Code of Practice
Premium rate service or PRS has the meaning set out in section 120 of the Act.
Section 120(7) provides:
“A service is a premium rate service for the purposes of this Chapter if –
- it is a service falling within subsection (8);
- there is a charge for the provision of the service;
- the charge is required to be paid to a person providing an electronic communications service by means of which the service in question is provided; and
- that charge is imposed in the form of a charge made by that person for the use of the electronic communications service.”
Section 120(8) provides:
“A service falls within this subsection if its provision consists in –
- the provision of the contents of communications transmitted by means of an electronic communications network; or
- allowing the user of an electronic communications service to make use, by the making of a transmission by means of that service, of a facility made available to the users of the electronic communications service.”
Section 120(14) provides:
“References in this section to a facility include, in particular, references to –
- a facility for making a payment for goods or services;
- a facility for entering a competition or claiming a prize; and
- a facility for registering a vote or recording a preference.”
Controlled Premium Rate Service has the meaning set out in, and is to be construed in accordance with, the Condition issued by Ofcom under section 120 of the Act from time to time. At the date of publication of this Code, the Condition states that a Controlled Premium Rate Service is:
“… a Premium Rate Service (other than a service which is only accessed via an International Call or a service which is delivered by means of an Electronic Communications Service and is provided by the person who is also the provider of the Electronic Communications Service) which falls within one or more of the following categories:
- the service is obtained through a PRS Number and the Service Charge for the call by means of which the service is obtained is a rate which exceeds 5.833 pence per minute or 5.833 pence per call, exclusive of value added tax;
- the service is obtained other than through a PRS Number, and the charge for the call by means of which the service is obtained or the rate according to which such call is charged is a charge or rate which exceeds 10 pence per minute inclusive of value added tax (and which also includes, for the avoidance of any doubt, a service delivered by means of an Electronic Communications Service which is charged by means of a Payment Mechanism and for which the charge exceeds 10 pence inclusive of value added tax);
- the service is a Chatline Service;
- the service is an Information, Connection or Signposting Service;
- the service is Internet Dialler Software operated; or
- the service is a Sexual Entertainment Service.”
General conditions of entitlement means the general conditions set by Ofcom pursuant to section 45 of the Act which are applicable at the material time.
Total metering and billing system has, for the purposes of this Code, the same meaning as in Condition C3 of the general conditions of entitlement or any successor condition established by Ofcom from time to time.
A lead network is an electronic communications network provider which is obliged to obtain approval for its total metering and billing system in accordance with Condition C3 of the Ofcom general conditions of entitlement.
Subject to paragraphs D.1.5 and D.1.6 below, network operator means, for the purposes of this Code and in respect of any PRS, a person who falls within section 120(10) or 120(11) of the Act and:
- is a lead network;
- has a direct network connection and has direct billing arrangements in respect of that connection with the lead network;
- through arrangements made with a lead network, provides electronic communications services to the public and bills the public directly;
- through arrangements made with a person falling within sub-paragraphs D.1.4(a)-(c):
- provides electronic communications services to other PRS providers;
- terminates PRS calls on their platform; and
- can perform or can require the performance of the Standards and Requirements set out in Section 3 of this Code;
- if no person falls within sub-paragraphs D.1.4(a)-(d) above, the network operator shall be the person who falls within section 120(10) or 120(11) and, in respect of the PRS or the services in question, provides or has, in the reasonable opinion of the PSA, the closest or most substantial connection with the provision of the communications network used for the provision of the PRS.
A direct network connection exists when a person provides switching equipment (to currently accepted industry standards), which by interconnection arrangements made between that person and the lead network, enables the conveyance of signals between the lead network and that person.
If a PRS is provided which is accessible only through the use of Voice over Internet Protocol (VoIP) technology or in any other form so that, in respect of that service, there is no network operator identifiable under paragraph D.1.4 above, then the network operator, for the purposes of this Code, is the person who provided the facility through which the user gained access to the service.
If a person’s primary function is to aggregate or collate the content of services for third parties and/or acquire network access through wholesale arrangements which it then provides to third parties on a retail basis, that person will be treated as an intermediary provider for the purposes of this Code and not a network operator, unless there is no other identifiable network operator involved in the provision of the relevant PRS.
Any person who falls within sections 120(9)(a)-(d), 120(10) or 120(11) of the Act who is engaged in the provision of a PRS but is not a network operator in respect of that service may be an intermediary provider and/or a merchant provider.
An intermediary provider is a person who provides a platform which, through arrangements made with a network operator or another intermediary provider, enables the relevant PRS to be accessed by a consumer or provides any other technical service which facilitates the provision of the relevant PRS.
A merchant provider is the person who controls or is responsible for the operation, content and promotion of the relevant PRS and/or the use of any facility within the PRS.
In respect of any relevant PRS where the PSA considers there to be a material doubt over whether a person involved in any way in the provision of that service and/or who directly or indirectly receives any part of the charges made to the consumer for provision of that service is a PRS provider falling within paragraph D.1.8 or D.1.9 above the PSA will make a determination with reference to Procedures or guidance which it will issue from time to time.
The Act is the Communications Act 2003.
An action plan is a plan that is agreed between the PSA and the relevant PRS provider following the issue of a warning letter in order to remedy apparent breaches of the Code and prevent any repeat breaches.
An adjudication by consent is a settlement agreement between a Relevant Party and the PSA which has been formally approved by a Tribunal.
An administrative charge is a charge invoiced to a Relevant Party found to be in breach of the Code for the PSA’s relevant administrative and legal costs.
Associated individual means:
- any sole trader, partner or director or manager of a PRS provider;
- any person with significant influence or control over a PRS provider;
- any person having day-to-day responsibility for the conduct of a PRS provider’s relevant business and any individual in accordance with whose directions or instructions such persons are accustomed to act; or
- any member of a class of individuals designated and published by the PSA.
An auto-populated field is a field that is filled without any user action or intervention.
Best practice information is information published by the PSA from time to time which sets out the most effective approaches, methods or processes that PRS providers may adopt to meet consumer expectations and which go beyond the Standards and Requirements set out in the Code. The PSA may publish non-binding best practice information from time to time.
Biometric technology is technology that is capable of identifying a person based on some aspect of their biology. Examples include fingerprint and facial recognition.
The Board is the board of directors of Phone-paid Services Authority Limited.
Broadcast Services are PRS that are promoted on television and/or radio (other than through commercial advertising), however transmitted, and which provide a facility for interaction or the provision of information, whether in the form of votes, entries, bids or otherwise.
A call is any communication which passes through an electronic communications network whether initiated by a user, or initiated or facilitated by a PRS provider. Caller shall be construed accordingly.
Call TV Quiz Services are those services which broadcast output on television where the primary purpose and content of the entire output is participation in competitions by viewers. Viewers are invited to call or text a premium rate phone number to give their answer (normally either by being connected to the presenter or via a call-back), and if viewers are not selected initially, they have the option to make repeat attempts.
CAP means Code Adjudication Panel.
Chatline Service has the meaning set out in the Condition issued by Ofcom under section 120 of the Act effective from time to time.
Children are people under 16 years of age.
A complaint is a written or oral expression of dissatisfaction made by a consumer of PRS in relation to:
- a network operator, intermediary provider or merchant provider regarding the promotion, operation or content of a PRS; or
- the customer service experience that the consumer has received from a network operator, intermediary provider or merchant provider regarding the promotion, operation or content of a PRS,
and where a response or resolution is explicitly or implicitly expected.
A compliance audit is the process of conducting a thorough examination of the internal procedures that a PRS provider has in place to ensure that it is able to comply with its obligations under the Code.
Confidential information is information that relates specifically to the affairs of a particular PRS provider or associated individual, where publication of it would or might, in the PSA’s opinion, seriously and prejudicially affect the interests of that provider or individual.
A connected company or person has the meaning set out at section 993 of the Income Tax Act 2007.
A coordinated vulnerability disclosure scheme is a scheme established to enable network operators and/or intermediary providers to work cooperatively with security researchers and other relevant persons to find solutions to remove or reduce any risks associated with an identified vulnerability in their services and/or systems. Such a scheme involves the reporting of vulnerabilities to network operators and/or intermediary providers by security researchers, and the coordination and publishing of information about a vulnerability and its resolution. The aims of vulnerability disclosure within such a scheme include ensuring that identified vulnerabilities are addressed in a timely manner; removing or minimizing any risks from any identified vulnerabilities; and providing users with sufficient information to evaluate any risks arising from vulnerabilities to their systems.
A Counselling Service is a service where a caller seeks advice in relation to a personal problem such as marital, relationship, emotional and other such problems. The service may consist of actual advice as to the such problems or information as to where the caller may obtain advice.
Consumer Credit Services are services provided by PRS providers that offer and/or provide credit to consumers and which are regulated by the Financial Conduct Authority.
Data controller has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679) as enacted in the Data Protection Act 2018.
A data retention notice is a notice issued by the PSA from time to time specifying any retention period for personal data and other data requirements with which PRS providers must comply to the extent permitted by law.
A Decision is a full, written, reasoned decision made by a Tribunal or single legally qualified CAP member following an oral hearing or a determination on the papers.
DDRAC means due diligence, risk assessment and control.
The e-Commerce Directive is Directive 2000/31/EC.
The e-Commerce Regulations are the Electronic Commerce (EC Directive) Regulations 2002.
Electronic communications network has the meaning given to it in section 32(1) of the Act.
Electronic communications service has the meaning given to it in section 32(2) of the Act.
An enforcement notice is a formal notice produced by the PSA and sent to a relevant PRS provider where it decides that a case or matter should be placed before a Tribunal. The enforcement notice provides details about the service and potential breaches identified, together with any supporting evidence and a recommendation on sanctions.
An enquiry letter is an informal letter sent to any party in a PRS value chain seeking information where the PSA receives intelligence or wishes to understand compliance issues and trends.
An exemption refers to a specific category of PRS providers and/or services to which the duty to register and/or the requirement to pay a registration charge, will not apply in certain circumstances, as specified by the PSA.
A formal notification is a written notification to a Relevant Party which is given where the PSA decides that a case or matter is sufficiently serious to warrant action that is or may be likely to lead to a determination by a Tribunal or single legally qualified CAP member.
Guidance explains the PSA’s expectations with regard to certain provisions of the Code in order to assist providers in interpreting and applying those provisions, and to help facilitate compliance.
Independence and its cognates mean that a person is not controlled or influenced by any person in any way, including through officers, staff, representatives or others with significant control within, or connected to, that person.
Information Society Services are any services normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of such services (as defined in Article 1(b) of Directive 2015/1535/EU), subject to the exceptions set out in the Directive.
Interim measures refer to any directions to suspend services (i.e. suspension directions) or to take some other corrective action and/or directions to withhold certain service revenue payments (i.e. withhold directions) which may be issued by the PSA to a network operator or intermediary provider prior to a Decision on breaches of the Code and sanctions being made by a Tribunal.
An interim enforcement notice is a written notice issued to a Relevant Party by the PSA where it intends to seek a suspension direction, a withhold direction or any other direction under paragraphs 5.6.2-5.6.3 above.
Live Entertainment Services are services which allow the caller to speak live with a live operator or one or more other consumers for entertainment purposes, including, but not limited to, one-to-one Chatline (sexual or non-sexual), psychic or tarot services.
MO SMS means a mobile originating (MO) short messaging service (SMS). This is an SMS message that originates from a mobile network user’s handset.
MT SMS means a mobile terminating (MT) SMS. This is an SMS message that is received on a mobile network user’s handset.
Multi-factor authentication is an authentication method that requires two or more verification factors.
Ofcom is the Office of Communications. References to Ofcom and to any statutory authority or other regulatory body include any replacement successor bodies.
An originating network operator is a network operator falling within sub-paragraphs D.1.4(a)-(c) above.
Person means any natural or legal person.
Personal data means data which relates to an identified or identifiable natural person. Such a person might be identified or identifiable directly or indirectly, in particular from an identifier such as a name, number, online identifier or location data, or by factors relating to the person’s physical, physiological, genetic, mental, economic, cultural or social identity. This includes where a person can be identified from a combination of those identifiers and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.
A person with significant influence or control over a company is a person who:
- directly or indirectly holds more than 25% of the company’s issued share capital;
- directly or indirectly holds more than 25% of the company’s voting rights;
- directly or indirectly holds the right to appoint or remove a majority of the board of directors;
- has the right to exercise, or actually exercises, significant influence or control over the PRS provider;
- has the right to exercise, or actually exercises, significant influence or control over the activities of a trust or firm which is not a legal entity, but would itself satisfy any of sub-paragraphs (a)-(d) above if it were an individual;
- directs the activities of a PRS provider;
- can ensure that a PRS provider generally adopts the activities which they desire;
- has absolute decision rights over decisions related to the running of the business of a PRS provider;
- has absolute veto rights over decisions related to the running of the business of a PRS provider;
- has absolute veto rights over the appointment of the majority of directors, meaning those directors who hold a majority of the voting rights at meetings of the board on all or substantially all matters;
- is not a member of the board of directors but regularly or consistently directs or influences a significant section of the board, or is regularly consulted on board decisions and whose views influence decisions made by the board;
- is a company founder who no longer has a significant shareholding in the company, but who makes recommendations to the other shareholders on how to vote and those recommendations are always or almost always followed;
- otherwise falls within Part 21A and Schedule 1B to the Companies Act 2006, by reference to the statutory guidance published under paragraph 24(5) of Schedule 1A to the Companies Act 2006, or any superseding or successor legislation.
The PSA is the Phone-paid Services Authority. References in this Code to the PSA mean the employees of the PSA and/or members of the Board save where the context otherwise requires.
The PSA Register is the online registration system maintained by the PSA which contains such information about PRS providers as the PSA may require for the purpose of efficient and effective regulation of PRS.
Prior permission is written permission that may be required by the PSA before particular categories of service can be provided by a PRS provider.
Procedures are published by the PSA from time to time to provide details of the processes and criteria that the PSA will adopt, undertake and/or apply in relation to certain parts of the Code.
Professional Advice Services are services that involve the provision of specialist advice to consumers, that is, advice which requires knowledge and skill obtained through extensive study and specialised training (including, but not limited to, that required of doctors, lawyers, vets and accountants) and in relation to which membership of a professional body is normally required.
Promotion and its cognates refer to any activity where the intent or effect is, either directly or indirectly, to encourage the use of PRS. The term promotional material shall be construed accordingly.
A refund is any repayment of money to a consumer including partial repayments and repayments made without admission of fault and/or in goodwill.
A Relevant Party is a PRS provider that has received an enforcement notice.
Remote Gambling Services are services which enable gaming or betting to take place remotely, that is, delivered at a distance electronically or by voice telephony. Such services do not include prize competition or betting tipster services.
A Retention and its cognates refer to an outstanding payment due to a network operator, intermediary provider or merchant provider which has been retained by a network operator, intermediary provider or merchant provider in compliance with a PSA direction.
Requirements are enforceable obligations on PRS providers which support the PSA’s regulatory Standards.
Service charge has the meaning set out in the Condition issued by Ofcom under section 120 of the Act effective from time to time.
Sexual Entertainment Services are entertainment services of a sexual nature, or any services for which the associated promotional material is of a sexual nature, or indicates or implies directly or indirectly, that the service is or may be of a sexual nature. This includes such services that do not involve nudity or involve partial nudity.
Single point of contact (SPoC) means a nominated person(s) serving as the coordinator or focal point of information concerning various regulated activities.
Skilled persons reports are reports ordered by the PSA under paragraph 4.6 above concerning any matter relating to the provision of PRS.
Society Lottery Services are PRS services that enable consumers to participate in a “lottery” operated by, or for the benefit of, a “non-commercial society”, such terms being defined in the Gambling Act 2005.
Service-specific Requirements are additional Requirements with which network operators, intermediary providers and merchant providers of specific categories of services must comply.
Standards refer to the overarching standards that PRS providers must reach in relation to the provision of any PRS. Each Standard is underpinned by Requirements.
Subscription services are services which incur a recurring premium rate charge, irrespective of whether the charge is a regular or irregular one.
Supervision refers to the activities undertaken by the PSA under Section 4 of this Code.
A suspension direction is a direction made by a Tribunal on the application of the PSA, or by the PSA of its own motion where permitted to do so, for the suspension of all or part of a PRS.
A terminating network operator is a network operator falling within paragraph D.1.4(d) above.
A thematic review may be conducted where the PSA has reason to believe there are potential common or industry-wide issues regarding compliance with particular Standards, Requirements and/or other obligations under the Code.
Tribunals are PSA Code Adjudication Tribunals made up of members of the CAP.
VAT means Value Added Tax at the rate applicable from time to time.
Virtual Chat Services are services which do not involve live conversation but which enable two or more users to exchange separate messages, whether by recorded voice, text or pictures, while engaged in the service.
A vulnerable consumer is a consumer who is less likely to be able to make fully informed or rational decisions due to a specific characteristic, circumstance or need and may be likely to suffer detriment as a result.
A warning letter is a letter sent to a Relevant Party where it appears to the PSA that a potential breach or breaches of the Code have occurred and which sets out its concerns and any corrective action that is required.