Ofcom's General Conditions of Entitlement: an update, with important changes

In December 2021, Ofcom published an updated (unofficial) consolidated version of the General Conditions of Entitlement.

Ofcom describes the changes as:

Changes to A2, A3, A4, B2, C1, C2, C3, C4, C5, C6, C7 and C8 and Definitions to implement the European Electronic Communications Code with effect from 17 December 2021.

There are quite a number of changes, and bits which I have not written about before.

If you need a hand working out what applies to you, and what you need to do about it, please do get in touch.

This is not an exhaustive commentary on all changes. I have not included information here about switching; that's a subject for another blogpost.

Changes in defined terms

No more "Publicly Available Telephone Service"

The European Electronic Communications Code has replaced the defined term of PATS with a new term, "Voice Communications Service".

While "Voice Communications Service" sounds a lot broader (i.e. any service which permits voice communications), it is not.

The definition is:

a service made available to the public for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international telephone numbering plan

In other words, it remains centred on telephone numbering plans.

No more "Publicly Available Internet Access Service"

"Publicly Available Internet Access Service" is replaced by "Internet Access Service".

But, even though the defined term has dropped the "publicly available" element, to definition itself retains it:

a service made available to the public that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used

"Virtually all end points of the internet" and IPv6 remains up in the air. BEREC's most recent position is that an operator can provide connectivity to "virtually all end points of the internet" without providing IPv6.

No more "Small Business Customer" and "Domestic or Small Business Customer"

The definitions of "Small Business Customer" and "Domestic or Small Business Customer" have been replaced.

Now, there are:

  • Consumers
  • Microenterprise or Small Enterprise Customers; and
  • Not-For-Profit Customers

For example, GC C4 - complaints handling - now applies to:

any Communications Provider who provides Public Electronic Communications Services to Consumers, Microenterprise or Small Enterprise Customers or Not-For-Profit Customers.

I think it is unlikely that this will make a difference in practice to most providers.

The defined term "SME Customers" remains, and the definition is unchanged.

Consumer

any natural person who uses or requests a Public Electronic Communications Service or Bundle for purposes which are outside his or her trade, business, craft or profession;

Microenterprise or Small Enterprise Customers

Microenterprise or Small Enterprise Customer’, in relation to a Communications Provider which provides services to the public, means a Customer of that provider acting in the course of a business which is carried on by that Customer, and for which not more than 10 individuals work (whether as employees or volunteers or otherwise), but who is not himself a Communications Provider

The problem of ascertaining just how many workers a customer has remains.

Note that this definition includes volunteers.

Not-For-Profit Customer

‘Not-For-Profit Customer’, in relation to a Communications Provider which provides services to the public, means a Customer of that provider, which is a body for which no more than 10 individuals work (whether as employees or otherwise but excluding volunteers) and which, by virtue of its constitution or any enactment: (a) is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes; and (b) is prohibited from directly or indirectly distributing among its members any part of its assets (otherwise than for charitable or public purposes)

Note that this definition excludes volunteers. I can understand why, but this seems to add unnecessary complexity, and there is little a provider can do, in practice, other than asking the customer, or making a reasonable "best guess" assessment.

Emergency caller location information

There is a new requirement relating to the provision of location information when someone makes an emergency call.

In addition to everything which applied before, GC A3.5 now requires that:

in all circumstances where available, a Regulated Provider must provide handset-derived Caller Location Information.

This is to take advantage of new capabilities in (mobile) handsets, to provide more accurate location information.

Recital 290 to the EECC says:

[H]andset-based location technologies have proven to be significantly more accurate and cost effective due to the availability of data provided by the European Geostationary Navigation Overlay Service and Galileo Satellite system and other Global Navigation Satellite Systems and Wi-Fi data. Therefore, handset-derived caller location information should complement network-based location information even if the handset-derived location becomes available only after the emergency communication is set up. Member States should ensure that, where available, the handset-derived caller location information is made available to the most appropriate PSAP.

Changes to the consumer protection rules (GC Part C)

Contract requirements

Check the revised scope of GC C1.1. Check your terms are aligned with the new requirements.

There is a new exemption to GC C1.8-C1.11, C1.13, and C1.21-C1.36, for "Machine-to-Machine Transmission Services", which may be of use if you were attempting to meet the previous GCs' requirements in respect of services meeting that definition.

Contract duration

The GCs used to:

  • prohibit contracts longer than 24 months
  • require in-scope providers to offer at least one contract with a maximum term of 12 months.

The requirement to to offer at least one contract with a maximum term of 12 months remains, but there is a slight change to the 24 month maximum requirement.

GC C1.11 now says:

Regulated Providers shall not include a term in any contract, other than an Instalment Contract for a Physical Connection, with a Relevant Customer, that stipulates a Commitment Period of more than 24 months in duration.

In other words, a separation of connectivity from the "Physical Connection", in some circumstances.

There is a new requirement prohibiting automatic contract extensions where a customer buys a new handset / other terminal equipment or an additional service, in GC C1.12:

Regulated Providers shall not extend the duration of a contract for the provision of a Relevant Communications Service where a Relevant Customer subsequently purchases an additional service or Terminal Equipment, unless that Regulated Provider obtains the Relevant Customer’s Express Consent when they enter into the contract for the provision of the additional service or Terminal Equipment.

Transparency rules

The requirement to make available transparency information has changed, and GC C2.3 contains some new obligations.

You should review your existing transparency information, and check you've covered everything now required.

Provision of data to comparison sites

There is a new obligation, designed to support comparison sites, in GC C2.19-C2.20.

All providers to consumers of Internet Access Services and Number-based Interpersonal Communications Services (which includes VoIP services which can call the PSTN) are required to make available, free of charge and in open data formats, the information listed in GC C2.21.

This is:

  • the prices and tariffs of services provided against recurring or consumption-based direct monetary payments; and

  • the minimum quality of service where offered, or the Regulated Provider is required to publish such information.

There is no definition of "open data formats" but, in its Statement of October 2020, Ofcom said (at paragraph 6.108):

With respect to providers’ comments regarding the definition of open data formats (as referred to in Article 103(3)), we note that this term is not defined in the EECC. The EU Directive on open data and re-use of public sector information defines an ‘open format’ as “a file format which is platform-independent and made available to the public without any restriction that impedes the re-use of documents”. We consider that if the information were made available in a manner which meets that definition, it would also satisfy the requirements of GC 2.19. We also encourage providers to make the information available in a machine-readable format, such that software applications can identify and extract specific data from it easily.

In other words, if the relevant information is available to the public via a provider's website, that would seem to meet the basic requirement, even if extraction cannot be done automatically.

Notification of service consumption

There is a new notification requirement in GC C3.13, about telling consumers (and microenterprise or small enterprise customers, or not-for-profit customers, unless they have expressly agreed otherwise) when they hit their usage limit.

It says:

Regulated Providers shall notify their Relevant Customers when a Number-based Interpersonal Communications Service and/or Internet Access Service which is included in their tariff plan and is billed on the basis of either time or volume has been fully consumed.

Providers:

should also include information on any usage charges that the Relevant Customer will incur if they continue to use the relevant [service].

Next steps

At a minimum, it's likely that you will want to:

  • review your terms against the latest requirements. It might also be a good time for a general refresh, making sure that they meet your needs.

  • review your transparency information, including your vulnerability information, against the latest requirements.

  • look at / implementing (if needed) the new requirement around provision of information to comparison sites.

  • if you offer services with a quota, check if what you have already meets the new requirement about service consumption information

How we can help

We have plenty of experience in helping providers of all sorts of different services - including both Internet access (fixed, cellular, wireless), voice (cellular, fixed, and both number-dependent and number-independent) services - comply with their obligations under the General Conditions, including:

  • compliance checklists
  • drafting and amending contracts / terms of service
  • provision of transparency information

We can also offer audit-like services, if you want a spot-check on your compliance status, and we can work with you to remedy any issues that we find.

Just get in touch.