Ofcom General Condition changes coming into effect 17 June 2022

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Screenshot of the top of Ofcom's webpage for the General Conditions of Entitlement

On 17th June 2022, further changes to Ofcom's General Conditions of Entitlement take effect.

If you haven't started already, now would be a good time to:

  • check, and probably update, your terms, to make sure they conform to the new rules around contract modifications.
  • implement the pre-contractual information and pre-contractual "contract summary" rules.
  • re-train your staff, so that they are ready to deal with queries on the new changes.

Which bits of GC C1 apply to which providers / services?

Working out which bits of GC C1 applies to a provider has become even more complicated. In my view, Ofcom's textual way of describing it in the GCs does not work too well.

I can't promise that my tabular approach is any easier, but it works for me.

(M2MTS means "Machine-to-Machine Transmission Services", which are often, but not always, out of scope.)

With the exception of GC C1.12, these obligations apply to providers of public electronic communications services, and the precise scope of the obligations depends on the GCs themselves, and the new Annex to GC C1.

General Condition Customer Type
Consumers Microenterprise or Small Enterprise Customers Not-For-Profit Customers All other subscribers
C1.3 Yes, except M2MTS Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.4 Yes, except M2MTS Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.5 (inc. contract summary rules for bundle providers) Yes, except M2MTS Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.6 (inc. contract summary rules for bundle providers) Yes, except M2MTS Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.7 (inc. contract summary rules for bundle providers) Yes, except M2MTS Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.8 (inc. bundle providers) Yes, unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.9 Yes, except M2MTS No No No
C1.10 Yes, except M2MTS Yes, except M2MTS Yes, except M2MTS No
C1.11 (inc. bundle providers) Yes, unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.12 (Internet access and Number-based ICSs only, inc. bundle providers) Yes, except M2MTS Yes (except M2MTS), unless they have expressly agreed otherwise Yes (except M2MTS), unless they have expressly agreed otherwise No
C1.13 Yes, except M2MTS Yes, except M2MTS Yes, except M2MTS Yes, except M2MTS
C1.14-C1.20 (inc. bundle providers) Yes, inc. M2MTS Yes, inc. M2MTS Yes, inc. M2MTS Yes, except M2MTS
C1.21-C1.36 (exc. bundles) Yes, except M2MTS Yes, except M2MTS Yes, except M2MTS Yes, except M2MTS
C1.21-C1.36 (bundles) Yes to extent provided in the GC, except M2MTS Yes to extent provided in the GC unless they have expressly agreed otherwise, except M2MTS Yes to extent provided in the GC unless they have expressly agreed otherwise, except M2MTS Yes, except M2MTS

Pre-contractual materials

Pre-contractual information (GC C1.3 - C1.4)

Before entering into a contract with a customer, a provider in scope of GCs C1.3 - C1.4 must provide the contractual information set out in the Annex to GC C1. This information varies according to the type of service.

They must do it in a clear in a clear and comprehensible manner.

They must provide it on a durable medium or, where this is not feasible, in an "easily downloadable document", and the provider must:

expressly draw the attention of the Relevant Customer to the availability and the importance of downloading such document.

According to GC C1.7, this information becomes "an integral part of the contract" and cannot be changed "unless the parties to the contract expressly agree otherwise".

If a customer requires a different format because of their disabilities, in addition to obligations under general law (e.g. Equality Act 2010), GC C5.16 requires a provider to make available, free of charge, this information in a format appropriate to the reasonable needs of the customer.

Pre-contractual Contract Summary (GC C1.5 - C1.7)

Before entering into a contract with a customer, a provider in scope of GCs C1.5 - C1.7 must provide the customer with a "contract summary", and obtain the customers express consent to enter into the contract after they receive the contract summary.

The provider must do this free of charge.

If a provider does not meet the requirements of this condition, the (purported) contract with the customer is not effective. This could be particularly problematic if the provider has incurred installation or other fees, and it turns out that the customer is not on the hook for them.

According to GC C1.7, this contract summary becomes "an integral part of the contract" and cannot be changed "unless the parties to the contract expressly agree otherwise".

If a customer requires a different format because of their disabilities, in addition to obligations under general law (e.g. Equality Act 2010), GC C5.16 requires a provider to make available, free of charge, the contract summary in a format appropriate to the reasonable needs of the customer.

So what must the contract summary contain?

According to the glossary in the GCs, a "contract summary" is:

the information required and set out in accordance with the contract summary template specified by the European Commission under Commission Implementing Regulation (EU) 2019/2243 of 17 December 2019 establishing a template for the contract summary to be used by providers of publicly available electronic communications services pursuant to Directive (EU) 2018/1972.

Catchy.

You can find the official template here. It is reasonably basic, but has some useful accompanying notes.

No changes to GC C1.8 - C1.13

Just for completeness!

Revised rules on contract modifications (C1.14 - C1.20)

Ofcom's rules around contract modifications have changed quite a lot over the years, and the test of "material detriment" has never been overly popular.

This latest set of changes removes the test of material detriment, but introduces additional complexity at the same time.

In essence, the new rules are:

  • The provider must give at least one month's notice for any changes except those listed below. The provider must give the notice in a clear and comprehensible manner and on a durable medium. The provider does not need to notify changes which are are either or both:
    • exclusively to the benefit of that customer, are of a purely administrative nature, and which have no negative effect on the customer; or
    • are directly imposed by law.
  • At the same time as giving notice of a modification, the provider must:
    • inform the customer of their right to terminate their contract at no additional cost other than the charges set out in GC C1.16 (summarised below), and expressly without any early termination charge (GC C1.17); and
    • allow the customer to terminate the contract(s) subject to the contractual modification - and to terminate any contract(s) forming part of a bundle with that contract or those contracts - within one month after notification.
  • The charges a provider can levy on a terminating customer are:
    • the service fee(s) for the period ending on the day on which the relevant contract is terminated; and
    • a terminal equipment fee, in the context of a bundle which includes terminal equipment. The words "which the customer chooses to retain" suggests that a customer could choose to return the terminal equipment, at so pay nothing further in respect of it.
  • If a customer exercises their right to terminate, unless they agree otherwise, the contract is terminated on the day before the proposed modification comes into effect or, if that is not feasible, as soon as is reasonable possible after that date.

Need a hand revisiting your terms, or implementing this?

If you don't have capacity within your own organisation to amend your terms to reflect these changes, or you just want a hand to make sure you get the detail right, please do get in touch.