Legalize / United Kingdom / Statutory-Instrument

The Regulation of Premium Rate Services Order 2024

Type Statutory-Instrument

Publication 2024-10-21

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(a) a record of the consumer’s use of the remote gambling service (including information about wins and losses), and

(b) the consumer’s account information (including the latest balance).

(3) The information in paragraph (2) must be made available at all times while the consumer is using the service.

(4) In this article—

“remote gambling service” means a threshold service that includes the making available of a facility for— gaming (within the meaning of section 6 of the 2005 Act), or betting (within the meaning of sections 9 to 11 of the 2005 Act), but does not include a betting tipster service or a society lottery service;

“betting tipster service” means a threshold service solely making available a facility for offering information to consumers for the purposes of facilitating the making or accepting of a bet in relation to— the outcome of a race, competition or other event or process, the likelihood of anything occurring or not occurring, or whether anything is or is not true;

“society lottery service” has the meaning given in article 53(4).

PART 7 — Additional requirements for network operators

Requirement for network operators to retain relevant payments

53

(1) This article applies where a network operator is liable to make relevant payments to another PRS provider (“P”).

(2) The network operator must not make relevant payments to P for at least 30 calendar days beginning with the day on which the controlled PRS was used by the consumer.

(3) The requirement in paragraph (2) does not apply to relevant payments relating to a society lottery service.

(4) In this article—

“relevant payments” mean any payments owed by the network operator to P relating to, or connected with, the provision of a controlled PRS used by a consumer of an electronic communications service by means of which the controlled PRS is provided;

“society lottery service” means a threshold service solely making available a facility for entering a lottery (within the meaning of section 14 of the 2005 Act)— operated by a non-commercial society (within the meaning of section 19 of the 2005 Act[^f00008]), or operated for the benefit of such a non-commercial society.

Requirement for network operators to keep premium rate number records

54

(1) A network operator must make and keep a record in writing of any premium rate number which is being or has been—

(a) transferred from the network operator to another person, or

(b) used by another person,

for the provision of a controlled PRS.

(2) The entry in the record must contain—

(a) the name of the person referred to in paragraph (1)(a) or (b) (as the case may be), and

(b) the name of the merchant using the premium rate number (if known and applicable).

(3) In this article, “premium rate number” has the meaning given in article 3(8).

PART 8 — Information requirements

Requirements to provide information to OFCOM

55

(1) OFCOM may require a PRS provider to provide them with all such information as OFCOM consider necessary for the purpose of carrying out their functions under or by virtue of this Order.

(2) The information that may be required by OFCOM under paragraph (1) includes, in particular, information that they require for any one or more of the following purposes—

(a) ascertaining whether a contravention of a requirement imposed by this Order has occurred or is occurring,

(b) ascertaining or verifying the charges payable by a person under Part 3, and

(3) For the purposes of paragraph (1), OFCOM may, in particular, require the PRS provider to—

(a) collect or retain any information that the PRS provider would not otherwise collect or retain,

(b) process, collate or analyse any information held by the PRS provider, or

(4) A PRS provider required to provide information under paragraph (1) must provide it in such manner and form, and within such reasonable period, as may be specified by OFCOM.

(5) OFCOM are not to require the provision of information under paragraph (1) except—

(a) by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it, and

(b) where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions under or by virtue of this Order.

(6) Except in the case of a demand made in the manner authorised by paragraph (7), a demand for information under paragraph (1) must be contained in a notice served on the PRS provider from whom the information is required.

(7) In the case of information required by OFCOM for the purpose of ascertaining who is liable to pay the charges under Part 3, the demand may—

(a) be made by being published in such a manner as OFCOM consider appropriate for bringing it to the attention of the liable network operators who are described in the demand as being the persons from whom the information is required, and

(b) take the form of a general demand for a liable network operator to provide information when specified conditions relevant to the liable network operator’s liability to such charges under Part 3 are satisfied in that operator’s case.

(8) In this article, “liable network operators” has the meaning given in article 14(7).

PART 9 — Records

Record-keeping

56

(1) A PRS provider to whom a requirement to make and keep a relevant record applies under this Order must keep such a record for at least the duration of the applicable period from the date on which the record was created.

(2) In this article—

“applicable period” means— in the case of a record required to be kept by article 17(11), three years; in any other case, two years;

“relevant record” means a record in writing that must be made and kept under this Order.

PART 10 — Enforcement

CHAPTER 1 — Enforcement of requirements under Parts 2 to 9 of this Order

Power of OFCOM to publish notice of investigation

57

(1) Where OFCOM decide to conduct a relevant investigation, they may publish on their website a notice which may, in particular—

(a) state their decision to do so,

(b) indicate which of those two cases mentioned in paragraph (4) the investigation falls under,

(d) identify any PRS provider whose activities are being investigated as part of the investigation, and

(e) specify the controlled PRS which is the subject-matter of the investigation.

(2) Where OFCOM publish a notice under paragraph (1), they must also give a notification to each PRS provider whose activities are being investigated.

(3) A notification under paragraph (2) must—

(a) set out the matters referred to in paragraph (1)(a) to (e), and

(b) specify whether OFCOM is imposing a requirement on the PRS provider to preserve evidence in accordance with article 58.

(4) In this article, “relevant investigation” means an investigation to determine whether there are grounds—

(a) for serving a notice in accordance with article 59, or

(b) for giving a direction in accordance with article 62.

Preservation of evidence for an investigation

58

(1) P must—

(a) keep, or

(b) take all reasonable steps to obtain from another person and keep,

any evidence relevant, or potentially relevant, to a matter being investigated by OFCOM.

(2) The requirement in paragraph (1) takes effect for an indefinite period beginning with the time at which OFCOM give pursuant to article 57(2) a notification to P, except so far as the notification otherwise provides.

(3) As soon as reasonably practicable after OFCOM have completed the investigation which is the subject of that notification, they must notify P of that fact and that the requirement in paragraph (1) therefore has ceased to have effect.

(4) In this article, “P” means a PRS provider on whom OFCOM has imposed a requirement in accordance with article 57(3)(b).

Provisional enforcement notice

59

(1) Where OFCOM determine that there are reasonable grounds for believing that a PRS provider (“P”) is contravening, or has contravened, a requirement imposed by Parts 2 to 9 of this Order, OFCOM may serve a provisional enforcement notice (“PEN”) on P.

(2) A PEN is one which—

(a) sets out the determination made by OFCOM,

(b) specifies the requirement in respect of which that determination has been made,

(d) specifies the manner in which such representations are to be made to OFCOM,

(e) specifies the steps that OFCOM think should be taken by P in order to—

(i) comply with the requirement, and

(ii) remedy the consequences of the contravention,

(f) specifies the period within which OFCOM think those steps should be taken by P,

(g) specifies any penalty which OFCOM are minded to impose in accordance with article 60, and

(h) where the contravention is serious, specifies any direction which OFCOM are minded to give under article 64.

(3) The periods mentioned in paragraphs (2)(c) and (f) may be whatever periods OFCOM consider reasonable, having regard to the facts and circumstances of the case.

(4) A PEN—

(a) may be served in respect of more than one contravention, and

(b) if it is served in respect of a continuing contravention, may be served in respect of any period during which the contravention has continued.

(5) Where a PEN has been served on P in respect of a contravention of a requirement imposed by Parts 2 to 9 of this Order, OFCOM may serve a further PEN in respect of the same contravention of that requirement if, and only if—

(a) the contravention is one occurring after the time of the serving of the earlier PEN,

(b) the contravention is a continuing contravention and the subsequent PEN is in respect of so much of a period as falls after a period to which the earlier PEN relates, or

Penalties

60

(1) This article applies where a PEN is served on P under article 59 which specifies a proposed penalty.

(2) Where the PEN relates to more than one contravention, OFCOM may specify—

(a) a single penalty in respect of all of those contraventions, or

(b) separate penalties in respect of each of those contraventions,

according to whether OFCOM are minded to determine that a single penalty or separate penalties are appropriate and proportionate to those contraventions.

(3) The amount of a single penalty or the amount of each of separate penalties is to be such amount not exceeding £250,000 as OFCOM determine to be—

(a) appropriate, and

(b) proportionate to the contravention in respect of which it is imposed.

Final enforcement notice

61

(1) This article applies where—

(a) a PEN has been served on P under article 59,

(b) OFCOM have allowed P an opportunity to make representations about the matters notified, and

(2) OFCOM may—

(a) serve on P an enforcement notice with a final decision (“FEN”)—

(i) confirming the imposition of requirements on P,

(ii) confirming the giving of a direction under article 64 to P,

(iii) confirming the giving of a direction under article 64 to relevant providers, or

(iv) doing some or all of those things,

in accordance with the PEN served under article 59, or

(b) inform P, having considered any representations made by P, that no further action will be taken.

(3) Where the FEN includes OFCOM’s confirmation of the giving of a direction to relevant providers under paragraph (2)(a)(iii), OFCOM must also serve the FEN on those relevant providers.

(4) OFCOM may not serve a FEN on P unless, after considering any representations made by P, they are satisfied that P has, in one or more of the respects notified, been in contravention of a requirement specified in the PEN served under article 59.

(5) A FEN—

(a) must be served on P without delay,

(b) must include reasons for the final decision,

(c) may require immediate action by P to comply with requirements of a kind mentioned in article 59(2)(e), or may specify a period within which P must comply with those requirements,

(d) may require P to pay—

(i) the penalty specified in the PEN served under article 59, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of P’s representations or steps taken by P to comply with the requirement or to remedy the consequences of the contravention, and

(e) may specify the period within which the penalty is to be paid.

(6) P must comply with any requirement imposed by the FEN within the specified period.

(7) In this article, “relevant providers” has the meaning given in article 64(6).

Interim measures

62

(1) This article applies where OFCOM determine—

(a) that there are reasonable grounds for suspecting that a PRS provider (“Q”) is contravening, or has contravened, a requirement imposed by Parts 2 to 9 of this Order,

(b) that either Condition A or Condition B is satisfied, and

(c) that the giving of a direction under this article is appropriate and proportionate to the suspected contravention in respect of which it is imposed.

(2) Condition A is that there are reasonable grounds for suspecting that Q is unable, or is likely to be unable, to pay Q’s debts as they fall due.

(3) Condition B is that—

(a) there are reasonable grounds for suspecting that the case is an urgent case, and

(b) the urgency of the case makes it appropriate for OFCOM to take action under this article.

(4) A case is an urgent case for the purposes of paragraph (3)(a) if the contravention has resulted in, or creates an immediate risk of, serious harm to consumers or members of the public including, in particular, to vulnerable consumers.

(5) OFCOM may give to Q—

(a) where Q is not a body corporate, a direction that Q’s working in connection with a regulated activity is prohibited, suspended or restricted (either generally or in relation to a particular regulated activity), or

(b) where Q is a body corporate, a direction that Q’s carrying on a regulated activity is prohibited, suspended or restricted (either generally or in relation to a particular regulated activity).

(6) OFCOM may also (irrespective of whether any direction has been given to Q under paragraph (5)) give to PRS providers (other than Q) who are carrying out a regulated activity (“relevant providers”)—

(a) a direction that they must notify OFCOM of any relevant payments at such times and periods as may be determined by or in accordance with the terms of the direction,

(b) a direction that they must retain any relevant payment, or proportion of such payment, as may be determined by or in accordance with the terms of the direction, or

(c) a direction that they are prohibited, suspended or restricted from dealing with Q under such conditions as may be specified in the direction.

(7) A direction under either paragraph (5) or paragraph (6)—

(a) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to Q or (as the case may be) to relevant providers,

(b) in providing for the effect of a prohibition, suspension, restriction or a requirement to retain a relevant payment to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction, and

(c) in connection with a prohibition, suspension, restriction or a requirement to retain a relevant payment contained in the direction or with the postponement of its effect, may impose such conditions as appear to OFCOM to be appropriate for the purpose of protecting consumers.

(8) Those conditions may include a condition requiring the making of payments—

(a) by way of compensation for loss or damage suffered by consumers as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(9) OFCOM may revoke a direction given under either paragraph (5) or paragraph (6)—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify, and

(10) Every person to whom a direction has been given under either paragraph (5) or paragraph (6) must comply with it.

(11) In this article, “relevant payments” mean any payments owed to Q relating to, or connected with, the provision of a controlled PRS to users of the electronic communications services by means of which the controlled PRS is provided.

Confirmation of directions under article 62

63

(1) As soon as reasonably practicable after giving a direction under article 62, OFCOM must give the person to whom it is given—

(a) an opportunity of making representations to them about the grounds on which it was given and its effect, and

(b) an opportunity of proposing steps (if any) to remedy the situation.

(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within three months beginning with the day on which the direction was given), they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur, and

(b) whether the circumstances made it a case justifying the giving of the direction.

(3) The period of three months mentioned in paragraph (2) may be extended by up to three months if OFCOM—

(a) require additional time to consider representations received, or

(b) decide that it is necessary to obtain additional information from the person in order to make a determination under paragraph (2).

(4) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(5) If not, they must exercise their power to revoke it.

(6) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.

(7) Conditions included in a direction by virtue of article 62(8) have effect only if the direction is confirmed.

(8) Every person to whom a direction has been confirmed under paragraph (4) must comply with it.

Directions for serious contraventions

64

(1) OFCOM may give a direction under this article where—

(a) either Condition A or Condition B is satisfied, and

(b) the giving of a direction is appropriate and proportionate to the contravention in respect of which it is imposed.

(2) Condition A is that—

(a) P is in serious contravention of a requirement imposed by Parts 2 to 9 of this Order,

(b) at the time P contravenes the requirement, P either knowingly contravenes it or is reckless as to whether or not it is contravened, and

(3) Condition B is that—

(a) P is in serious contravention of a requirement imposed by Parts 2 to 9 of this Order,

(b) it was reasonably practicable for P to comply with the requirement and P failed to take all reasonable steps to prevent that serious contravention, and

(4) Where either Condition A or Condition B is satisfied, a direction under this article is given where OFCOM serve a FEN under article 61 to P, or (as the case may be) to relevant providers (within the meaning of paragraph (6)), in respect of a direction proposed in a PEN under article 59.

(5) OFCOM may give to P—

(a) where P is not a body corporate, a direction that P’s working in connection with a regulated activity is prohibited, suspended or restricted (either generally or in relation to a particular regulated activity), or

(b) where P is a body corporate, a direction that P’s carrying on a regulated activity is prohibited, suspended or restricted (either generally or in relation to a particular regulated activity).

(6) OFCOM may also (irrespective of whether any direction has been given to P under paragraph (5)) give to PRS providers (other than P) who are carrying out a regulated activity (“relevant providers”)—

(a) a direction that they must notify OFCOM of any relevant payments at such times and periods as may be determined by or in accordance with the terms of the direction,

(b) a direction that they must retain any relevant payment, or proportion of such payment, as may be determined by or in accordance with the terms of the direction, or

(c) a direction that they are prohibited, suspended or restricted from dealing with P under such conditions as may be specified in the direction.

(7) A direction under either paragraph (5) or paragraph (6)—

(a) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is given to P or (as the case may be) to relevant providers,

(b) in providing for the effect of a prohibition, suspension, restriction or a requirement to retain a relevant payment to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction, and

(c) in connection with the prohibition, suspension, restriction or a requirement to retain a relevant payment contained in the direction or with the postponement of its effect, may impose such conditions as appear to OFCOM to be appropriate for the purpose of protecting consumers.

(8) Those conditions may include a condition requiring the making of payments—

(a) by way of compensation for loss or damage suffered by consumers as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(9) OFCOM may revoke a direction given under either paragraph (5) or paragraph (6)—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify, and

(10) Every person to whom a direction has been given under either paragraph (5) or paragraph (6) must comply with it.

(11) In this article, “relevant payments” mean any payments owed to P relating to, or connected with, the provision of a controlled PRS to users of the electronic communications services by means of which the controlled PRS is provided.

Interpretation of this Part

65

(1) In this Part—

“FEN” has the meaning given in article 61(2)(a);

“PEN” has the meaning given in article 59(1);

“vulnerable consumers” has the meaning given in article 39(4).

(2) References in this Part to remedying the consequences of a contravention include references to paying an amount to a person—

(a) by way of compensation for loss or damage suffered by that person, or

(b) in respect of annoyance, inconvenience or anxiety to which the person has been put.

(3) In determining for the purposes of provisions of this Part whether a contravention is a serious contravention, OFCOM must have regard, in particular, to matters likely to have a significant impact on consumers or the general public in the United Kingdom or in a part of the United Kingdom.

CHAPTER 2 — Transitional provisions

Transitional arrangements for the purposes of a relevant approved code

66

Schedule 4 contains transitional arrangements for the purposes of a relevant approved code (within the meaning in that Schedule).

SCHEDULE 1 — Information to be given to OFCOM before carrying out a regulated activity

Interpretation

1

In this Schedule—

“generally authorised person” has the meaning given in article 10(1)(b);

“senior management” has the meaning given in article 10(6).

General details of the PRS provider

2

The following details—

(a) in the case of a body corporate, firm, unincorporated body or association that is a legal person under the law by which it is governed—

(i) in the case of a limited company that is registered in the United Kingdom, the registered name, number and address, and any trading name, or

(ii) in any other case, particulars of the legal form of a company, firm, unincorporated body or association under the law by which it is governed, and (if applicable) the register in which it is entered and its registered name, number and address in that register, and any trading name, or

(b) in any other case, the name (including trading name) and the last known address of the PRS provider.

3

Main telephone number.

4

Main email address.

5

Website address (if applicable).

6

Confirmation as to whether the PRS provider is—

(a) a network operator,

(b) an intermediary, or

Generally authorised person

7

The name, job title, telephone number, and email address of the generally authorised person (or persons) and the purpose (or purposes) referred to in article 10(5) for which the person (or persons) has (or have) been appointed.

Directors or members of senior management

8

The name and job title of—

(a) where the PRS provider is a body corporate, each of the directors of the PRS provider, or

(b) where the PRS provider is not a body corporate, each member of the PRS provider’s senior management.

Specific information required from merchants

9

Where a PRS provider is a merchant, the PRS provider must also provide the following information in respect of each controlled PRS to be provided to consumers—

(a) the brand name (if any) of the service,

(b) a brief description of the service,

(d) the telephone number or email address to be used by consumers for making any complaints or enquiries,

(e) details of the name of any other PRS provider involved in the provision of that service, including for promotion and marketing of that service, and

(f) the name of any other person contracted with respect to the service, including for the promotion and marketing of that service.

SCHEDULE 2 — Registration for transitional cases

Interpretation

1

In this Schedule, “generally authorised person” has the meaning given in article 10(1)(b).

General details of the PRS provider

2

The following details—

(a) in the case of a body corporate, firm, unincorporated body or association that is a legal person under the law by which it is governed—

(i) in the case of a limited company that is registered in the United Kingdom, the registered name, number and address, and any trading name, or

(ii) in any other case, particulars of the legal form of a company, firm, unincorporated body or association under the law by which it is governed, and (if applicable) the register in which it is entered and its registered name, number and address in that register, and any trading name, or

(b) in any other case, the name (including trading name) and the last known address of the PRS provider.

3

Main telephone number.

4

Main email address.

Generally authorised person

5

Specific information required from merchants

6

Where a PRS provider is a merchant, the PRS provider must also provide the following information in respect of each controlled PRS being provided to consumers—

(a) details of the name of any other PRS provider involved in the provision of that service, including for promotion and marketing of that service, and

(b) the name of any other person contracted with respect to the service, including for promotion and marketing of that service.

SCHEDULE 3 — Information to be provided before entering into a controlled PRS contract

Interpretation

1

In this Schedule—

“access charge” means the part of the charge that a consumer is required to pay— to a person providing an electronic communications service by means of which the controlled PRS in question is provided, and for making and transmitting a call comprised in the electronic communications service to the point of interconnection nearest to the origination of the call to a premium rate number at which the call may be handed over to an electronic communications network of another communications provider for conveyance;

“bill” has the meaning given in article 23(2);

“controlled PRS contract” has the meaning given in article 26(2);

“digital content” means data which are produced and supplied in digital form;

“goods” means any tangible moveable items;

“premium rate number” has the meaning given in article 3(8).

Pre-contract information

2

The information referred to in article 26(1) is—

(a) a description of any contents offered by the controlled PRS, including the main characteristics of the contents, the information that the consumer will need to make use of the contents and, where applicable, the conditions, time limit, restrictions, limitations and procedures for using the contents,

(b) a description of any offered facility comprised in the controlled PRS, including the main characteristics of the facility and, where applicable and except to the extent provided for in sub-paragraphs (c) to (e), the information that the consumer will need to make use of that facility, the conditions, time limit, restrictions, limitations and procedures for making use of the facility,

(c) where a facility for making a payment for goods, services or digital content is comprised in the controlled PRS, the information that the consumer will need to make use of that facility and, where applicable, the conditions, time limit, restrictions, limitations and procedures for making such a payment,

(d) where a facility for entering a competition or claiming a prize is comprised in the controlled PRS, the information that the consumer will need to make use of that facility (including details of any different ways of using it) and, where applicable—

(i) the conditions of entering a competition or claiming a prize,

(ii) the time limit for entering a competition or claiming a prize,

(iii) the procedures for entering a competition or claiming a prize, and

(iv) details of the prizes available for allocation, including their number and value together with any criteria, restrictions and limitations for their allocation,

(e) where a facility for registering a vote or recording a preference is comprised in the controlled PRS, the information that the consumer will need to make use of that facility (including details of any different ways of using it) and, where applicable—

(i) the conditions of registering a vote or recording a preference,

(ii) the time limit for registering a vote or recording a preference, and

(iii) the restrictions, limitations and procedures for registering a vote or recording a preference,

(f) except in the case of a controlled PRS contract to which paragraph (h) applies, the total charge payable for the provision of the controlled PRS inclusive of VAT, or where the nature of the controlled PRS is such that the charge cannot reasonably be calculated in advance, how that charge is to be calculated,

(g) where applicable, all additional charges and any other costs for or in connection with the provision of the controlled PRS including any access charge or, where those charges or costs cannot reasonably be calculated in advance, the fact that such additional charges or costs may be payable,

(h) in the case of a controlled PRS contract of indeterminate duration or a controlled PRS contract containing a subscription, the frequency with which the consumer will become liable for charges under the controlled PRS contract and the total charge payable for the provision of the controlled PRS inclusive of VAT by the consumer on each occasion or, where the charge cannot reasonably be calculated in advance, how that charge is to be calculated,

(i) an explanation that any charge payable for the provision of the controlled PRS will be imposed in the form of a charge to a bill,

(j) the name of the merchant (including any trading name),

(k) the geographical address at which the merchant is established and, if different from that address, the geographical address of the place of business of the merchant, and, where available, the merchant’s website address, telephone number and e-mail address, to enable the consumer to contact the merchant,

(l) the name of the controlled PRS offering the contents or facility referred to in paragraphs 2(a) or (b), whichever is applicable,

(m) the name and contact details of the person who is responsible on the merchant’s behalf for dealing with consumer enquiries and complaints in respect of the provision of the controlled PRS,

(n) the policies and procedures for handling consumer enquiries and complaints, and

(o) the duration of the controlled PRS contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract.

SCHEDULE 4 — Transitional arrangements for the purposes of a relevant approved code

Interpretation

1

In this Schedule—

“relevant approved code” means a code in respect of the time for which it was approved under section 121 of the Act;

“relevant enforcement authority”, in relation to a relevant approved code, means the person who under that code had the function of enforcing it.

General

2

(1) This paragraph applies where, at any time before 1st February 2025 anything has been done by or in relation to a relevant enforcement authority for the purposes of or in connection with the carrying out of its functions under the provisions of a relevant approved code.

(2) That thing is to have effect, on and after 1st February 2025, and so far as necessary for its purposes, as if it had been made or done by or in relation to OFCOM.

(3) Where the provisions of a relevant approved code have effect in accordance with this paragraph—

(a) so much of them as authorise or require anything to be done by or in relation to a relevant enforcement authority are to have effect in relation to times after 1st February 2025 as if they authorised or required that thing to be done by or in relation to OFCOM; and

(b) other references in the provisions of a relevant approved code to a relevant enforcement authority are to have effect, in relation to such times, as references to OFCOM.

Enforcement of provisions of a relevant approved code

3

(1) Subject to sub-paragraphs (2) and (3), despite the withdrawal by OFCOM of their approval for a relevant approved code in a notification given in accordance with section 121(7) of the Act, after 1st February 2025, they are authorised or required to do anything that the relevant enforcement authority was authorised or required to do for the purposes of or in connection with the carrying out of its functions under the provisions of that relevant approved code.

(2) Where the provisions of a relevant approved code provide for a relevant enforcement authority to appoint a legally qualified person (“former sole adjudicator”) or a panel of persons (“former panel”), those provisions are to have effect as if they authorised or required OFCOM to appoint—

(a) where they refer to a former sole adjudicator, a person with not less than 10 years of experience practising as a lawyer, and

(b) where they refer to a former panel, a panel of three members meeting the requirements in sub-paragraph (4),

and, accordingly, references in a relevant approved code to a former sole adjudicator or a former panel are to be read, as regards all times on and after 1st February 2025, as references to either a person referred to in paragraph (a) or a panel referred to in paragraph (b), as applicable.

(3) A person (“new sole adjudicator”) or a panel (“new panel”) so appointed by OFCOM may be appointed on an ad hoc basis and is authorised or required to do anything that the former sole adjudicator or the former panel, as applicable, was authorised or required to do for the purposes of or in connection with the carrying out of the functions under the provisions of the relevant approved code.

(4) A panel of three members meets the requirements of this sub-paragraph where the panel is established such that—

(a) it has a chair with not less than 15 years of experience practising as a lawyer to preside over it,

(b) if the members of the panel are unable to agree, they are to take any decision by majority vote,

(c) if the chair is unable to continue after the commencement of any hearing, the chair may appoint either of the remaining two members to chair the panel, and in that case the panel is to consist of the remaining two members for the rest of the proceedings,

(d) if the remaining member appointed under paragraph (c) is not a lawyer, another person must be appointed with not less than 15 years of experience practising as a lawyer to attend the proceedings and advise the remaining members on any questions of law arising,

(e) if a member of the panel (other than its chair) is unable to continue after the commencement of any hearing, the panel is to consist of the remaining two members for the rest of the proceedings, and

(f) where in accordance with either paragraph (c) or (e) the panel consists of two members, a decision of the panel must be unanimous.

(5) In this paragraph, “lawyer” means a person practising as an advocate, barrister or solicitor in any part of the United Kingdom.

Discontinuance of proceedings commenced under a relevant approved code

4

(1) This paragraph applies where—

(a) a former sole adjudicator or a former panel was appointed by a relevant enforcement authority for the purposes of or in connection with the carrying out of a function of the relevant enforcement authority under the provisions of a relevant approved code, but

(b) the function (“undischarged function”) had not been carried out immediately before 1st February 2025.

(2) Where this paragraph applies—

(a) OFCOM are not liable for anything done or omitted in the performance or purported performance of the undischarged function, unless the act or omission is shown to have been in bad faith,

(b) OFCOM may appoint a new sole adjudicator or a new panel, as applicable, for the purposes of or in connection with the carrying out afresh of the undischarged function under the provisions of the relevant approved code, and

(c) where, for the purpose or in connection with the carrying out of the undischarged function, a person made representations (whether orally or in writing) to the former sole adjudicator or the former panel, the person who made representations must be offered an opportunity to make representations before the new sole adjudicator or the new panel, as applicable.

(3) Where a new sole adjudicator or a new panel so carries out afresh the undischarged function, the powers of OFCOM under paragraphs 2 and 3 include in particular—

(a) where the function concerns an application for a review of a direction given by a relevant enforcement authority, the power to agree to or refuse the application to carry out a review in accordance with the provisions of the relevant approved code,

(b) where the function concerns an application for a review of a direction given by a relevant enforcement authority and the chair of a former panel (or, as the case may be, a former sole adjudicator) under the relevant approved code has already agreed to the application to carry out a review, the power to confirm, vary or rescind that direction in accordance with the provisions of the relevant approved code, and

(c) where the function concerns a case in which a relevant enforcement authority has not given a direction in accordance with such a code and for the purpose of enforcing its provisions, the power to give directions in accordance with the provisions of the relevant approved code.

(4) In this paragraph—

“former panel” has the meaning given in paragraph 3(2);

“former sole adjudicator” has the meaning given in paragraph 3(2);

“new panel” has the meaning given in paragraph 3(3);

“new sole adjudicator” has the meaning given in paragraph 3(3).

Signed

Lindsey Fussell — Group Director, Online Safety (Interim) — For and by the authority of the Office of Communications — 21st October 2024

I consent

Peter Kyle — Secretary of State — Department for Science, Innovation and Technology — 17th October 2024

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order introduces new provisions imposing requirements with respect to the provision and contents of certain premium rate services (so-called controlled PRS) within the meaning given by section 120(7) of the Communications Act 2003 (c. 21), and the facilities made available in the provision of such services. This Order also makes new provisions imposing requirements with respect to the arrangements made by providers of such premium rate services for the promotion and marketing of those services, and for the enforcement of requirements imposed under the Order.

Part 1 contains definitions that are used throughout the Order, including key concepts such as “controlled PRS” (article 3), “PRS provider” and “regulated activity” (article 9).

Part 2 sets out requirements to give OFCOM information described in Schedule 1 in the manner specified by them on their website at www.ofcom.org.uk. Part 2 also requires the appointment of one or more persons in senior management for purposes such as having the authority to act on behalf of a PRS provider relating to requirements imposed under the Order (so-called generally authorised person). Some PRS providers (merchants) are exempted from those requirements under article 11. Article 13 and Schedule 2 contain transitional provisions for PRS providers who were previously registered with the Phone-paid Services Authority (“PSA”). OFCOM are also required to establish and maintain a register (article 12).

Part 3 sets out a requirement for certain PRS providers to pay OFCOM’s administrative charges to recover their expenditure in connection with establishing and maintaining procedures, and other arrangements for the purposes of the requirements of the Order.

Part 4 contains provisions about applying due diligence measures to ensure that arrangements are not entered into with unregistered PRS providers or persons on whom directions, decisions or sanctions have been imposed (articles 15 and 16). Article 17 also requires PRS providers to carry out certain risk assessments. PRS providers are also required to suspend their arrangements with others under some circumstances (articles 18 and 19).

Part 5 contains requirements on some PRS providers (intermediaries) to carry out security testing in respect of their payment platforms for relevant operator billing. It also requires network operators to take some actions in some cases.

Part 6 contains various requirements relating to consumer protection. Chapter 1 prohibits misleading information. Chapter 2 deals with matters relating to the promotion and marketing of controlled PRS. Chapter 3 makes provision in respect pre-contractual information, including requirements to obtain express consent from consumers for certain controlled PRS. Chapter 4 sets out various requirements in respect of the provision of controlled PRS. Chapter 5 sets out requirements to protect vulnerable consumers (article 39) and to prohibit harmful material (article 40). Chapter 6 sets out requirements in relation to competition or voting services. Chapter 7 sets out other requirements (such as pricing restrictions) in respect of some other types of controlled PRS.

Part 7 contains additional requirements on network operators to retain payments for controlled PRS for a minimum period before they make them to another PRS provider and to keep certain records in respect of premium rate numbers.

Part 8 sets out requirements for PRS providers to provide information to OFCOM for the purpose of carrying out their functions under or by virtue of this Order.

Part 9 contains a general record-keeping requirement.

Part 10 contains provisions about enforcement, including a requirement to preserve evidence for investigation purposes (article 58), enforcement notices and civil penalties (articles 59 to 61), imposition of interim measures in specified cases (articles 62 and 63) and the giving of directions for serious contraventions (article 64). Article 66 and Schedule 4 contain transitional arrangements for the purposes of a relevant approved code.

Copies of PSA’s code of practice entitled ‘Code of Practice 2021 (Fifteenth Edition) – Code for Premium rate services’ are available online at www.psauthority.org.uk. Hard copies of that Code and relevant approved codes can be obtained free of charge by writing to the Networks and Communications Group, Office of Communications, Riverside House, 2a Southwark Bridge Road, London SE1 9HA.

A full impact assessment has not been produced for this instrument as no significant impact on the private, voluntary or public sector is foreseen. An Explanatory Memorandum is published alongside this instrument online at www.legislation.gov.uk. Hard copies can be obtained free of charge by writing to OFCOM at the address above.

Footnotes

[^f00001]: 2003 c.21. Section 403 was amended by S.I. 2020/1419. See section 120(7) of the Act for the definition of “premium rate service”.

[^f00002]: 2005 c.19.

[^f00003]: 2011 c.25.

[^f00004]: 2008 c.12.

[^f00005]: 2005 asp.10.

[^f00006]: 1971 c.80; section 1 of and Schedule 1 to that Act relate to bank holidays. Schedule 1 was amended by section 1 of the St Andrew’s Day Bank Holiday (Scotland) Act 2007 (asp 2).

[^f00007]: See section 56(1) of the Act for the definition of “National Telephone Numbering Plan”. Section 56 was amended by S.I. 2011/1210.

[^f00008]: 2005 c.19. Section 19 was amended by paragraph 105 of Schedule 7 to the Charities Act 2011 (c.25).

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