Contents

Summary

Chapter 1 Introduction

Chapter 2 Discussion of the general responses received

Chapter 3 Discussion of the final version of each condition

Annex A Schedule to the Electronic Communications (General Conditions) Regulations 2003

Annex B General Conditions to be set under section 42 of the Communications Act 2003

Annex C List of respondents to first and second consultations

Summary

S.1 This statement concerns the replacement of the current licensing regime for telecommunications companies with a new approach based on a general authorisation to offer electronic communications networks and services. This change is required to implement the new EC Directives. The implementation date for the new regime is 25 July 2003.

S.2 The four new EC Communications Directives entered into force on 24 April 2002 and require the repeal of the current licensing regime for telecommunications systems in the UK under the Telecommunications Act 1984. The key change is that the need to obtain a ‘licence’ prior to operating a telecommunication system is to be replaced by a ‘general authorisation’ to provide electronic communications networks and services.

S.3 This change of approach is a deregulatory measure. It is accompanied by a reduction in the number of obligations placed upon those who currently operate under a telecommunications licence. Conditions in licences are to be replaced by a combination of general conditions applicable to all communications providers (or all communications providers of a particular type) and specific conditions to be set and applied to specific communications providers, for example where they have significant market power or have universal service obligations.

S.4 The types of general and specific conditions which may be imposed on communications providers are strictly limited by the terms of the new Directives. The annex to the new Authorisation Directive in particular provides a maximum list of general conditions which may be attached to a general authorisation, the right to use radio frequencies and the right to use numbers. This statement sets out Oftel’s final drafts of the general conditions to be imposed upon providers of electronic communications networks and electronic communications services under the new Directives.

S.5 It is intended that a new Communications Act will implement the new Directives (note that references in this document to the Communications Bill are references to the Bill, as amended in Committee in the House of Lords on 5th June 2003, available at www.publications.parliament.uk/pa/cm200203/cmbills/055/2003055.htm). The Communications Bill is currently progressing through the parliamentary process. It is not certain whether that process will be completed by 25 July 2003. Accordingly, there is the need to ensure that no gap in regulation occurs in the event that the Bill does not achieve Royal Assent in time for it to enter into force on 25 July 2003. Hence statutory instruments using powers from the European Communities Act 1972 have been drafted by the Department for Trade and Industry (DTI) in order to ensure implementation of the new Directives for any period between 25 July 2003 and the entry into force of the new Communications Act.

S.6 Given the continued uncertainty with respect to the implementing instrument for the new Directives in the UK, it is necessary for Oftel to publish its plans for the general conditions under both a potential Communications Act and a statutory instrument. Annex A to this Statement sets out the general conditions which will apply in the event that the new Directives are implemented via statutory instrument. Annex B to this Statement sets out the general conditions which will apply in the event that the new Directives are implemented via the Communications Act.

S.7 The proposed general conditions at annexes A and B to this statement have been drafted to apply appropriate regulation reflecting the obligations required by the new EC Directives as closely as possible, and have been subject to two rounds of consultation over the past year. Stakeholders are advised to read this statement in conjunction with the consultation documents issued by Oftel in the first and second rounds of consultations (links to these documents can be found on the following page). Those documents contain further details of the policy behind and legal basis for each condition.

S.8 Consistent with the objective of appropriate regulation, it is clear that the general authorisation coupled with one set of general rules represents a major clarification and simplification of the existing regime for the benefit of both communication providers and consumers.

Chapter 1

Introduction

1.1 This statement sets out Oftel’s final views on the general conditions of entitlement to apply to communications providers from 25 July 2003. Drafts of the general conditions have been subject to two previous consultations.

The previous consultations on general conditions of entitlement

1.2 In May 2002, Oftel published a consultation document setting out its initial proposals for a set of general conditions to apply to communications providers upon implementation of the new EC Communications Directives from 25 July 2003 (‘the first consultation’). As set out in the first consultation, the new EC Communications Directives require that licences for the running of telecommunications systems be replaced by a general authorisation to provide electronic communications networks and services. The general authorisation may be subject to general and specific conditions of entitlement. The general conditions are intended to apply to all communications providers, or to identified classes of communications provider. Specific conditions will be imposed on individual communications providers, for example as a result of a finding of significant market power or designation as a universal service provider.

1.3 The first consultation document can be found at www.oftel.gov.uk/publications/licensing/2002/enti0502.htm. The first consultation document contains further information on the scope of the new EC Directives, the nature of the general authorisation, and the approach that has been taken to drafting the general conditions.

1.4 In March 2003, the DTI and Oftel issued a joint consultation setting out a contingency plan for the interim implementation of the EC Directives with effect from 25 July 2003 should the Communications Bill not have received Royal Assent in sufficient time (‘the second consultation’). This consultation included further drafts of the general conditions, updated in response to the comments received as a result of the first consultation. The second consultation can be found at www.communicationsbill.gov.uk/Interim_Implementation_update.htm. Annexes A to C of the second consultation are relevant to the proposed general conditions.

1.5 The second consultation set out two sets of draft general conditions. The proposed conditions set out in the Schedule to the draft Electronic Communications (General Conditions) Regulations were those intended to apply from 25 July 2003 in the event that the new EC Directives will be initially implemented by statutory instruments. For transparency, a corresponding version of the draft general conditions to apply upon entry into force of the Communications Act was annexed to the second consultation document, along with a Notification required under clause 45(2) of the Communications Bill. Following the second consultation, the two sets of general conditions have been finalised, and can be found at annex A (the Statutory Instrument (‘SI’) version) and annex B (the Communications Bill version) to this statement. Implementation of the general conditions is discussed in more detail below.

Who must comply with the general conditions?

1.6 The first and second consultation documents set out considerable guidance on the application of the general conditions which Oftel does not propose to repeat here. Oftel has published targeted guidance for service providers and ISPs at www.oftel.gov.uk/publications/eu_directives/2003/spfaq0503.htm and www.oftel.gov.uk/publications/eu_directives/2003/ispfaq0303.htm respectively. The following table, which provides a breakdown of the application of each proposed general condition, and an example of who is likely to be caught by it, has been updated following the second consultation. Note in particular that the conditions have been renumbered following the deletion of certain conditions.

Implementation of the General Conditions: why are there two versions?

1.7 The new EC Communications Directives must be implemented in the UK by 25 July 2003, which will herald a new regime of communications regulation. It is intended that a new Communications Act will achieve implementation of the Directives. The Communications Bill is currently progressing through the parliamentary process. It is currently not certain whether that process will be completed by 25 July 2003. Accordingly, there is the need to ensure that no gap in regulation occurs in the event that the Bill does not achieve Royal Assent in time for it to enter into force on 25 July 2003. Hence the statutory instruments which were the subject of the second consultation have been drafted in order to ensure implementation of the new Directives for any period between 25 July 2003 and the entry into force of the new Communications Act. For the purposes of this Statement, this potential gap is referred to as the ‘interim regime’. Regulation to be applied pursuant to the Communications Act is referred to as the ‘Communications Bill regime.’

1.8 Shortly before 25 July 2003, the Government will decide whether the Communications Act is likely to be in place by 25 July 2003, or whether it is necessary to make the statutory instruments implementing the new Directives for the interim regime. In the latter case, the general conditions will, as set out in the second consultation, be contained in a Schedule to the Electronic Communications (General Conditions) Regulations 2003, which will be commenced to take effect from 25 July 2003 (see annex A). The Director will not formally set the general conditions – they will exist as secondary legislation on the face of the Regulations.

1.9 This is in contrast to the position if it is decided that the Communications Act will be ready by 25 July 2003, and hence the interim regime is unnecessary. In this case, the Director will be given the power to set the general conditions under the Act from 25 July 2003. It is anticipated that, on 25 July 2003, the Director will formally publish a Notification under section 45(1) of the Act setting the general conditions to apply from that date. The conditions themselves will be set out in an Annex to the Notification (see annex B). Note that references to sections of the Act in the general conditions at annex B may be liable to change until the Communications Bill is finalised. References to clauses in the Communications Bill should be read as including, where appropriate, the corresponding regulations in the statutory instruments the subject of the second consultation.

1.10 In the first and second consultations, the Communications Bill version of the general conditions assumed that Ofcom would be responsible for the administration and enforcement of the general conditions. However it is now clear that, in the event that the Communications Bill enters into force on 25 July 2003, there will be a short period where the Director will act under the Communications Act prior to the official 'hand-over’ to Ofcom. As discussed above, the conditions will be set by the Director under the Communications Act, and will refer to the Director as the relevant authority. Hence the Communications Bill version of the general conditions at annex B no longer refers to ‘Ofcom’.

1.11 There are differences in the draft conditions depending on whether they are proposed to apply in the interim regime or the Communications Bill regime, which arise from the limitations on the scope of statutory instruments (SIs) made under the European Communities Act 1972 (ECA). This was explained in some detail in the second consultation document and Oftel does not propose to repeat this explanation here. Oftel notes that in the SI version of the general conditions at annex A, blank spaces appear in the definitions of ‘National Telephone Numbering Plan’, ‘Functional Specification’ and ‘Metering and Billing Direction’. The date of publication of each of these documents (intended to be shortly after the publication of this Statement) is to be inserted into the SI prior to it being formally made, should this be necessary, in mid July.

Chapter 2

Discussion of the general responses received

2.1 Most of the general conditions have been amended following the first and second consultations as a result of the responses received, amendments to the Communications Bill and the need to accurately and succinctly reflect current policy. Amendments to and comments received on each condition are discussed in more detail in the following chapter. Oftel notes in particular that the structure of the general conditions, in terms of the sequence in which they will appear, has changed in this final version.

2.2 The responses received to the first consultation were dealt with in the second consultation document, and hence Oftel does not intend to repeat that analysis here. Oftel has confined its comments in this document to the responses received to the second consultation. However, the views set out in this document should be seen as adding to those set out in the first and second consultations in respect of each condition.

2.3 In general, the responses to the second consultation did not seek to open any major issues of policy, but rather focussed on the drafting of the conditions themselves. The Operator’s Group, in particular, submitted a detailed response on many points of drafting, which Oftel has considered in drafting this final statement. Part of the justification given by the Operator’s Group for making such a detailed response is the potential implications of clause 101 of the Communications Bill.

2.4 Clause 101 of the Communications Bill imposes a civil liability on communications providers to comply with conditions set by Ofcom (or the Director). This means that a person affected by a breach of a condition may, with Ofcom or the Director’s consent, be able to sue the communications provider directly in court. The Operator’s Group expressed concern that this provision exposes communications providers to significant liability, in that conditions could effectively be ‘enforced’ through the courts by private action, rather than by the Director or Ofcom taking enforcement action via standard processes. For this reason, the Operator’s Group sought to make a significant number of drafting amendments to the General Conditions so as to make explicitly clear their scope and application.

2.5 Oftel is not convinced that the introduction of clause 101 places communications providers at any greater risk should they breach one of their obligations. This is because there are a number of restrictions within clause 101 itself which would prevent a communications provider being sued by an individual for breach of a general condition:

Definitions

2.6 The Operator’s Group made a number of suggested amendments to definitions used in the conditions which are drawn from those used in either the Electronic Communications (Networks and Services) SI or the Communications Bill. Oftel is of the view that definitions of such terms must follow those in the related legislation in order to ensure consistency of application and for transparency. This applies to the following defined terms raised in the Operator’s Group response:

• "Content Service";
• "Customers";
• "Electronic Communications Service";
• "End-User";
• "Interconnection";
• "Public Electronic Communications Service"; and
• "Disaster".

2.7 Oftel has amended all relevant definitions to the extent that they used to refer to, for example, ‘the Network’ or ‘that Service’. In all cases, the word has been amended to appear entirely in lower case. This maintains consistency between definitions used in both the General Conditions and other statutory instruments, and is not, in Oftel’s opinion, liable to lead to confusion in legal interpretation.

2.8 The Operator’s Group also suggested amendments to the following terms:

• "Directory": Oftel is not proposing to amend this definition as suggested, in that it does not think that the fact that a Directory must be provided "on request" should influence the definition of a Directory.
• "Directory Information": Oftel agrees with the Operator’s Group suggestion, and has amended the definition so as to remove the word "may" and instead to read "in the case of a Directory Enquiry Facility shall be either the Telephone Number of the Subscriber or information that the Telephone Number of the Subscriber may not be supplied".
• "Network Termination Point": Oftel does not agree that the definition is confusing; rather it adds clarity to the location of the network termination point, from the regulator’s point of view, on ‘served premises’. Oftel considers that this is allowable by virtue of Recital 6 to the Universal Service Directive, which sets out the ability of the NRA to define the location of the network termination point. Oftel also notes that this formulation reflects the definition of network termination point currently used in telecommunications licences.
• "Network Termination and Testing Apparatus": Oftel agrees with the amendment suggested by the Operator’s Group and has added the word "and" after part (b) to confirm that all three criteria apply for the purposes of this definition to be applicable.
• "Public Pay Telephone": Oftel does not propose to amend the definition as it reflects the definition used in the Universal Service Directive, which Oftel would prefer to keep for consistency and transparency.

The General Interpretation Section

2.9 Given Oftel’s intention, as set out above, to align the definition of terms used in the General Conditions with those in the Communications Bill or Interim SIs, there is no need for a specific clause setting out which definition will take precedence in the event of a conflict (as suggested by the Operator’s Group). Neither is a ‘gender neutral’ or ‘future proof’ clause required, as the Interpretation Act 1978, which specifically applies to the general conditions, already achieves the result sought by the suggestions of the Operator’s Group.

Chapter 3

Discussion of the final version of each condition

3.1 This chapter outlines the responses received, and Oftel’s subsequent comments, in relation to each condition subject to the second consultation. Selected extracts from named respondents have been included in each case but these are not necessarily exhaustive. It is important to note that all the matters that were raised in the consultation process were considered as the final versions of the general conditions were being prepared and many of the suggestions have been implemented. Some minor changes and amendments that include corrections and formatting have been made but are not detailed in this statement.

3.2 Oftel is satisfied that the final versions of the conditions set out at annexes A and B meet the test set out in clause 44 of the Communications Bill in that each condition is objectively justifiable, not unduly discriminatory, proportionate and transparent. How each condition meets these requirements was explained in both the first and second consultation documents, and is discussed further, where appropriate, in respect of each condition below. Note that references to clauses in each of the following headings are a reference to the clause which enables the imposition of the relevant condition.

Condition 1: General Access and Interconnection Obligations (clause 48(1)(b))

Responses

3.3 The Operator’s Group objected to the drafting of paragraph 1.1 of Condition 1 on the basis that it placed an emphasis on the conclusion of an agreement following negotiations for interconnection, whereas in their view the obligation itself should relate only to the negotiations themselves. The Operator’s Group also suggested that paragraph 1.2 be deleted in its entirety on the basis that confidentiality terms should be agreed commercially between the Communications Providers themselves, as is the usual case in the majority of commercial negotiations. If it is to be retained, the Operator’s Group suggested it be substantially re-drafted so as to make it more transparent.

3.4 The Operator’s Group also suggested minor amendments to paragraph 1.3 (namely, to specify that only functions ‘under the Act’ are referred to) and 1.4 (namely that the words ‘For the purposes of this Condition’ should replace ‘In this Condition’) of Condition 1.

Oftel’s comments

3.5 Oftel has not amended Condition 1 in line with the Operator’s Group response, save as set out below. The current draft of paragraph 1.1 requires providers of public electronic communications networks to negotiate ‘with a view to concluding an agreement’. In Oftel’s view, this appropriately puts emphasis on the conclusion of negotiations in that it requires those providers to negotiate in good faith, rather than simply ‘negotiate’ without more for an indefinite period.

3.6 The drafting of paragraph 1.2 is drawn from Article 4(3) of the Access Directive, which the UK is required to implement. Oftel does not agree that its terms lack clarity or transparency, and for the purposes of consistency, would prefer to retain the wording used in the Directive. In Oftel’s view, references to ‘departments’ in this paragraph are to internal departments of the communications provider; and references to ‘competitive advantage’ should be read as meaning an unfair advantage over competitors to the communications provider. Neither does Oftel agree that it is necessary to specify, in paragraph 1.3, that the functions referred to are those ‘under the Act.’ The Director (or Ofcom) will only be able to require information formally in pursuance of statutory functions.

3.7 Oftel agrees with the replacement of "In this Condition" with "For the purposes of this Condition", and has tracked this amendment through in each instance that these terms appear in each Condition. Oftel has also amended paragraph 1.4 so as to clarify the broader application of paragraph 1.2 (in relation to network access negotiations) over paragraph 1.1 (which only applies to interconnection negotiations).

Condition 2: Standardisation and Specified Interfaces (clause 48(1)(b) and (g))

3.8 As explained in the second consultation document, this condition will look different under the Interim SI regime as compared to the Communications Bill regime.

Responses

3.9 The Operator’s Group suggested that paragraph 2.1 be amended to ensure that the Communications Provider is only required to comply with those standards which are applicable to what it is actually doing, for example, by inserting "relevant" between "any" and "standards" on the first line. T-Mobile made a similar suggestion regarding the need to clarify that only mandatory standards need be complied with. The Operator’s Group also suggested that it is important to clarify what "adopted" means in this context.

3.10 In relation to the Communications Bill version of Condition 2 (which includes additional paragraphs), the Operator’s Group suggested that paragraph 2.3 include the word "reasonably" before "specified by Ofcom" in the first sentence. They were also concerned that paragraph 2.4 gives the regulator the ability to consider standards outside the already broad definition of standards defined in paragraphs 2.1 to 2.3.

3.11 In paragraph 2.5, the Operator’s Group were concerned about the potential for argument over what is deemed to be "available" in part (b), and suggested the tightening of this text for the sake of certainty, by adding the words at the end "upon reasonable request". Further, the Operator’s Group suggested that paragraph 2.6 be separated in the text.

3.12 The UK MANs Managers Group (which co-ordinates the activities of regional research and education networks) objected to the drafting of General Condition 2 in so far as the requirement to conform to standards and specifications is not relevant for private networks except in so far that they may interconnect to public communications services. They also sought further clarity as to the intention behind the drafting of paragraph 2.5(b).

Oftel’s comments

3.13 Oftel agrees that paragraph 2.1 need only refer to ‘relevant, compulsory’ standards, and has amended the Condition accordingly. The paragraph has also been amended to reflect the European Commission’s published list of compulsory and voluntary standards in accordance with Article 17 of the Framework Directive (as opposed to any other standards published in the Official Journal). However, Oftel does not agree that ‘adopted’ is unclear in this context, as it captures the need for there to be a formal process of approval undertaken by any standards organisation in relation to any particular standard. Oftel has also resisted the inclusion of the word ‘reasonably’ in any of the Conditions which relate to the exercise of the Director’s functions, as the Director is always required to act reasonably. Further, a consultation process is specifically required by the Interim SIs or the Communications Bill prior to a direction being made, which would allow stakeholders to comment on any proposal.

3.14 Oftel does agree, however, that the standards referred to in paragraph 2.4 should be limited to those set out in the preceding paragraphs, and has amended this condition accordingly. Oftel has also amended paragraph 2.5 in line with the Operator’s Group response, as it is not intended that this condition should imply any obligation to interconnect. Oftel has not, however, amended paragraph 2.6, as it did not seem necessary.

3.15 Oftel has considered the UK MANs response, but remains of the view that even private networks connected to public networks can affect the end to end interoperability achieved by end users. Oftel remains of the view that uniform standards should be encouraged across the industry, and notes that, in practice, this obligation is only likely to require the UK MANs to take account of voluntary standards, which is appropriate and proportionate. In particular, Oftel does not intend that this condition should prevent an organisation from providing any services or technical interfaces it chooses, as long as the relevant standards are taken into account. Oftel has made a minor amendment to paragraph 2.5(b) in response to the UK MANs suggestion, which should help clarify the application of this provision.

Condition 3: Proper and Effective Functioning of the Network (clause 48(1)(c))

Responses

3.16 The Operator’s Group questioned the application of this Condition only to fixed communications providers, rather than across the industry. They also suggested that the words "to the greatest extent possible" in paragraph 3.1, and paragraph 3.2 in its entirety, be deleted, on the basis that they are disproportionate. In particular they were concerned that the words "based on objective criteria agreed in advance" are vague.

Oftel’s comments

3.17 Article 23 of the Universal Service Directive only requires this obligation to apply to the provision of networks and services ‘at fixed locations.’ Oftel is not seeking here to impose regulation beyond that required by the Directives. Oftel acknowledges the important role that mobile communications undoubtedly play in the national infrastructure, and is encouraged by the voluntary steps taken by mobile providers to ensure similar levels of network integrity, but notes the importance of balancing this with the burden on stakeholders that an extension of the Directive obligation would represent.

3.18 Further, the Condition only requires relevant communications providers to take all "reasonably practicable steps to maintain, to the greatest extent possible ...". Recognising the need for guidance on what this means in the current licence (which contains the same wording), Oftel published such guidance in 2002 following lengthy Industry and public consultation (see www.oftel.gov.uk/publications/ind_guidelines/guid1002.htm). The existing obligation has not proven to be overly burdensome, and Oftel remains of the view that neither will be the new obligation. Oftel is likely to be publishing similar guidance on this General Condition in due course which should address these concerns.

3.19 Oftel continues to consider that the inclusion of paragraph 3.2 is essential for ensuring that communications providers do not use the requirements of condition 3.1 as a basis for discriminatory or disproportionate behaviour. This is not speculative, as there have, in Oftel’s view, been examples of network operators attempting to use the requirements of the existing Licence Condition 20 in this way in the past (for example to argue against co-location arrangements for local loop unbundling). The wording of Condition 3.2 very much mirrors the existing licence Condition 20.6. Condition 20.6 has not been found to create an onerous administrative burden or to trigger significant disputes about what such criteria should be. Recognising the need for guidance on the criteria mentioned in Condition 20.6, Oftel published such guidance in 2002 following lengthy Industry and public consultation. This guidance is available at www.oftel.gov.uk/publications/ind_guidelines/crit1002.htm, and is expected to be rolled forward into the new regime.

Condition 4: Emergency Call Numbers (clause 48(1)(a))

Response

3.20 The Operator’s Group was of the view that the definition of the term "Emergency Organisation" is broader than is suitable for its use in Condition 4, in that the definition suggests that Ofcom or the Director will be able to direct which additional services are accessible using 999/112 numbers. They suggested amending the definition of Emergency Organisation so that only the 999 Liaison Committee has the ability to allow other services to use the 999/112 code. Additionally, they objected to the definition of "Pay Telephone", and the deletion of paragraph 4.3 from Condition 4 as it appeared in the first consultation. They also queried the reference to "999 and 112", as opposed to "999 or 112".

3.21 T-Mobile also queried the obligation to provide caller location information to emergency call numbers in order to help the Emergency Organisations carry out their duties in circumstances where Emergency Organisations are currently unable to accept and use this additional information.

3.22 An individual suggested that access to 999 and 112 is not, at present, guaranteed where a consumer’s telephone has been programmed to dial an indirect access code at the start of each call.

Oftel’s comments

3.23 While Oftel recognises the important work carried out by the 999 Liaison Committee, it remains the case that this Committee does not have legal standing. It is foreseeable, in Oftel’s view, that the regulator may need to require, perhaps at short notice, that 999 and 112 calls be passed to a ‘new’ emergency organisation. For example, if the police, fire and ambulance services created a merged emergency response organisation; or if a ‘mountain rescue’ body was created as a national, public emergency organisation. Oftel notes that any such direction under this condition must be subject to consultation, which would provide stakeholders with a reasonable opportunity to comment on any such proposals.

3.24 Oftel has, in line with the Operator’s Group suggestion, added a fuller definition of ‘Pay Telephone’. However, Oftel does not consider it necessary to reinstate previous paragraph 4.3. Oftel remains of the view that, where services have been fully withdrawn, there will no longer be a ‘Communications Provider’ doing anything for the purposes of this Condition. They will not be providing publicly available telephone services, hence the obligation does not come into play. The category of end user is irrelevant in this context. Oftel further notes that the condition, in previous drafts, has never referred to "999 or 112" – access via both numbers must be ensured.

3.25 While Oftel is aware that some network operators have not sufficiently upgraded their systems so as to allow for calling line identification (CLI) information to be passed electronically, it remains of the view that such information must be available to the emergency organisations (even where the information must be passed verbally). Oftel is continuing to work with the industry to address this issue, but has not amended this Condition given that it implements a requirement of the Universal Service Directive.

3.26 Oftel notes that the physical re-programming of telephones by end users is liable to create certain anomalies in terms of network functioning. Oftel is of the view that end users should be aware of and take responsibility for this risk in taking action that is likely to alter physically the way their telephone operates. Use of either a permanent carrier pre-selection service or ‘smart box’ supplied by an indirect access provider will ensure that 999 and 112 calls made from the relevant telephone are directed to emergency organisations as required.

Condition 5: Emergency Planning (clause 48(1)(e))

Responses from Operator’s Group

3.27 The Operator’s Group suggested that paragraph 5.1 be subject to the criteria in paragraph 5.2 and 5.3, and that the notification requirement in paragraph 5.1(b) was made "in writing" to the Communications Provider. They also suggested amending paragraph 5.2 for additional clarity.

3.28 In paragraph 5.3, the Operator’s Group were of the view that it is unclear as to where the cost recovery can come from, and that communications providers should be entitled to seek the security of an indemnity from parties other than the party for whom the arrangements are being made (eg a parent company).

Oftel’s comments

3.29 Both paragraphs 5.1 and 5.2 are subject to paragraph 5.3, and Oftel has amended the condition accordingly. In relation to any direction under paragraph 5.1(b), Oftel notes that such a direction will always be in writing and subject to consultation. Oftel has therefore deleted the reference to ‘notifying’ the communications provider, on the basis that any such direction would be communicated in draft and final form to the communications provider in the normal way. Oftel disagrees that paragraph 5.2 requires amendment for additional clarity.

3.30 Paragraph 5.3 is intended, in part (a), to allow for the recovery of costs. It is not intended to restrict such recovery from particular persons, but allow the communications provider flexibility in seeking to recover costs (for example, from government departments, or the totality of the communications provider’s customers). Oftel does not agree that the amendment suggested by the Operator’s Group is appropriate or an improvement. In respect of paragraph 5.3(b), it is Oftel’s view that emergency planning arrangements will only be implemented for and at the request of the emergency organisations (or other government departments). This paragraph is intended to allow for an indemnity to be sought from these organisations (although private arrangements are of course not prevented). Oftel therefore does not agree with the Operator’s Group proposal to amend this paragraph.

Condition 6: Public Pay Telephones (clause 48(1)(a))

Responses

3.31 The Operator’s Group suggested that the exception paragraph 6.1 should be connected with the term ‘and/or’ rather than just ‘and’; similarly they questioned the transparency of the wording "rendered inaccessible".

3.32 In part (b) of paragraph 6.3, the Operator’s Group suggested that the words "in the development and provision of such telephones" are superfluous and confusing, and thought that communications providers should only be required to consult with Ofcom on "significant or material changes to design where the interests of disabled persons are likely to be affected". They also suggested that it would be appropriate for the communications provider to have the opportunity to discuss the existing and new provisions with the Director or Ofcom prior to a direction being issued requiring the communications provider to provide certain facilities in part (c). The Operator’s Group also suggested minor amendments to part (d) for clarity.

3.33 The definition of "Hull Area" was also objected to by the Operator’s Group, on the basis that it is inappropriate following the revocation of licences.

3.34 The RNIB were of the view that this condition remains inadequate, in that it excludes "managed payphones" and lays down no access obligations in respect of visually impaired people.

Oftel’s comments

3.35 Oftel is of the view that the drafting of paragraph 6.1 should remain with the exception for debt management having two compulsory components: that the phone is not a public call box, and that the relevant facility is barred for the purpose of debt management. The policy objective of this provision is to assist providers of public payphones on private land, whose payphone equipment may not have the capacity to charge correctly for directory enquiry numbers, to bar directory enquiry numbers for the purposes of debt management. This exemption is in practice only likely to have relevance for public payphones provided in, for example, pubs and clubs, rather than ‘managed payphones’ on private land (eg in shopping malls). This is because managed payphones are capable of providing at least one directory enquiries number that can be correctly charged for, and hence a debt management problem will not arise.

3.36 Oftel does not agree that the wording suggested by the Operator’s Group to amend paragraph 6.1 is an improvement on current drafting. Oftel is of the view that 'to render inaccessible’ does in fact imply control of action by the communications provider.

3.37 Oftel is satisfied that the current wording of paragraph 6.3(b) reflects current policy, and therefore has not changed it. However, Oftel agrees that the other amendments to this paragraph suggested by the Operator’s Group seem to strike a fair balance between the interests of the communications provider and the interests of the disabled user and are an improvement on the previous draft. The Condition has been amended accordingly.

3.38 Oftel would wish to consult more widely on the suggestions made by RNIB, potentially as part of a focussed discussion on their particular suggestions rather than bundling these in with the general implementation consultation. Oftel suggests that Ofcom addresses the RNIB’s concerns within the wider universal service review scheduled for next year.

3.39 In respect of the definition of the ‘Hull area’, Oftel remains of the view that this definition ensures that the current regulatory regime, which sets different obligations for payphone provision in Hull as opposed to the rest of the UK, is maintained as transparently as possible. Oftel is currently working with the industry on creating a new definition for the new regime, however this work has not been concluded in time for such a new definition to be included in this Condition.

Condition 7 (SI / interim regime version only): Consumer Interest Bodies (clause 48(1)(a)

Responses

3.40 SACOT have suggested that a similar obligation is included in the Communications Bill conditions requiring Communications Providers to give due consideration to any advice received from the Consumer Panel.

Oftel’s comments

3.41 Oftel is of the view that the functions and remit of the Consumer Panel are entirely addressed by the Communications Bill. Oftel does not proposed to insert an additional obligation upon communications providers under the Communications Bill regime at this stage.

Condition 7 (Bill): Must-Carry Obligations (clause 61)

Response from NTL

3.42 NTL were concerned that the definition of "Appropriate Network" for the purposes of Condition 7 incorporate this qualification ‘subject to subsection 8’, as set out in the Communications Bill. They also pointed out a typographical error regarding reference to the Bill’s provisions.

3.43 RNIB were disappointed that no steps have been taken to use the General Conditions to impose obligations which would lead to the immediate availability of "open" audio description on all platforms and subsequent availability of closed audio description as well. In their view, at the very least, in the current iteration of the Conditions, it must be made clear that Condition 7.1 refers not only to public service broadcasting but also to the conveyance of signals for audio description, sub-titling and accessible programme guides.

Oftel’s comments

3.44 As the definition of 'Appropriate Network' in the Condition refers to the definition in the Communications Bill, Oftel is of the view that it is automatically subject to 'subsection 8'. Oftel has checked and updated references to section numbers.

3.45 Must-carry policy is determined by the Departure for Culture, Media and Sport (DCMS) to whom RNIB’s comments have been forwarded (a copy has also been forwarded to Ofcom). DCMS fully understands the need to ensure that, where a channel has to be offered on a network or on a satellite service, any viewing aids that relate to that channel are also carried. But audio-description is just one form of ancillary service and, as is clear from subsection (6) of clauses 268 and 269, the Communications Bill already provides for the "must offer" obligations to encompass ancillary services as well as the main "must offer" channels to which they relate. Given Ofcom’s general duty (under clause 3(3)(i)) to take into account the needs of persons with disabilities, DCMS feels that, whilst it has every sympathy with the concern to which the RNIB response relates, it is one for which the Bill already makes sufficient provision. With regard to electronic programme guides, Ofcom, when drawing up its code on EPGs, will be required to give guidance on the incorporation of such features as they consider appropriate for securing that persons with sight, hearing or dual impairment are able to make full use of these guides and are informed about whatever assistance for disabled people is provided in relation to the programmes listed.

Condition 8: Operator Assistance, Directories and Directory Enquiry Facilities (clause 48(1)(a))

Responses

3.46 The Operator’s Group suggested various clarifications to this Condition so as to ensure that international directory enquiry facilities are not inadvertently covered, and so as to clarify the operation of the obligations in this Condition with those in Condition 6. They also suggested that paragraph 8.5 be deleted.

3.47 BT suggested that a definition of Telephone Number specific to Condition 8 is needed to restrict the definition to Telephone Numbers which have been allocated to Subscribers for the purpose of their use of Publicly Available Telephone Services, given the otherwise extremely broad definition of Telephone Number.

3.48 BT was further of the view the intention of Article 5.1(a) of the Universal Service Directive, insofar as it refers to approval of the form of a Directory, is that the relevant authority should approve the form of the Directory Information contained therein ie the alphabetical listing of subscribers, and not any other aspect of a Directory. They suggested that amendments be made accordingly, as well as other amendments to the definitions of "Directory" and "Directory Information".

3.49 BT also requested clarification from Oftel on how it envisages the new requirement to include information on mobile subscribers in local area directories working in practice.

Oftel’s comments

3.50 Oftel does not expect communications providers to provide an international directory enquiry facility by default, and has amended the Condition and the definitions of "Directory" so as to clarify that these facilities need only contain information on UK subscribers. The definition of "Directory Information" has also been amended so as to clarify that it only refers to telephone numbers assigned to subscribers for their use of publicly available telephone services.

3.51 Although Article 25(5) of the Universal Service Directive makes specific reference to data protection legislation, Oftel is content to delete the reference to specific rights from paragraph 8.5, although notes that the provisions of the relevant data protection legislation still impact on the operation of the Condition as a whole.

3.52 Article 5 of the Universal Service Directive requires 'at least one comprehensive directory (be) available to end-users in a form approved by the relevant authority'. In Oftel’s view, this is more appropriately implemented by the current draft condition 8.3 rather than BT's proposal.

3.53 Oftel recognises the difficulties associated with mobile directory information data, and Oftel is content to discuss the issues surrounding the inclusion of mobile directory information data with stakeholders. However, Oftel intends to maintain the current drafting of the Condition as it accords with the wording and intention of the Universal Service Directive.

Condition 9: Requirement to Offer Contracts with Minimum Terms (clause 48(1)(a)

Responses

3.54 The Operator’s Group have suggested various amendments to paragraphs 9.1 and 9.2 of this Condition so as to improve its clarity. They also suggested that 9.3 be deleted, or otherwise substantially modified.

3.55 T-Mobile have sought that the requirement to give one month’s notice in respect of contractual modifications be relaxed in respect of pre-pay contracts. They have also suggested that certain details (for example, references to service levels and connection times, particulars of prices and tariffs) would be better dealt with under other General Conditions (ie Condition 10 or 15).

Oftel’s comments

3.56 Oftel does not agree that the amendment suggested by the Operator’s Group with respect to paragraph 9.1 is an improvement on the current draft. Oftel had originally proposed wording for paragraph 9.1 similar to that suggested by the Operator’s Group. However, this wording was strongly objected to in the first consultation on the basis that it may imply some obligation on communications providers to supply to services to any end user on request. This is not the policy intention.

3.57 However, Oftel has amended paragraph 9.2 in line with the suggestions of the Operator’s Group, save for those in respect of sub-paragraph (e) (ie requiring that termination be in writing). Oftel is of the view that communications providers can decide how they will give and accept notice of termination: the important thing is that the consumer is made aware of this.

3.58 Consumers have a right to one month’s notice prior to modification based on Article 20(4) of the Universal Service Directive. It is not open to Oftel to fail to implement this provision, nor to only apply it in respect of certain types of contract. Oftel supports its inclusion as a fundamental consumer protection. However Oftel has deleted reference to a consumer’s right to terminate from sub-paragraph (e) of paragraph 9.2 to avoid any possible confusion.

3.59 Oftel does not agree that the insertion of the word ‘adverse’ before ‘material detriment’ (as suggested by the Operator’s Group) is an improvement on the current draft. As ‘detriment’ means ‘harm or damage’, this would be tautologous. Further, ‘material detriment’ is the test currently used by Oftel in Unfair Terms in Consumer Contracts Regulation cases. For this reason, it is neither new nor untested.

Condition 10: Transparency and Publication of Information (clause 48(1)(a))

Responses

3.60 The Operator’s Group have suggested that an exemption for bespoke or individually tailored tariffs be expressed clearly in the Condition. They have also suggested that the reference to ‘standard terms and conditions’ be omitted from paragraph 9.1, and a number of minor amendments to paragraph 9.2 for the purposes of clarity. The Operator’s Group in particular have objected to the requirement to publish standard contract conditions (sub-paragraph (g)) and details of dispute resolution mechanisms (sub-paragraph (h)) on the basis of proportionality.

3.61 In respect of paragraph 10.3, the Operator’s Group have sought that the publication requirements be amended so as to allow a communications provider to decide whether to place the information on a website or in each of its Major Offices. They have also suggested minor amendments to paragraph 10.4 for clarity.

Oftel’s comments

3.62 Oftel is content to clarify that the obligations under this Condition do not apply to bespoke or individual prices and tariffs, and has amended the Condition accordingly. However Oftel does not agree that reference to ‘standard terms and conditions’ in paragraph 10.1 is either disproportionate or inappropriate, as these terms clarify the true scope of the Condition.

3.63 Oftel has made many of the amendments suggested by the Operator’s Group in respect of paragraph 10.2, and agrees that these amendments add to the transparency of the obligations. However Oftel has not deleted the words ‘including details of standard discounts and special and targeted tariff schemes’ from sub-paragraph (d); nor have sub-paragraphs (g) or (h) been deleted. These are all clearly requirements drawn from Annex II to the Universal Service Directive, and are therefore objectively justifiable. Oftel does not agree that sub-paragraph (d) is confusing: in Oftel’s view, the words used help clarify what ‘standard’ in fact means without imposing a disproportionate burden upon providers. For example, some discounts may be standard as opposed to one-off; and some ‘special’ schemes may still be standard eg packages targeted at mobile phone users who send a large number of text messages per month.

3.64 The key policy objective underlying this obligation is to provide end users with sufficient information about their rights and obligations so as to allow them to make informed choices in accessing and using publicly available telephone services. Oftel expects communications providers subject to this Condition to use common sense in deciding what type of, and how much, information to publish, while keeping this underlying policy objective in mind.

3.65 Oftel disagrees that communications providers should have a choice as to how they make the relevant information publicly available, for the following reasons:

• Expecting end-users to wait for written details in the post or to personally visit a ‘Major Office’ is no longer reasonable. This requirement is intended to protect the interests of consumers, not prevent any inconvenience to communications providers. In Oftel’s experience, communications providers likely to be subject to this Condition already have websites, and it is therefore hard to see why inputting information would be a disproportionate burden.
• The requirement only extends to those prices that are in the public domain ie not bespoke or individually tailored tariffs. The Universal Service Directive requires that such information be transparent and up-to-date. Additionally, Article 21 (2) requires Member States to encourage the provision of information to enable end users to make an independent evaluation of the cost of alternative usage patterns. Oftel believes on-line provision is an efficient means of achieving these aims. However, not all end-users have access to the Internet, hence the fall back position of publication in a Major Office.

3.66 Oftel disagrees that the amendments to paragraph 10.4 suggested by the Operator’s Group are an improvement, in terms of clarity, of the current drafting. This paragraph has not been amended.

Condition 11: Metering and Billing (clause 48(1)(a))

3.67 This Condition was previously numbered 12, but has been re-numbered given the deletion of the Quality of Service Condition from the Interim SI regime. Note that the Quality of Service Condition will be set under the Bill regime (see Condition 21).

Responses

3.68 The Operator’s Group have objected to the obligation in paragraph 11.1 on the basis that it requires communications providers to render only bills that are 100 per cent accurate, which goes far beyond what is practical to achieve and the standard defined in OTR003. They have also questioned the need for communications providers to retain records in addition to the strict requirement to bill accurately.

3.69 The Operator’s Group have suggested amending paragraph 11.3 to remove any ‘double obligation’ between this paragraph and those following. They have also suggested that the reference to financial year in part (b) refer to a communication provider's financial year. The Operator’s Group has further suggested minor amendments to the remaining paragraphs for clarity.

3.70 The Mobile Broadband Group (and T-Mobile in a separate response) have suggested that the approval bodies not be named in the Condition, but be defined as bodies notified by the Director or Ofcom from time to time. This would allow for other bodies to be approved, without the need for changing the general condition.

3.71 T-Mobile have further suggested that the powers of the approval bodies to give directions under paragraph 11.4 (of the Communications Bill version) be limited to apply to those matters which are relevant to obtaining Approval. T-Mobile has also suggested that the definition of Total Metering and Billing System be amended to specify that it only includes charges for service provision and service usage for electronic communications.

3.72 The British Standards Institution (BSI) has suggested a number of drafting amendments to this Condition, specifically to ensure that the obligations apply in respect of metering and billing by communications providers to all users, rather than just end users; and to reduce the relevant turnover threshold triggering the need for Approval to £1 million.

Oftel’s comments

3.73 In Oftel’s view, the obligation in paragraph 11.1 should not be read as mandating 100 per cent accuracy in all cases – a reasonable amount of variance will be tolerated as long as any bill "represents" (ie corresponds to), and does not overcharge for, any service received by an end user.

3.74 Oftel has set out its policy regarding the requirement on communications providers to maintain records in relation to metering and billing in both the first and second consultation documents. This policy has not changed. Oftel also notes that the requirement to maintain records under paragraph 11.2 applies to communications providers beyond those required to obtain metering and billing approval under paragraph 11.4.

3.75 Oftel has reconsidered the drafting of this Condition in light of the Operators Group response and agrees with the aim of many of the amendments proposed. The Condition has been amended to reflect this. Oftel has also added further wording to the definition of ‘Relevant Turnover’ so as to clarify its application, and has amended the definition of ‘Total Metering and Billing System’ in line with T-Mobile’s suggestion.

3.76 Oftel has not, however, amended paragraph 11.4 as suggested by the Operator’s Group. In Oftel’s view, the current draft appropriately reflects the intended policy behind this paragraph: namely that a communications provider’s obligations in respect of obtaining Approval continue after an application for Approval has been made. In particular, Oftel expects communications providers subject to this obligation to co-operate with approval bodies after the application has been made so as to gain approval as soon as possible. Neither has Oftel deleted reference to ‘the anticipated date of such Approval’ in paragraph 11.6. In Oftel’s view, it is reasonable for a communications provider to obtain an estimate from an approval body of the likely timeframe within which Approval will be granted.

3.77 In relation to the definition of ‘Approval Bodies’, Oftel has decided to retain the current drafting on the basis that any amendment to the Condition (so as to update the reference to the approval bodies) must follow exactly the same process as if the approval bodies were listed in a direction of Ofcom or the Director. For this reason, it is no more convenient to have the approval bodies listed in a direction as on the face of the Condition itself; and the latter course is more transparent.

3.78 In relation to the response received from BSI, Oftel notes that the fundamental policy behind this obligation is to protect end users, and hence it would be disproportionate to apply these obligations to metering and billing arrangements between communications providers. Oftel also intends to maintain its current policy in respect of metering and billing approval in that only large providers of publicly available telephone services should, at this stage, be required to obtain approval. Any amendment to the criteria set out in paragraph 12.3 would require full policy consultation. Oftel has, however, taken on board the other amendments suggested by BSI and has clarified the Condition accordingly.

Condition 12: Itemised Bills (clause 48(1)(a))

3.79 This Condition was previously numbered 13, but has been renumbered following consultation.

Responses

3.80 The Operator’s Group have suggested the deletion of paragraph 12.3 (or 12.2 in the Interim SI version) subject to the insertion of ‘for a reasonable fee’ in paragraph 12.1. They have also suggested that reference to ‘control’ in paragraph 12.1 is confusing and should be deleted, as it imposes an obligation outside of the control of communications providers. They also suggest that the words ‘including calls to helplines’ be deleted from paragraph 12.4 (12.3 in the Interim SI version), as they are superfluous.

3.81 T-Mobile made a number of comments about the difference between "Freephone" calls and calls which are "free of charge" in the context of mobiles services.

Oftel’s comments

3.82 Whilst Oftel has no particular objection to deleting paragraph 12.3 (and agrees it may in fact be tidier), Oftel did not agree with the drafting proposed by the Operator’s Group for paragraph 12.1. This was because the proposed redraft took the emphasis away from the obligation on providers of publicly available telephone services to provide a basic level of itemisation on request, to their ability to charge for it. Oftel would in any case encourage such providers to provide itemised bills for free, and would not want to prevent this by way of this Condition. Paragraph 12.1 has been redrafted accordingly.

3.83 Oftel does not agree that references in the Condition to the ability of end users to control their expenditure are confusing. One of the key concerns of the Universal Service Directive is affordability and Recital 15 says "affordability… is related to the information which users receive regarding telephone usage expenses… and is also related to their ability to control expenditure". Article 10(2) also talks about ensuring that subscribers can "monitor and control expenditure". In Oftel’s view, these words help to clarify the aim of providing an itemised bill, and will therefore assist communications providers in deciding what level of itemisation is appropriate in any circumstances.

3.84 Oftel has also maintained the reference to ‘helplines’, as it assists in illustrating the aim of this obligation. Oftel understands that there may be some cases where a call to a ‘helpline’ may not necessarily be free of charge. Oftel would look at any particular case on its individual facts. However, in deciding whether or not a ‘free’ call should be identified on a bill, social policy considerations (such as the protection of vulnerable parties who may or may not be the subscriber) will be key.

Condition 13: Non-Payment of Bills (clause 48(1)(a))

3.85 This Condition was previously numbered 14, but has been renumbered following consultation.

Responses

3.86 The Operator’s Group objected to this Condition on the basis that it is unduly onerous, disproportionate and unfair to restrict the way in which a communications provider can deal with a situation where an end user has failed to meet its responsibilities under contract. They were also of the view that it is disproportionate to require a communications provider to publish measures taken with regard to any such failure on its website, in that the measures are inevitably likely to vary on a case by case basis (and may be confidential).

Oftel’s comments

3.87 Oftel does not agree that this Condition is unduly onerous, disproportionate or unfair. Disconnection of a home telephone should be a last resort. High rates of disconnections (relative to other basic services) are an area of considerable consumer concern. Oftel considers this proposal to be an appropriate measure to protect end users and encourage transparency of information. The Condition further accords with current policy and practice, and is allowed for by Article 29(3) of the Universal Service Directive.

3.88 Oftel expects communications providers subject to this Condition to publish details of their general disconnection policy, not how they have dealt with individual customers. Oftel has amended the Condition so as to clarify this issue.

Condition 14: [Codes of Practice and] Dispute Resolution (clause 48(1)(a) and 49 to 52)

3.89 This Condition was previously numbered 15, but has been renumbered following consultation. As explained in the second consultation document, this condition will look different under the Interim SI regime as compared to the Communications Bill regime. No responses were received in relation to the Interim SI version of this Condition published in the second consultation. The following paragraphs therefore deal exclusively with the Communications Bill version.

Responses

3.90 The Operator’s Group were of the view that the reference to "information in Condition 10.2" in the first paragraph should be deleted, as such information is not all necessarily appropriate for inclusion in a basic code of practice. They have also suggested other minor amendments for clarity.

3.91 T-Mobile have sought further clarification on the requirement to comply with the decision of a dispute resolution body in light of the Arbitration Act 1996 (which allows a party to arbitral proceedings to challenge the award in the Courts).

Oftel’s comments

3.92 Oftel agrees in principle with the suggestion of the Operators Group in relation to the reference to Condition 10.2, in that it would be disproportionate to require the level of detail required by Condition 10.2 to be included in the Basic Code of Parctice. Oftel has therefore amended paragraph 14.1 to require the Basic Code of Practice to set out where consumers may access the information required under Condition 10.2. The Basic Code of Practice does not need to list specific details, for example, of standard tariffs, but should provide basic information in line with the categories listed in Condition 10.2 and where consumers can go to get further information.

3.93 Oftel does not agree that the Arbitration Act 1996 has any relevance to the dispute resolution procedures required to be implemented under this Condition. Any type of dispute procedure will have its own procedural rules, which the communications provider is required to abide by. Oftel notes that the intention behind this obligation (and Article 34 of the Universal Service Directive) is to provide consumers with an "out of court" dispute resolution procedure.

Condition 15: Special Measures for End-Users with Disabilities (clause 48(1)(a))

3.94 This Condition was previously numbered 18, but has been renumbered following consultation.

Responses

3.95 The Operator’s Group suggested that, in respect of paragraph 15.1, the onus should be placed on the Consumer Panel to provide information to communications providers regarding the areas in which they would wish to have discussions. They have also suggested that "in respect of such information" be added to the end of paragraph 15.2, and that the obligation in respect of requiring access to a special directory enquiry facility to include through-connection on request be clarified. In general, they suggested that reference to ‘blind’ be replaced by ‘visually impaired.’

3.96 The Operator’s Group sought that the obligation to provide access to text relay services be entirely redrafted on the basis that it is confusing, particularly with regard to the reference to ‘standard local prices.’ They also suggested that the Condition be clarified so as to require end users to be able to receive call progress announcements, as opposed to a requirement on communications providers to make call progress announcements. The Operator’s Group sought clarification of the meaning of ‘call progress announcements.’

3.97 The Operator’s Group suggested that the words ‘as swiftly as practicable’ be deleted from the obligation requiring communications providers to supply a priority fault repair service, on the basis that they are otiose. They have also suggested drafting amendments to the obligation to provide a scheme to safeguard telephone services be re-drafted. The Operator’s Group opposed the obligation to publicise the services and facilities it provides in compliance with this Condition.

3.98 The RNIB have suggested that condition 15.3 specify that charges for calls completed by the directory enquiry operator should not exceed those made for directly-dialled calls.

3.99 T-Mobile believe that the deadline of 31 December 2003 for compliance with this Condition (for communications providers not currently subject to similar obligations) is unrealistic.

Oftel’s comments

3.100 Oftel disagrees that the onus in paragraph 15.1 should be on the Consumer Panel (or other advisory body) to approach communications providers in relation to discussion topics. In Oftel’s view, the requirement to consult these bodies from "time to time" is proportionate – there is no requirement to consult on each and every aspect of new and developing services. Similarly, Oftel does not believe that the addition of words ‘in respect of such information’ to paragraph 15.2 is necessary or an improvement on the current draft.

3.101 In light of the Operator’s Group suggestions, Oftel has amended the Condition so as to roll the obligation which previously sat in a separate paragraph (18.3) into paragraph 15.2. Oftel is of the view that it is appropriate to deal with all obligations relating to a special directory enquiry facility within the same paragraph. Oftel is also of the view that the re-drafted wording is more transparent than the previous version. Oftel have taken the Operator Group’s suggestion to refer to ‘visibly impaired’ (which has been supported by the RNIB).

3.102 In relation to the proposed amendments to paragraph 15.4, Oftel does not intend that either of the qualifications to the basic obligation on charges for calls to a relay service be discretionary (as suggested by the Operator’s Group amendment). It is intended that sub-paragraph (a) allow a communications provider to charge an end user the cost of a local call any time a relay service is used, even where the call is unsuccessful. It is intended that sub-paragraph (b) require the communications provider to apply a special tariff when charging for successful relay service calls given that such calls take longer because the conversation is threaded through the relay service. Oftel does not agree that this obligation is insufficiently transparent, and notes that this wording has been employed in equivalent licence conditions for some time, and has not resulted in any confusion to date.

3.103 Oftel agrees that the words "are able to" should be added to the obligation regarding call progress announcements, as this reflects the policy intention with respect to this obligation. Call progress announcements are those applied by Textdirect/Typetalk which cover network tones signifying: number ringing, number unobtainable and number occupied.

3.104 Oftel does not agree that the obligation to provide a priority fault repair service should be sufficient without more. In Oftel’s view, it is reasonable to expect such a service to be provided as swiftly as practicable. For example, "priority" might mean "within 72 hours" where the standard service is "within 5 days"; this may be insufficient for an ill or disabled end user who may require the telephone at all times. Oftel is therefore of the view that retention of these words is necessary and proportionate.

3.105 Oftel disagrees that the drafting of paragraph 15.6 is unclear, and notes that similar wording has been used in current licences for several years without causing confusion. In Oftel’s view, it will be relatively straightforward in each particular case to determine whether a disabled person is dependent on the telephone. Further, only a deliberate misreading of 15.6(e) could suggest that the services themselves should be free.

3.106 Oftel vigorously opposes any amendment to the obligation on providers to promote these services. A specific measure will only be of assistance to disabled end users where they are aware of the service. It is necessary to require the positive promotion of these services by communications providers as, in general, such services are not highly profitable for communications providers, and hence there is little incentive for communications providers to promote them.

3.107 Oftel expects that current arrangements regarding the pricing of calls made to 195 and equivalent directory enquiry services will remain in place so as to ensure that these calls remain affordable, and does not therefore see the need, at this stage, to add an obligation to the Condition regarding charging for this service. However, Oftel intends to keep this issue under review and may consider imposing specific obligations in this regard should they appear necessary in the future.

3.108 Oftel disagrees that the deadline for compliance with certain obligations under this Condition by communications providers not currently subject to equivalent conditions is unrealistic. Technological neutrality is to be encouraged in the new regime for communications regulation. However Oftel recognises that it is reasonable and proportionate that mobile communications providers be given additional time to align their service provisions to those already provided by fixed communications providers, and believes that 6 months is appropriate. Oftel notes that its proposals in this regard have been subject to public consultation since May 2002.

Condition 16: Provision of Additional Facilities (clause 48(1)(a) and (b))

3.109 This Condition was previously numbered 19, but has been renumbered following consultation.

Responses

3.110 The Operator’s Group have sought clarification in respect of the purpose of the reference "in all or part of the United Kingdom". T-Mobile has sought clarification as to whether GSM Gateway operators terminating on a network would place that network in breach of this condition by preventing end to end DTMF and CLI.

Oftel’s comment

3.111 Oftel intends, by virtue of this Condition, to allow the Director to dis-apply the requirements of the Condition in either all or part of the United Kingdom where the Director is satisfied, following due investigation, that sufficient access to the relevant facilities already exists either throughout the UK or in that specific part. Oftel is giving further consideration to the position of GSM Gateway operators in the new regime and hopes to respond to T-Mobile shortly.

Condition 17: Allocation, Adoption and Use of Telephone Numbers (clauses 55(1)(a) to (d), (2) and (4))

3.112 This Condition was previously numbered 20, but has been renumbered following consultation.

Responses

3.113 The Operator’s Group has requested that the terms "adopt" and "allocate" be defined in the General Conditions so as to clarify their meaning. They also suggested that the drafting of the first two paragraphs was confusing. In relation to paragraph 17.5, the Operators Group suggested that this be redrafted such that it referred to two separate obligations, and that the words ‘and otherwise operates’ be deleted. They also suggested that the reference to "switched Electronic Communications Network" does not take account of networks that do not employ switching technology.

3.114 In relation to paragraph 17.6, the Operator’s Group suggested that the word "secure" be replaced with a "best endeavours obligation to ensure" as this term is more appropriate as to what is required. The also suggested that the text "or otherwise managed or used in such a way" is ambiguous and superfluous, and should be deleted.

3.115 The Operator’s Group was of the view that a non-discrimination obligation, such as that at paragraph 17.7, can only be imposed on operators who have been declared to have SMP in the relevant call origination markets. They were also of the view that paragraph 17.8 should be deleted, as it is disproportionate to place this as an obligation on the communications provider when it is in reality an obligation on and the responsibility of the customer.