain key information is displayed in a notice on or around the payphone. Providers of PCBs must also meet requirements regarding access for people with disabilities.

Universal Service

1.15 In terms of the universal service aspect of payphone provision in the UK, under the new regime the Secretary of State will set out, by means of an Order (‘the Universal Service Order’), the extent to which certain services (including payphones) must be provided in order to ensure universal service. The Order will ensure the provision of universal service as described by the Universal Service Directive. Specific conditions of entitlement will then be set by the Director (or Ofcom) to impose these universal service obligations on designated providers.

1.16 Oftel has recently published a consultation document on its proposals for both designation and the obligations under specific universal service conditions (see ‘Notification of proposals for the designation of universal service providers and the setting of conditions, March 2003’). Oftel has proposed that BT and Kingston should be designated; however, other communications providers have also been invited to express interest in designation.

1.17 The consultation document proposes a specific universal service condition regarding the provision of call box services for both BT and Kingston (condition 3), and this is attached as Annex A. The effect of the proposed condition is discussed in further detail in Chapter 2.

Chapter 2

The specific universal service condition

The USO: adequate provision of PCBs

2.1 The proposed specific universal service condition regarding provision of call box services (the ‘proposed PCB condition’ – see Annex A) begins by explicitly stating the nature of the USO. Paragraph 3.1 refers to:

‘the adequate provision of PCBs and Call Box Services throughout the UK excluding Hull/ the Hull area (see note one below), in order to meet the reasonable needs of End Users in terms of geographical coverage, the number of PCBs and the quality of Call Box Services’.

Removal/re-siting of PCBs

2.2 The proposed PCB condition then outlines in paragraph 3.2 the basic regulatory safeguard regarding removal or re-siting of payphones, which serves to ensure that the USO of adequate provision is secured. At the moment, this refers to the need for the designated USP to obtain the written consent of certain bodies.

2.3 On further consideration, Oftel considers that the condition may need to be re-worded slightly. Instead of the need for consent, it is intended that local bodies would now have the opportunity to make written objections to any proposal for removal of the last PCB at a site. It is now intended that the proposed PCB condition be amended so as to prohibit a USP from removing or re-siting the last PCB at a site where it has received such a written objection.

2.4 Oftel considers that this proposed approach represents a proportionate balance between the legitimate interests of end-users in any local community and the legitimate interests of a USP. In particular, Oftel is concerned that requiring a USP to obtain written consent from every relevant local community organisation prior to removal or re-siting of certain PCBs represents an unnecessary burden on USPs.

2.5 The proposed change will provide that, if no written objections are received within a fixed period, the local bodies will be deemed to have given consent. This maintains the ability of local bodies to prevent removals but allows the USP to proceed where these local bodies, for whatever reason, have not objected.

2.6 The precise procedure regarding the proposed removals of PCBs, and the reasoning behind that procedure, are discussed more fully in Chapter 3.

Installation of PCBs

2.7 Paragraph 3.3 of the proposed PCB condition also provides that the USP must consider any request for the installation of new PCBs where it receives one. Under the current regime, BT and Oftel have agreed evaluation criteria for the installation of new PCBs across the UK where there is a social need for them (see Chapter 3 of Oftel’s statement on Public Payphones, 20 December 2002).

2.8 The onus on requesting installation of a new PCB in those circumstances rests with the individual local authorities. Paragraph 3.3 of the proposed PCB condition seeks to preserve a similar arrangement by requiring the USP to consider any such request in accordance with any criteria set out in a relevant direction made under paragraph 3.4.

Detail of implementing the USO

2.9 Paragraph 3.4 of the proposed PCB condition gives a description of the kind of information that the Director might include in a direction to be issued from time to time. This includes information regarding the subject matter of the first three paragraphs of the condition (ie, the adequate provision, removal/re-siting and installation of PCBs), and any other matter relating to BT/Kingston’s obligations in those respects. The proposed PCB condition accordingly gives the Director discretion to make provisions in each of these areas.

2.10 The following chapter explains the terms of the proposed Direction at Annex B.

Note:

1. The specific universal service condition proposed for BT reads, 'throughout the UK (excluding the Hull area)'; the condition proposed for the kingston reads 'throughout the Hull area'.

Chapter 3

The Terms of the Direction

3.1 The text of the proposed Direction is attached as Annex B. It has been drafted so as to refer to ‘the Director’. It is probable that in due course such references will need to be revised to refer to ‘Ofcom’.

Why have a Direction?

3.2 There are two main reasons why the details of the universal service obligations on providers of PCBs are included in a direction rather than in the specific condition on Call Box Services.

3.3 First, the use of a direction ensures that the proposed PCB condition (described in Chapter 2) is kept clear, simple and easily intelligible, while the lengthier procedural and definitional points are dealt with elsewhere.

3.4 Second, the use of a direction ensures flexibility, enabling the Director in the first instance, and Ofcom once it is fully operational, to make directions on the provision/removal/installation of PCBs according to social need, which may be influenced by changing patterns of usage and market conditions. (It should be noted that any future or amending directions will be subject to consultation).

3.5 This flexible approach to implementing the USO reflects that of the existing guidelines. It is also consistent with the relevant regulatory principles set out in the Oftel’s Consumer Protection Policy Review Guidelines, and in its Regulatory Option Appraisal Statement, by allowing for the minimum regulation necessary in each case and aiming for a light regulatory touch where possible.

3.6 The proposed Direction will be legally binding on the designated USPs. This provides a more certain framework for the regulation of payphones than the existing system, which relies upon publication of guidelines by BT and Kingston.

3.7 Oftel considers that the level and substance of regulation contained in the proposed Direction is justified by the need to ensure adequate provision of PCBs across the UK in accordance with the USO. The terms of the proposed Direction aim to ensure that the regulatory procedures regarding the removal and installation of PCBs are efficient, transparent, objective and non-discriminatory.

Substance of the Direction

Adequate Provision

3.8 Under the current regulatory system, the USO does not specify which PCBs within BT/Kingston’s network are ‘universal service PCBs’. Instead, the USO is met by ensuring that there are regulatory safeguards in place to protect the provision of PCB sites is protected by imposing obligations on operators where they propose to remove or re-site the last PCB at a site.

3.9 Under the new regime, paragraph 3.1 of the proposed PCB condition clearly describes the obligation on USPs to ensure adequate provision of PCBs across the UK (see Annex A).

3.10 Oftel does not consider that it is necessary at this stage to elaborate further on this requirement in the proposed Direction. Oftel considers that the proposed restrictions upon removal/re-siting and provisions regarding installation contained in the proposed Direction will ensure that adequate provision is maintained. The proposed Direction therefore does not elaborate upon the meaning of ‘adequate provision’, although subsequent directions may do so, should the regulator feel this is necessary.

3.11 Oftel considers that consideration of the substance of the obligation of PCB provision should be addressed as part of the comprehensive review of universal service that is recommended for 2004.

Removal or re-siting of PCBs

3.12 Paragraph 3.2 of the proposed PCB condition sets out the basic obligation on USPs regarding removal or re-siting of PCBs. Paragraph 3.2(b) refers to a direction that will elaborate upon this obligation. Paragraphs 2.1 – 2.5 of the proposed Direction do this by laying out in detail the procedure to be followed by the USPs where they propose to remove or re-site the last PCB at a site. The procedure set out in the proposed Direction is explained further below.

Definition of a ‘site’

3.13 The controls over removal and re-siting only apply where the USP proposes to remove or re-site the last PCB at a ‘site’. It is therefore critical to determine whether or not the PCB that is proposed for removal/re-siting is part of an existing site. For this reason, Oftel proposes to define, in the PCB condition and in the proposed Direction, what is meant by a ‘site’.

3.14 In line with its policy of appraising the regulatory options, Oftel has identified a range of possible options for defining a site, all based on distance, and an examination of these various options is set out below. Oftel welcomes views on the options described below.

3.15 In considering the distances identified below, it is important to look at the overall benefits to society, in terms of social and economic inclusion, and not simply the benefits to individual end-users. 

Option 1: adjacent - within a walking distance of 10 metres

3.16 This option effectively defines ‘site’ to cover a situation where there is a bank or suite of PCBs within a very short distance of one another, and almost certainly within visibility of each other. It has the advantage of ensuring access for all types of consumer to call box services, particularly less mobile consumers who cannot walk far to access an alternative PCB. However, it is obviously fairly restrictive to USPs. It also raises the question of whether the premise on which it is based, namely that as a general rule consumers would not be prepared and/or able to use another PCB slightly further away, is in fact correct.

Option 2: within a walking distance of 50 metres

3.17 This option assumes that a reasonable distance for a ‘site’ is one where some walking may be required to the next PCB, but not much: effectively, where the next PCB is ‘just down the road’, and still likely to be within sight. Oftel considers that this option represents a realistic distance in terms of the needs of most if not all consumers, since even less mobile consumers may be able to cover such a distance. However, Oftel acknowledges that this option offers less flexibility to operators. The more onerous the obligation on the operator, the less able the operator is to re-site PCBs into areas that need them most.

Option 3: within a walking distance of 200 metres

3.18 This option extends the area covered by a ‘site’ further, but still to within a relatively short distance. This distance is likely to be walkable for the average user, such that another PCB at the ‘site’ would still represent a realistic alternative. In addition, this option is not unduly burdensome on operators in terms of the provision of PCBs. However, it stretches the concept of ‘site’ to an area that requires the consumer to walk some distance between PCBs, which could be problematic for less mobile users, for example the elderly or people with disabilities.

Option 4: within a walking distance of 800 metres

3.19 This option assumes that a PCB within about half a mile of another PCB would form a ‘site’. Oftel estimates that this option would represent about 10 minutes’ walking time for the average user. This option assumes that the need for payphones is such that PCBs need not be particularly proximate, and that consumers would be prepared to walk a considerable distance in order to access a PCB if they so desired.

Relevant Considerations regarding the Options

3.20 Distance can obviously be measured in various ways. The options above are based on walking distance, which refers to the distance in metres that a consumer would need to cover in order to get from one PCB to the other. This ‘walking distance’, when measured in metres, may be more than the ‘as the crow flies’ distance, for example if there are buildings, roads or other obstacles which hinder a more direct route to the next PCB. Walking distance is also relevant to users that are less mobile, for example the elderly or people with disabilities. Oftel therefore considers that it is the most practical way of measuring distance for the purposes of defining a PCB ‘site’.

3.21 It is also important to note that the definition of a site only concerns the ability of BT/Kingston to remove PCBs without consent, and has nothing to do with the appropriate density or coverage of PCBs across the UK. Oftel remains committed to the USO of ensuring adequate provision and coverage of PCBs across the UK, and it is intended that this issue will be re-addressed in the review of universal service that has been recommended for 2004.

3.22 It is Oftel’s view that the definition of ‘site’ is likely to be a lesser rather than greater distance. Oftel does not consider that a walking distance of 800 metres could be acceptable for a site. However, respondents are encouraged to express views on any of the four options outlined above.

Procedure for removing the last PCB at a site

3.23 Paragraphs 2.1 - 2.5 of the proposed Direction set out the process to be followed by the USPs where they propose to remove the last PCB at a site. The proposed process is similar to the provisions of the guidelines on removal and re-siting of PCBs, as published in revised form in Oftel’s statement on Public Payphones of 20 December 2002. It consists of both the requirement to write to the parties set out in the proposed Direction (as well as in the PCB condition) and the possibility for interested parties to make representations regarding the removal/re-siting.

Power of local bodies to object to the proposed removal

3.24 Paragraph 2.3 of the proposed Direction sets out the bodies to whom the USP must write where they propose to remove the last PCB at a site. As noted in Chapter 2, the current draft of the PCB condition in Oftel’s consultation document (see Annex A) refers to written consent, but it is intended that this wording will be amended in line with the policy set out below.

3.25 It is proposed that the PCB condition and the proposed Direction should require the USP to write to the local planning authority, and where applicable to the local parish council in England, the local community council in Scotland and Wales and appropriate local community groups in Northern Ireland, giving them the opportunity to make written objections regarding the proposed removal/re-siting of the last PCB at a site. As explained in Chapter 2 above, while this basic obligation is set out in the proposed PCB condition, it is intended that the proposed Direction should elaborate further on the exact procedure to be followed.

3.26 The proposed Direction provides that the USP should give notice in writing of its proposal for removal/re-siting to the bodies set out in paragraph 2.3. Where, having made all reasonable efforts to do so, the USP is unable to contact the local parish council (in the case of a removal in England), the local community council (in the case of a removal in Scotland), or any appropriate local community groups (in the case of Northern Ireland), the draft Direction provides that the USP may ask the local planning authority to forward the notice of its proposal to the relevant local body or bodies (paragraph 2.4). This may be the case where, for example, the USP has made concerted efforts to obtain the address information for the relevant local body, but has been unable to do so.

3.27 Written objections should be made by any of the bodies in paragraph 2.3 to the relevant USP within a fixed 42-day period. If the USP receives any such written objections within that period, it will not be able to carry out the proposed removal/re-siting (paragraph 2.5). This procedure is effectively the same as the one under the current guidelines, since it gives prescribed local bodies the power to prevent the proposed removal/re-siting by the USP of the last PCB at a site.

3.28 If the USP does not receive written objections from the local authority (and/or any other of the bodies described in paragraph 2.3) during that period (see note two below), it will be able to carry out its proposed removal/re-siting. This is a slight variation on the current procedure, in that it maintains the ability of local bodies to prevent removals, but allows the USP to proceed where these local bodies, for whatever reason, have not objected.

3.29 The issue has been raised as to whether a local authority (and/or parish council etc) should provide reasons in the event that it makes written objections to the proposed removal or re-siting of a PCB at a site. Since local bodies effectively have the ability to prevent proposed removals of the last PCB a site, it may be appropriate for there to be a corresponding obligation on such bodies to give reasons in relation to the exercise of that power. The provision of reasons may also enable a more constructive dialogue between the USP and local bodies on the proposals.

3.30 Oftel therefore invites interested parties to express views on whether or not reasons should be provided by local bodies in the event that they make written objections to a proposed removal or re-siting of the last PCB at a site.

3.31 At present, no appeals procedure applies in relation to removals. The introduction of such a system would be a significant change to current practice. Oftel recommends that this issue be considered as part of next year’s proposed substantive review of the USO in relation to PCBs.

Representations

3.32 As with the existing guidelines, the proposed Direction provides that the USP must display a notice on the PCB that it proposes to remove/re-site, informing the public of the proposal and giving details of how representations may be made (paragraph 2.2). Representations may be made to either the local planning authority, the local parish council in England, the local community council in Scotland and Wales, and to, appropriate local community groups in Northern Ireland.

3.33 The notice must specify that interested parties have 42 days to make representations. The USP must consider all representation made to it during that period and is not allowed to remove or re-site a PCB under any circumstances until the representation period has closed.

3.34 Where any of the local bodies listed in paragraph 2.3 of the proposed Direction above considers that the USP has not followed the procedure for removal or re-siting of a PCB (as set out in paragraphs 2.1-2.5 of the proposed Direction) correctly, it may make representations to the Director. The Director may then investigate the matter as part of the standard procedure for enforcement of a condition, which is provided for in clauses 91 to 101 of the Communications Bill.

Payment options for last PCB at a site

3.35 Finally, the proposed Direction specifies that the last PCB at a site must offer cash payment facilities (paragraph 2.6). This is a slight modification to the existing obligation. In the existing guidelines, the last PCB at any site must offer both coin and card payment (‘multi-payment’) options. Since phonecards are no longer available, there no longer seems to be any need to require multi-payment options, only to ensure that payment by cash is always possible at the last PCB at a site.

3.36 Oftel considers that this proposal is proportionate and objectively justifiable, particularly in light of the fact that all BT payphones currently offer reverse charge, chargecard and incoming call facilities (except in the very limited circumstances where incoming calls are barred, for example following requests by the police), and many offer credit card facilities.

Installation of new PCBs

3.37 Paragraph 3.3 of the proposed PCB condition confers an obligation on the USP to consider requests for new PCBs in accordance with any criteria set out in any direction made.

3.38 Paragraphs 2.7-2.9 of the proposed Direction therefore address in more detail the conditions under which installation of new PCBs may take place. Paragraph 2.8 sets out the evaluation criteria to be used by USPs when considering a request. The criteria are the same as that under the existing regime. The evaluation criteria score each request according to the following three elements:

• the size of the community in the area not served by existing PCBs;
• the type of accommodation in the area – whether private owner occupier, private rented or social housing; and
• the walking distance to an existing PCB.

3.39 Where the community which is not served by an existing PCB is large, where the accommodation is predominantly social housing or private rented, and where there is a long distance to walk to an existing PCB (more than 15 minutes), then a request for the siting of a new PCB on the ground of social need is more likely to be granted. Social or privately rented houses are more likely not to have a fixed line telephone than privately owned houses.

3.40 References in the criteria to walking times are taken to be references to average walking times taken by an adult walking at an average walking pace. Oftel does not consider it necessary to be more definitive in this regard.

3.41 The substance, practicality and effectiveness of the agreement and the evaluation criteria will be examined again as part of the review of universal service that is recommended to take place in 2004.

Conclusion

3.42 Oftel considers that the regulatory procedure for removal and installation of PCBs, as discussed above and as set out in the proposed Direction, is objectively justified by the need to uphold the USO of ensuring adequate provision of PCBs across the UK. It seeks to balance the interests of stakeholders such as local authorities and end users against those of the USP so as not to discriminate against any particular group of society.

3.43 Oftel considers that the proposed Direction is proportionate to the USO of ensuring adequate provision of PCBs across the UK. On the one hand, it provides a certain level of regulation regarding installation and removal of PCBs, as is necessary to ensure that the requisite numbers of PCBs are retained in the areas where they are needed most. At the same time, the proposed Direction contains certain mechanisms to enable the USPs to operate their network of PCBs from a practical point of view without imposing an unduly heavy regulatory burden (for example, the provision that the UPS can proceed with a proposed removal where, having notified the relevant local body or bodies, it has not received any written objections from local bodies during the 42 day period).

3.44 The proposed Direction aims to set out the regulatory procedure regarding installation and removal of PCBs in a transparent and easily intelligible manner, so that all stakeholders are aware of the regulatory processes that should apply.

3.45 Oftel therefore considers that the proposed Direction passes the tests set out in Clause 46(2) of the Communications Bill in that its terms are objectively justifiable, not unduly discriminatory, proportionate and transparent.

3.46 In summary, Oftel invites views from interested parties on the following issues:

• the terms of the proposed Direction;
• the definition of a ‘site’ to be included in the proposed Direction and in the proposed PCB condition; and
• whether there should be an obligation on local bodies to give reasons for any objection to the proposed removal/re-siting of the last PCB at a site.

3.47 Respondents should refer to the contact details provided in the following chapter.

Note:

2. For the purposes of the 42 day period, under section 7 of the Interpretation Act 1978, notice is deemed to be given at the time at which the letter would be delivered in the ordinary course of post. 

How to make comments on the Direction

4.1 Oftel welcomes any comments from interested parties on the issues outlined in this consultation paper.

4.2 The closing date for such expression of interests and other comments is 15 May 2003. Bearing in mind that the EC Directives must be implemented by 25 July 2003, it has, unfortunately, not been possible on this occasion to allow a longer consultation period. However, this closing date satisfies the requirements of the Electronic Communications (Universal Service) Regulations 2003 which state that the period for expressions of interest or other representations about the proposals must be not less than one month.

4.3 Where possible, comments and any comments-on-comments should be made in writing and sent by e-mail to the address given below. 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 discuss alternatives with the Oftel manager named below:

Dave Parsons
Oftel
50 Ludgate Hill
London
EC4M 7JJ

Tel: 020 7634 8746
Fax: 020 7634 8893

e-mail: david.parsons@oftel.gov.uk

Further copies of this document

4.4 Paper copies of this document, 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

4.5 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, all non-confidential comments and comments-on-comments, will be published. Respondents should 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.

4.6 Non confidential responses can be viewed on Oftel’s website in the Publications section under Responses to Oftel consultations. They can also be viewed at Oftel’s Research and Information Unit. Appointments must be made in advance by phoning 020 7634 8761 or sending an e-mail to infocent@oftel.gov.uk.

e-mail notifications

4.7 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.

Annex A

Universal service obligation proposed for BT (see note two below)

Condition 3 on provision of call box services

3.1 BT shall ensure the adequate provision of Public Call Boxes and Call Box Services throughout the UK (excluding the Hull Area) in order to meet the reasonable needs of End-Users in terms of geographical coverage, the number of Public Call Boxes and the quality of Call Box Services, and in accordance with any relevant direction made under paragraph 3.4.

3.2 BT shall not remove or re-site any of its Public Call Boxes, and/or cease to provide Call Box Services, where such removal, re-siting or cessation of provision would result in the complete removal of Public Call Boxes and/or Call Box Services from a site (see note three below), except where:

(a) it has received the consent (see note four below) (in writing) of the local planning authority and, where applicable:

i.in the case of England, the local parish council,
ii. in the case of Scotland and Wales, the local community council,
iii. in the case of Northern Ireland, any appropriate local community groups; and

(b) it complies with any relevant direction made under paragraph 3.4.

3.3 Where BT has received a request for the provision of a new Public Call Box and related Call Box Services in order to meet the reasonable needs of a local community, BT shall consider such a request in accordance with any criteria set out in any relevant direction made under paragraph 3.4.

3.4 For the purposes of this Condition, the Director may from time to time make a direction specifying:

(a) the geographical coverage of Public Call Boxes, the number of Public Call Boxes and the quality of Call Box Services required to meet the reasonable needs of End-Users;

(b) the process to be followed prior to the removal or re-siting of a Public Call Box or the cessation of any Call Box Services;

(c) the matters to be taken into account in considering a request received under paragraph 3.3; or

(d) any other matter relating to BT’s obligations under paragraphs 3.1, 3.2 and 3.3.

3.5 Unless the Director consents otherwise, BT shall provide Call Box Services on the basis of uniform prices throughout the UK except for the Hull area.

Notes:

2. Note that, in the recent consultation document http://www.oftel.gov.uk/publications/eu_directives/2003/uso0303.htm#Part3, Oftel proposed that a similar obligation be imposed on Kingston as a designated USP.
3. Note that this will become a defined term as a result of this consultation: see the discussion at paragraphs 3.13-3.22 of the consultation document.
4. Note that, as set out at paragraphs 3.24-3.28 of the consultation document, Oftel is proposing that this be amended so as to prevent a removal or re-siting unless no relevant objection has been received.

Annex B

Notification and Proposed Direction

Notification under clause 46(4) of the Communications Bill (see note five below) and regulation 18(4) of the draft Electronic Communications (Networks and Services) Regulations 2003 (see note six below) of a Draft Direction given under proposed Universal Service Condition 3 to be imposed on British Telecommunications plc (‘BT’) and Kingston Communications (Hull) plc (‘Kingston’) which was set out in a Notification given by the Director on 10 March 2003 pursuant to the Electronic Communications (Universal Service) Regulations 2003

1. The Director General of Telecommunications (the ‘Director’), in accordance with Clause 46(4) of the Communications Bill (‘the Bill’) and regulation 18(4) of the draft Electronic Communications (Networks and Services) Regulations 2003 (‘the draft Networks and Services Regulations’), hereby makes the following proposals for a Direction to be given under paragraph 3.4 of proposed Universal Service Condition 3 (the ‘Condition’) to be imposed on British Telecommunications plc (‘BT’) and Kingston Communications (Hull) plc (‘Kingston’). The Condition was set out in a Notification given by the Director on 10 March 20003 pursuant to the Electronic Communications (Universal Service) Regulations 2003 (‘the Universal Service Regulations’).

2. The draft Direction is set out in the Schedule to this Notification.

3. The effect of the draft Direction is set out in the accompanying consultation document.

4. The reasons for making the proposal for the Direction are set out in the accompanying consultation document.

5. Representations may be made to the Director about the proposed draft Direction by 15 May 2003.

6. Unless otherwise indicated, words and phrases in this Direction shall have the same meaning as in the Bill, the draft Networks and Services Regulations, the Universal Service Regulations or the Condition as appropriate.

DAVID ALBERT EDMONDS

DIRECTOR GENERAL OF TELECOMMUNICATIONS

Notes:

5. As introduced to the House of Lords on 5 March 2003, available at http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldbills/041/03041.1-7.html#j4001.
6. Currently subject to consultation, available at http://www.communicationsbill.gov.uk/pdf/Implementation_Con_Doc_AnnexD.pdf.

Schedule

[Draft] (see note seven below) Direction given under Condition 3 imposed on BT and Kingston as a universal service condition pursuant to [section 42 of the Communications Act 2003/ regulation 14 of the Electronic Communications (Networks and Services) Regulations 2003] (see note eight below)

Whereas:

(A) Following a notification (the ‘Notification’) given by the Director General for Telecommunications (‘the Director’) on 15 April 2003 (see note nine below) under Regulation 4(10) of the Electronic Communications (Universal Service) Regulations 2003 (the ‘Universal Service Regulations’) confirming proposals to designate British Telecommunications plc (‘BT’) and Kingston Communications (Hull) plc (‘Kingston’) as universal service providers, BT and Kingston were so designated on 25 July 2003 pursuant to [paragraph 5(1) of Schedule 18 to the Communications Act 2003 (‘the Act’) / paragraph 3 of Schedule 2 to the Electronic Communications (Networks and Services) Regulations 2003 (‘the Networks and Services Regulations’)] (see note ten below);

(B) The Notification also confirmed proposals for universal service conditions to be imposed on BT and Kingston including Condition 3 (‘Provision of Call Box Services’) (the ‘Condition’). Pursuant to [paragraph 5(2) of Schedule 18 to the Act / paragraph 3 of Schedule 2 to the Networks and Services Regulations] (see note eleven below), Condition 3 was imposed upon BT and Kingston on 25 July 2003;

(C) Paragraph 3.4 of the Condition provides, inter alia, that for the purposes of the Condition, the Director may from time to time make a direction specifying:

i. the process to be followed prior to the removal or re-siting of a Public Call Box or the cessation of any Call Box Services; and

ii. the matters to be taken into account in considering a request received under paragraph 3.3 of the Condition for the provision of a new Public Call Box and related Call Box Services in order to meet the reasonable needs of a local community;

(D) This Direction is given pursuant to paragraph 3.4 of the Condition and relates to the matters specified in paragraph (C) above (which fall within sub-paragraphs (b) and (c) of paragraph 3.4 of the Condition);

(D) For the reasons set out in the Statement accompanying this Direction the Director is satisfied that this Direction is:

• objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates;
• not such as to discriminate unduly against particular persons or against a particular description of persons;
• proportionate to what it is intended to achieve; and
• in relation to what it is intended to achieve, transparent.

(E) For the reasons set out in the Statement accompanying this Direction the Director is satisfied that he has acted in accordance with the relevant duties set out in [Section 4 of the Act / Regulation 4 of the Networks and Services Regulations] (see note twelve below);

(F) A notification of a proposal to give this Direction was given in accordance with [Section 46(4 and 5) of the Act / Regulation 18(4) and (5) of the Networks and Services Regulations] (see note thirteen below) on 15 April 2003;

(G) The Director has considered every representation made to him within the specified consultation period in making this Direction and these representations are discussed in Chapter [x] of the Statement accompanying this Direction;

THEREFORE:

Pursuant to Condition 3 the Director makes the following Direction:

Part 1: Definitions and Interpretation

1.1. For the purpose of interpreting this Direction the following definitions shall apply:

1.2. Except insofar as the context otherwise requires, words or expressions shall have the meaning assigned to them and otherwise any word or expression shall have the same meaning as it has in the [the Act / the Networks and Services Regulations] (see note fifteen below), the Universal Service Regulations or the Condition as appropriate.

1.3. The Interpretation Act 1978 shall apply as if this Direction were an Act of Parliament.

1.4. Headings and titles shall be disregarded.

Part 2: The Direction

Complete Removal of Public Call Boxes/Call Box Services

2.1 The USP shall not remove or re-site any of its Public Call Boxes, and/or cease to provide Call Box Services, where such removal, re-siting or cessation of provision would result in the complete removal of Public Call Boxes and/or Call Box Services from a Site, unless the requirements set out in paragraphs 2.2 – 2.5 of this Direction have been satisfied.

2.2 The USP shall display a notice in a prominent place on the Public Call Box which it proposes to remove or re-site and/or to which it intends to cease to provide Call Box Services informing the public of the proposed change and setting out-

(a) the nature and effect of the proposal;
(b) the period within which members of the public may make representations about the proposal which shall be 42 days after the day on which the notice is first displayed;
(c) the bodies to whom representations may be made about the proposal which shall be any of the following -

(i) the local planning authority;
(ii) in the case of England, the local parish council;
(iii) in the case of Scotland and Wales, the local community council;
(iv) in the case of Northern Ireland, any appropriate local community groups,

and the USP shall not bring its proposal into effect unless it has considered all representations made to it in relation to the proposal within the period specified in sub-paragraph (b).

2.3. The USP shall give notice of its proposed removal, re-siting or cessation of provision to the local planning authority and -

(a) in the case of England, the local parish council,
(b) in the case of Scotland and Wales, the local community council,
(c) in the case of Northern Ireland, any appropriate local community groups,

setting out the nature and effect of the proposal and that objections may be made by the bodies to whom the notice has been given.

2.4. Where, having made all reasonable efforts to do so, the USP is unable to contact any of the bodies listed in sub-paragraphs (a), (b) or (c) of paragraph 2.3, the USP may ask the local planning authority to forward the notice of its proposal to the relevant body or bodies.

2.5 The USP shall not bring its proposal into effect if it has received any written objection to the proposal by any of the bodies listed in paragraph 2.3 within the period ending 42 days after the day on which notice was given. Any objection given must state that it is an objection to the proposal.

Cash Payment

2.6 The USP shall ensure that, where there is only one Public Call Box providing Call Box Services at a Site, that Public Call Box will offer cash payment facilities.

Request for New Public Call Boxes

2.7 The matters that the USP should take into account in considering a request received under paragraph 3.3 of the Condition are as follows -

(i) the size of the community which is said to require the provision of a new Public Call Box and related Call Box Services;
(ii) the quality of housing existing in the community in sub-paragraph (i); and
(iii) the distance from an existing Site to the proposed new Site.

2.8 In relation to each of the matters specified in paragraph 2.7 the USP shall allocate a score to the proposal as appropriate by reference to each of the three matters set out in paragraph 12 and shall decide whether or not to grant the request on the basis of the total score. The available scores are as follows-

2.9 Where the total score is ten or more the USP shall grant the request for a new Public Call Box and related Call Box Services. Except in exceptional circumstances where the total score is eight or less the USP shall not grant the request. Where the total score is nine the USP shall give due consideration to the request and shall grant the request if appropriate.

David Albert Edmonds

Director General of Telecommunications

Notes:

7. Note that this will be omitted in final Direction.
8. Note that the wording to be used in the final Direction will be dependent upon which of the Communications Act or the Networks and Services Regulations first enters into force.
9. Note that this will be the date of publication of the Director's final statement following the consultation 'Notification of proposals for the designation of universal service providers and the setting of conditions', 12 March 2003, see http://www.oftel.gov.uk/publications/eu_directives/2003/uso0303.htm .
10. As for footnote 8.
11. As for footnote 8.
12. As for footnote 8.
13. As for footnote 8.
14. Note that the proposal to designate BT and Kingston as universal service providers is currently subject to consultation: see http://www.oftel.gov.uk/publications/eu_directives/2003/uso0303.htm.
As for footnote 8.
15. As for footnote 8.