Section 38: USP access conditions, Postal Services Act 2011

OFCOM may impose a USP access condition on a universal service provider.

A USP access condition is a condition requiring the provider to do either or both of the following—

to give access to its postal network to other postal operators or users of postal services, and

to maintain a separation for accounting purposes between such different matters relating to access (including proposed or potential access) to its postal network as OFCOM may direct.

The provider's "postal network" means the systems and all the resources used by the provider for the purpose of complying with its universal service obligations (and, accordingly, includes arrangements made with others for the provision of any service).

OFCOM may not impose a USP access condition unless it appears to them that the condition is appropriate for each of the following purposes—

promoting efficiency,

promoting effective competition, and

conferring significant benefits on the users of postal services.

In addition, OFCOM may not impose any price controls on a universal service provider in a USP access condition unless it appears to them that the provider concerned—

might otherwise fix and maintain some or all of its prices at an excessively high level with adverse consequences for users of postal services, or

might otherwise impose a price squeeze with adverse consequences for users of postal services.

In imposing price controls in a USP access condition in connection with the giving of access to a universal service provider's postal network or to part of that network, OFCOM must have regard to such of the costs incurred in the provision of that network, or part of that network, as OFCOM consider appropriate.

In imposing price controls in a USP access condition OFCOM may—

have regard to the prices at which services are available in comparable competitive markets, and

determine what they consider to represent efficiency by using cost accounting methods.

In deciding what obligations to impose in a USP access condition in a particular case, OFCOM must (in addition to taking into account anything relevant for the purpose of performing their duty under section 29) take into account, in particular, the following factors—

the technical and economic viability, having regard to the state of market development, of installing and using facilities that would make the proposed access unnecessary,

the feasibility of giving the proposed access,

the investment made by the universal service provider concerned in relation to the matters in respect of which access is proposed,

the need to secure effective competition in the long term, and

any rights to intellectual property that are relevant to the proposal.

For the purposes of this section references to giving a person access to a provider's postal network include giving a person an entitlement to use, be provided with or become a party to any services, facilities or arrangements comprised in the postal network.

In Schedule 3—

Part 1 makes provision about the kind of matters that may be included in a USP access condition, and

Part 2 makes provision about the resolution of access disputes by OFCOM.

Section 38: USP access conditions

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