Commentary on Sections Schedule 9: Transitional provisions for Part 3
478.Schedule 9 enables OFCOM to carry out certain functions during the transitional period. The transitional period is the period between the day the Act is passed and the date when OFCOM take on responsibility for postal regulation, when the provisions of Part 3 of the Act generally come into force.
479.Paragraph 2 provides that until the first universal postal service order is made by OFCOM, the universal service is defined by reference to section 4 of the Postal Services Act 2000 (defining the universal service), and services within the scope of the universal service are decided by reference to section 7A of the Postal Services Act 2000, which describes the services not outside the scope of the universal postal service prior to the day the Act is passed. Paragraph 2 also makes clear that, during the transitional period, the duty to secure the provision of the universal postal service (section 28) applies to Postcomm as well as OFCOM.
480.Under paragraph 3 OFCOM may designate provisionally one or more universal service provider, but any such designation ceases to have effect when the first designation is made under section 35.
481.Under paragraph 4, OFCOM must determine before the end of the transitional period the regulatory conditions applying to postal operators when Part 3 of the Act generally comes into force. These “initial conditions” must be similar to the current licence conditions for either the designated universal service provider or other operators, save where they appear to OFCOM unnecessary to maintain the current conditions. The general test for imposing regulatory conditions (paragraph 1 of Schedule 6) applies subject to this requirement that initial conditions must be similar to those in place before the Act comes into force generally, save where they appear unnecessary.
482.Paragraph 5 provides that OFCOM may impose conditions ("transitory conditions") which replicate existing licence conditions, which they would otherwise not be able to do under Part 3. This paragraph also provides that transitory conditions are automatically revoked when the first universal service order is made, and that references to ‘initial conditions’ in paragraph 4 includes ‘transitory conditions’.
483.Paragraph 6 provides that any modifications to initial conditions must not result in conditions that could not have been imposed under Part 2 of the Postal Services Act 2000. The procedures under Schedule 6 (relating to the imposition, modification or revocation of conditions), Schedule 7 (enforcement of regulatory conditions) and under sections 57-59 (appeals) apply to the imposition of initial conditions. This paragraph, other than when revoking a transitory condition, also generally applies to transitory conditions.
484.Paragraph 7 provides that, in the first year that OFCOM recovers its charges under Schedule 4, OFCOM must prepare a statement of principles that they are proposing to apply in fixing administrative charges but that, for that first year, there is no requirement for OFCOM to have the statement in place at the start of the year or at the time the charges are fixed.
485.Paragraph 8 gives the Secretary of State power to make an order amending a provision in the universal service provider’s licence to extend a volume adjuster mechanism to allow a volume forecast index to continue to an index year ending 31 March 2012. The order made by the Secretary of State may adopt a forecast figure which has been produced by Postcomm using the same methods as used by it to determine the forecast figures for the index years currently set out in the licence condition. Before making the Order, the Secretary of State must consult the universal service provider and such other persons as he considers appropriate for a period of 21 days, and consider representations that might be received.
486.Paragraphs 9, 10 and 11 provide that, during the transitional period, the provisions relating to the universal postal service order, the designation of a universal service provider, and the imposition of conditions apply to the extent necessary for OFCOM to be able to work on those matters. This work includes market assessment and consultation. The provisions in relation to information provision (section 55 and Schedule 8) also apply to the extent necessary for OFCOM to carry out their functions during or after the transitional period. The provisions of section 56 (general restriction on disclosure of information) have effect accordingly.
487.Paragraphs 12 and 13 provide that OFCOM can rely on any work conducted by or in relation to Postcomm prior to the passing of the Act and that, during the transitional period, Postcomm must consult OFCOM before doing anything with a view to modifying or revoking a licence condition.
488.Paragraph 14 gives OFCOM the power to take forward in any way they see fit (including discontinuing) legal proceedings or other action begun by Postcomm in respect of licence condition contraventions (or anything that Postcomm considered might be a contravention) under Part 2 of the Postal Services Act 2000. Furthermore, Paragraph 15 gives OFCOM the power, after repeal of that Part, to begin legal proceedings themselves (or to do anything else they consider appropriate) if they believe a person contravened a licence condition prior to that repeal.