The Open Internet Access (EU Regulation) Regulations 2016

Made: 24th May 2016

Laid before Parliament: 26th May 2016

Coming into force: 17th June 2016

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in respect of matters relating to electronic communications, in exercise of the powers conferred by that section makes the following Regulations:

PART 1 — PRELIMINARY

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the Open Internet Access (EU Regulation) Regulations 2016 and come into force on 17th June 2016.

• (2) In these Regulations—

• “the EU Regulation” means Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25th November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union ;

• “information requirement” has the meaning given in regulation 16; and

• “OFCOM” means the Office of Communications as established by the Office of Communications Act 2002 .

• (3) In these Regulations, references to OFCOM’s functions under the EU Regulation should be read as references to OFCOM’s functions for the purposes of Articles 3, 4 and 5 of the EU Regulation.

Service of notifications and other documents

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• (1) This regulation applies where provision made (in whatever terms) by or under these Regulations authorises or requires—

• (a) a notification to be given to any person; or

• (b) a document of any other description (including a copy of a document) to be sent to any person.

• (2) This regulation has effect subject to regulation 3.

• (3) The notification or document may be given or sent to the person in question—

• (a) by delivering it to the person;

• (b) by leaving it at the person's proper address; or

• (c) by sending it by post to the person at that address.

• (4) The notification or document may be given or sent to a body corporate by being given or sent to the secretary or clerk of that body.

• (5) The notification or document may be given or sent to a firm by being given or sent to—

• (a) a partner in the firm; or

• (b) a person having the control or management of the partnership business.

• (6) The notification or document may be given or sent to an unincorporated body or association by being given or sent to a member of the governing body of the body or association.

• (7) For the purposes of this regulation and section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this regulation, the proper address of a person is—

• (a) in the case of a body corporate, the address of the registered or principal office of the body;

• (b) in the case of a firm, unincorporated body or association, the address of the principal office of the partnership, body or association;

• (c) in the case of a person to whom the notification or other document is given or sent in reliance on any of paragraphs (4) to (6), the proper address of the body corporate, firm or (as the case may be) other body or association in question; and

• (d) in any other case, the last known address of the person in question.

• (8) In the case of—

• (a) a company registered outside the United Kingdom,

• (b) a firm carrying on business outside the United Kingdom, or

• (c) an unincorporated body or association with offices outside the United Kingdom,

the references in paragraph (7) to its principal office include references to its principal office within the United Kingdom (if any).

• (9) In this regulation—

• “document” includes anything in writing;

• “notification” includes notice; and references to giving or sending a notification or other document to a person include references to transmitting it to that person and to serving it on that person.

Notifications and documents in electronic form

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• (1) This regulation applies where—

• (a) regulation 2 applies; and

• (b) the notification or other document is transmitted to the recipient—

• (i) by means of an electronic communications network; or

• (ii) by other means but in a form that nevertheless requires the use of apparatus by the recipient to render it intelligible.

• (2) The transmission has effect for the purposes of these Regulations as a delivery of the notification or other document to the recipient, but only if the requirements imposed by or under this regulation are complied with.

• (3) Where the recipient is OFCOM—

• (a) they must have indicated their willingness to receive the notification or other document in a manner mentioned in paragraph (1)(b);

• (b) the transmission must be made in such manner and satisfy such other conditions as they may require; and

• (c) the notification or other document must take such form as they may require.

• (4) Where the person making the transmission is OFCOM, they may (subject to paragraph (5)) determine—

• (a) the manner in which the transmission is made; and

• (b) the form in which the notification or other document is transmitted.

• (5) Where the recipient is a person other than OFCOM—

• (a) the recipient, or

• (b) the person on whose behalf the recipient receives the notification or other document,

must have indicated to the person making the transmission the recipient's willingness to receive notifications or documents transmitted in the form and manner used.

• (6) An indication to any person for the purposes of paragraph (5)—

• (a) must be given to that person in such manner as that person may require;

• (b) may be a general indication or one that is limited to notifications or documents of a particular description;

• (c) must state the address to be used and must be accompanied by such other information as that person requires for the making of the transmission; and

• (d) may be modified or withdrawn at any time by a notice given to that person in such manner as that person may require.

• (7) An indication, requirement or determination given, imposed or made by OFCOM for the purposes of this regulation is to be given, imposed or made by being published in such a manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

• (8) Regulation 2(9) applies for the purposes of this regulation as it applies for the purposes of that regulation.

PART 2 — NATIONAL REGULATORY AUTHORITY

National Regulatory Authority

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BEREC guidelines

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Certification of monitoring mechanisms

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OFCOM may certify one or more monitoring mechanisms to measure the performance of internet access services for the purposes of Article 4(4) of the EU Regulation.

PART 3 — REQUIREMENTS

Power to impose requirements

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• (1) Subject to paragraph (2A), OFCOM shall have the power to impose requirements for either or both of the purposes in paragraph (2).

• (2) Those purposes are—

• (a) to ensure compliance with Articles 3 and 4 of the EU Regulation;

• (b) to ensure the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology.

• (2A) A requirement imposed under paragraph (1) must be concerned with—

• (a) technical characteristics;

• (b) minimum quality of service requirements;

• (c) any other measure that is appropriate and necessary for either or both of the purposes in paragraph (2).

• (3) OFCOM's power to impose a requirement under paragraph (1) includes the power to—

• (a) impose a duty on the person or persons to whom the requirement is applied to comply with such directions with respect to the matters to which the requirement relates as may be given from time to time by OFCOM or by another person specified in the requirement;

• (b) impose a duty with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;

• (c) confer, for the purposes of provision made by virtue of either of the preceding sub–paragraphs, a discretion exercisable from time to time by OFCOM or by another person specified in the requirement or determined in accordance with provision contained in it;

• (d) impose different requirements for different cases (including different requirements in relation to different parts of the United Kingdom);

• (e) revoke or modify the requirements for the time being in force.

• (4) Any person to whom requirements set under paragraph (1) are applied in accordance with paragraph (5) must comply with those requirements.

• (5) A requirement imposed under paragraph (1) may be applied to any provider of electronic communications to the public, including any provider of internet access services.

• (6) In this regulation, “provider of electronic communications to the public” and “internet access service” have the meanings given in Article 2 of the EU Regulation.

Test for imposing, modifying or revoking requirements

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OFCOM must not impose a requirement under regulation 7, or modify or revoke such a requirement, unless they are satisfied that to do so is—

• (1) objectively justifiable in relation to the networks or services to which it relates;

• (2) proportionate to what the requirement or modification is intended to achieve; and

• (3) in relation to what it is intended to achieve, transparent.

Procedure for imposing, modifying or revoking requirements

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• (1) Subject to the following provisions of these Regulations—

• (a) the way in which requirements are to be imposed or modified under regulation 7 is by the publication of a notification setting out the requirements or modifications of those requirements;

• (b) the way in which such a requirement is to be revoked is by the publication of a notification stating that the requirement is revoked.

• (2) OFCOM must comply with the applicable requirements of regulation 10 before—

• (a) imposing requirements under regulation 7; or

• (b) modifying or revoking a requirement so imposed.

• (3) The publication of a notification under this regulation must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.

Consultation for requirements

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• (1) Subject to paragraph (2), this regulation applies where OFCOM propose to impose a requirement under regulation 7, or modify or revoke a requirement so imposed.

• (2) This regulation does not apply where in OFCOM's opinion—

• (a) there are exceptional circumstances; and

• (b) there is an urgent need to act in order to ensure compliance with the EU Regulation.

• (3) OFCOM must publish a notification—

• (a) stating that they are proposing to impose, modify or revoke the requirements that are specified in the notification;

• (b) setting out the effects of those requirements, modifications or revocations;

• (c) giving their reasons for making the proposal; and

• (d) specifying the period within which representations may be made to OFCOM about their proposal.

• (4) That period must end no less than one month after the day of the publication of the notification.

• (5) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

• (6) OFCOM must—

• (a) consider every representation about the proposal made to them during the period specified in the notification; and

• (b) have regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

• (7) OFCOM may then give effect to the proposal, with any modifications that appear to OFCOM to be appropriate.

• (8) The publication of a notification under this regulation must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.

Delivery of copies of notifications in respect of requirements

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OFCOM must send to the Secretary of State a copy of every notification published under regulation 9(1) or regulation 10(3).

Test for giving, modifying or withdrawing directions, approvals and consents for the purposes of a requirement imposed under regulation 7

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• (1) This regulation applies where—

• (a) a requirement imposed under regulation 7 has effect by reference to directions, approvals or consents given by a person (whether OFCOM themselves or another); and

• (b) that person (referred to in this regulation and regulations 13, 14 and 15 as “the responsible person”) is proposing to give a direction, approval or consent that affects the operation of that requirement or to modify or withdraw a direction, approval or consent so as to affect the requirement's operation.

• (2) The responsible person must not give, modify or withdraw the direction, approval or consent unless the responsible person is satisfied that to do so is—

• (a) objectively justifiable in relation to the networks or services to which it relates;

• (b) proportionate to what it is intended to achieve; and

• (c) in relation to what it is intended to achieve, transparent.

Procedure for giving, modifying or withdrawing directions, approvals and consents

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• (1) Subject to the following provisions of these Regulations—

• (a) the way in which directions, approvals and consents under regulation 7(3) are to be given or modified is by the publication of a notification setting out the directions, approvals or consents, or modifications of those directions, approvals or consents;

• (b) the way in which such a direction, approval or consent is to be withdrawn is by the publication of a notification stating that the direction, approval or consent is withdrawn.

• (2) The responsible person must comply with the applicable requirements of regulation 14 before—

• (a) giving a direction, approval or consent; or

• (b) modifying or withdrawing a direction, approval or consent.

• (3) The publication of a notification under this regulation must be in such manner as appears to the responsible person to be appropriate for bringing the contents of the notification to the attention of such persons as the responsible person considers appropriate.

Consultation for directions, approvals and consents

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• (1) This regulation applies where the responsible person is proposing to give, modify or withdraw a direction, approval or consent under regulation 7(3).

• (2) This regulation does not apply where in OFCOM's opinion—

• (a) there are exceptional circumstances; and

• (b) there is an urgent need to act in order to ensure compliance with the EU Regulation.

• (3) The responsible person must publish a notification—

• (a) stating that there is a proposal to give, modify or withdraw the direction, approval or consent;

• (b) identifying the responsible person;

• (c) setting out the direction, approval or consent to which the proposal relates;

• (d) setting out the effect of the direction, approval or consent or its proposed modification or withdrawal;

• (e) giving reasons for the making of the proposal; and

• (f) specifying the period within which representations may be made about the proposal to the responsible person.

• (4) That period must end no less than one month after the day of the publication of the notification.

• (5) But where the responsible person is satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period that person considers reasonable in those circumstances.

• (6) The responsible person must—

• (a) consider every representation about the proposal made to that person during the period specified in the notification; and

• (b) have regard to every international obligation of the United Kingdom (if any) which has been notified to OFCOM for the purpose of this paragraph by the Secretary of State.

• (7) The responsible person may then give effect to the proposal, with any modifications that appear to the responsible person to be appropriate.