Code of Practice
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6. Additional powers, responsibilities and obligations
The following provisions apply on any occasion when the PSA considers it to be necessary and proportionate to direct any PRS provider to disclose information or documents in order to achieve one or more of the purposes of supervision as set out at paragraph 4.2.4 above or for the purposes of engagement and enforcement under Section 5 above:
- To the extent permitted by law and subject to the confidentiality provisions set out at paragraph 1.6 above, the PSA may direct any PRS provider to disclose any relevant information or documents within a reasonable time period that may be specified by the PSA. The PSA may also specify the format in which the information or documents must be disclosed.
- Where a direction is made under this paragraph, the relevant PRS provider must disclose the requested information to the PSA as well as any information that is reasonably likely to have a regulatory benefit in furtherance of the PSA’s general functions in regulating the provision, content, promotion and marketing of PRS.
- Where a direction is made pursuant to this paragraph, the relevant PRS provider must not knowingly or recklessly conceal or destroy the information or documents requested.
In particular, but without limitation, paragraph 6.1.1 above may be used by the PSA to direct the provision of information or documents as part of the conduct of thematic reviews or engagement activities under paragraphs 4.3.1(e) and 4.3.1(g) respectively, or in order to ensure compliance with the funding provisions in Section 7 of this Code.
In any direction made under paragraph 6.1.1 above as part of the conduct of thematic reviews, the PSA will provide brief reasons as to why it considers that the information or documents requested are necessary and proportionate for one or more of the purposes set out at paragraph 4.2.4 above.
PRS providers must not knowingly or recklessly provide false or misleading information to the PSA (either by inclusion or omission).
All PRS providers must:
- act on any direction, instruction, notice or request for information given by the PSA in accordance with the Code. Where the PSA specifies a timeframe for action or response, that timeframe must be adhered to or an extension promptly requested in writing setting out the reasons why an extension should be granted. Any such extension will be granted only where PSA considers that there are good reasons to do so.
- not give any undertaking to consumers, suppliers, other PRS providers or other persons which precludes, or might preclude, any information being given to the PSA in confidence.
Any failure to comply with any requirement of this paragraph 6.1 will constitute a breach of the Code.
Network operators shall not make, and shall withhold, payments due to any PRS provider for a period of at least 30 days after the use of the PRS to which the payments relate.
Where the PSA so directs, in accordance with the provisions of this Code, all payments must be retained for a period in excess of 30 days.
The PSA may direct any network operator which pays money to any PRS provider, in contravention of paragraphs 6.2.1 and/or 6.2.2 above, to pay to the PSA an amount not exceeding the amount of any fines, administrative charge or refunds imposed on the relevant PRS provider, which have not been paid by, or on behalf of, that provider when due. This paragraph applies without prejudice to any other action which might be taken by the PSA against the relevant network operator.
The amount payable by the network operator to the PSA under paragraph 6.2.3 above shall not exceed the amount that should have been withheld or retained by the network operator in accordance with the Code.
Where required by the PSA network operators must supply the PSA without delay such information as it may require for the purpose of establishing that they meet the definition of a network operator under paragraph D.1.4 of this Code.
Network operators must maintain a record of PRS numbers which, having been allocated or exported to them, are subsequently exported by them to another network operator or over which they cease to have control for any reason. On request and without delay, network operators must supply to the PSA the name of the network operator to which any PRS number falling within this paragraph has been exported or which has control over it. If known, network operators must also supply to the PSA the name of the merchant provider using the relevant PRS number.
If a network operator provides any part of a PRS which has a direct impact on consumers, whether in respect of its promotion or otherwise, the network operator shall be responsible for compliance with this Code in relation to the functions it performs in respect of that PRS.
If, pursuant to an engagement carried out under section 5 of the Code, the PSA considers that a network operator is involved in a breach of the Code in relation to its own functions in respect of a premium rate service, then the PSA may raise a breach of the Code against that network operator and proceed against it. It shall be treated in all respects concerning that breach of the Code as though it was a merchant provider.
If an intermediary provider provides any part of a PRS which has a direct impact on consumers, whether in respect of its promotion or otherwise, the intermediary provider shall be responsible for compliance with this Code in relation to the functions it performs in respect of that PRS.
If, pursuant to an investigation carried out under section 5 of the Code the PSA considers that an intermediary provider is involved in a breach of the Code in relation to its own functions in respect of a PRS then the PSA may raise a breach of the Code against that intermediary provider and proceed against it. It shall be treated in all respects concerning that breach of the Code as though it was a merchant provider.
Merchant providers shall be responsible for any breach of the provisions of this Code in respect of the provision of the relevant PRS, except where paragraph 6.2.7 or 6.2.9 above applies.
Before promoting or providing services, merchant providers must have readily available all documentary and other evidence necessary to substantiate any factual claims made in its promotional material. This material, together with a statement outlining its relevance to the factual claim in question must be provided without delay if requested by the PSA.
Where certain PRS phone number ranges, shortcodes or other means of access to services have been designated by either Ofcom or a network operator for use only for particular purposes or for the provision of particular categories of service, or where Ofcom or a network operator has restricted certain PRS number ranges, shortcodes or other means of access to services from being used for particular purposes or for the provision of particular categories of service, those number ranges, shortcodes or means of access must not be used in contravention of the applicable restrictions. Ofcom’s designations will have precedence over any conflicting designations issued by a network operator.
The PSA may, in relation to any category of PRS, including those set out in paragraph 6.2.15 below, specify:
- the service charges which may be spent per call or calls taken together in any 24-hour period or monthly billing cycle;
- the permitted duration for a call or calls to a service in any specified time period; and/or
- the actions which must be taken at specified intervals, or after specified service charges or specified call durations have been reached, including but not limited to:
- the provision of spend or call duration reminders;
- the immediate termination of the service after provision of a spend or call duration reminder unless the consumer positively confirms a wish to continue to use the service; and/or
- the immediate termination of the service.
The service categories to which paragraph 6.2.14 above refers include:
- Sexual Entertainment Services;
- Virtual Chat Services;
- Live Entertainment Services (including Sexual Entertainment Services);
- Chatline Services;
- Remote Gambling Services;
- Professional Advice Services;
- Counselling Services;
- Subscription Services;
- Services aimed at, or which could be reasonably expected to be particularly attractive to, children; and
- Information, Connection and Signposting Services.
Any service charge, call duration or action specified under paragraph 6.2.14 must be fair and proportionate.
Before any service charge, call duration or action is specified under paragraph 6.2.14 above, the PSA will consider all factors that are relevant and within its reasonable contemplation, consulting relevant stakeholders and considering all representations made about the proposal within the specified consultation period.
Any reference to compliance with the provisions of this Code shall include compliance with all specified service charges, call durations and actions set by the PSA under paragraph 6.2.14 above. A breach of any specified service charge, call duration or action set under that paragraph shall constitute a breach of the Code.
The list of all such specified service charges, call durations and actions, and the service categories to which they relate, will be set out at Annex 1 to this Code and may also be published on the PSA’s website.
To the extent permitted by law, PRS providers must comply with any data retention notice issued by the PSA, including (but not limited to) any data retention periods specified therein. The data retention notice may include requirements to retain consumers’ personal data and other types of data relating to services provided and DDRAC. The PSA may amend or update the data retention notice from time to time.
Any failure to comply with the data retention notice will constitute a breach of the Code.
The PSA has established a CAP consisting of a minimum of nine and a maximum of 17 members. Throughout the entire duration of their membership, CAP members must not have any commercial interest in the PRS sector. The CAP will comprise:
- a Chair of the CAP, who shall be a qualified barrister or solicitor with not less than 15 years of relevant experience;
- up to three but no less than two legally qualified members, who are qualified barristers or solicitors with not less than 10 years of relevant experience; and
- up to 13 but no less than six lay members with adjudicatory and relevant marketing, technical, operational, consumer-based or other experience.
The Chair of the CAP will be appointed by the Board, and will advise the Board as required on Tribunal activity, trends and related matters. The legally qualified members and lay members will be appointed by the Board in consultation with the Chair of the CAP.
The Board has delegated to the CAP the functions of adjudicating alleged breaches of the Code and reviewing determinations made by the PSA in relation to prior permission, including the imposition of conditions upon which prior permission is granted.
For the purposes of paragraph 6.4:
- the term ‘amend’ and its cognates include additions, removals or variations of any provision of the Code or any provision contained in any other instrument that forms part of the Code by virtue of a provision thereof; and
- ‘provision’ means any paragraph of the Code, including any sub-paragraph.
The PSA may amend a provision or a set of related provisions of the Code and/or any other instrument that forms part of the Code by virtue of a provision thereof, subject to paragraphs 6.4.3–6.4.4 below.
Before a provision of the Code can be amended in accordance with paragraph 6.4.2 above, the PSA must publish its amendment proposals along with written reasons and any relevant evidence for public consultation and scrutiny.
Having considered any comments received following a consultation conducted in accordance with paragraph 6.4.3 above, the PSA will review its amendment proposals and submit them to Ofcom for comment and approval.
Paragraphs 6.4.3 and 6.4.4 above shall not apply where an amendment is required as a result of changes in applicable law, or where minor clarification is required which does not alter the substance and meaning of a provision. Where any amendment is made under this paragraph, the PSA will publish its details in such manner as the PSA considers appropriate for bringing it to the attention of persons who, in the PSA’s opinion, are likely to be affected by the amendment.