Communications Act 2003, section 120

Conditions regulating premium rate services

Part 2 Networks, services and the radio spectrum

(1)OFCOM shall have the power, for the purpose of regulating the provision, content, promotion and marketing of premium rate services, to set conditions under this section that bind the persons to whom they are applied.

(2)Conditions under this section may be applied either—

(a)generally to every person who provides a premium rate service; or

(b)to every person who is of a specified description of such persons, or who provides a specified description of such services.

(3)The only provision that may be made by conditions under this section is provision requiring the person to whom the condition applies to comply, to the extent required by the condition, with—

[F476 (za)the provisions of an approved code;F476]

(a)directions given in accordance with an approved code by the enforcement authority and for the purpose of enforcing its provisions; and

(b)if there is no such code, the provisions of the order for the time being in force under section 122.

(4)The power to set a condition under this section includes power to modify or revoke the conditions for the time being in force under this section.

(5)[F477 Section 47 appliesF477] to the setting, modification and revocation of a condition under this section as [F477it appliesF477] to the setting, modification and revocation of a condition under section 45.

F478 (6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)A service is a premium rate service for the purposes of this Chapter if—

(a)it is a service falling within subsection (8);

(b)there is a charge for the provision of the service;

(c)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

(d)that charge is imposed in the form of a charge made by that person for the use of the electronic communications service.

(8)A service falls within this subsection if its provision consists in—

(a)the provision of the contents of communications transmitted by means of an electronic communications network; or

(b)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.

(9) For the purposes of this Chapter a person provides a premium rate service (“the relevant service”) if—

(a)he provides the contents of the relevant service;

(b)he exercises editorial control over the contents of the relevant service;

(c)he is a person who packages together the contents of the relevant service for the purpose of facilitating its provision;

(d)he makes available a facility comprised in the relevant service; or

(e)he falls within subsection (10), (11) or (12).

(10)A person falls within this subsection if—

(a)he is the provider of an electronic communications service used for the provision of the relevant service; and

(b)under arrangements made with a person who is a provider of the relevant service falling within subsection (9)(a) to (d), he is entitled to retain some or all of the charges received by him in respect of the provision of the relevant service or of the use of his electronic communications service for the purposes of the relevant service.

(11)A person falls within this subsection if—

(a)he is the provider of an electronic communications network used for the provision of the relevant service; and

(b)an agreement relating to the use of the network for the provision of that service subsists between the provider of the network and a person who is a provider of the relevant service falling within subsection (9)(a) to (d).

(12)A person falls within this subsection if—

(a)he is the provider of an electronic communications network used for the provision of the relevant service; and

(b)the use of that network for the provision of premium rate services, or of services that include or may include premium rate services, is authorised by an agreement subsisting between that person and either an intermediary service provider or a person who is a provider of the relevant service by virtue of subsection (10) or (11).

(13)Where one or more persons are employed or engaged under the direction of another to do any of the things mentioned in subsection (9)(a) to (d), only that other person shall be a provider of the relevant service for the purposes of this Chapter.

(14)References in this section to a facility include, in particular, references to—

(a)a facility for making a payment for goods or services;

(b)a facility for entering a competition or claiming a prize; and

(c)a facility for registering a vote or recording a preference.

(15)In this section—

Definitions used in section 120 9

OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act
premium rate service

“premium rate service” is to be construed in accordance with section 120(7);

Defined in s.151(1) · see it in the full Act
modification

“modification” includes omissions, alterations and additions, and cognate expressions are to be construed accordingly;

Defined in s.405(1) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act
electronic communications service

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
electronic communications network

(1) In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; ...

(iii)software and stored data ; and

(iv)(except for the purposes of sections 125 to 127) other resources, including network elements which are not active.

Defined in s.32(1) · see it in the full Act

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
made available

(7B) Subsection (13) of section 264 (interpretation of “made available”) applies for the purposes of sub-paragraph (7) as it applies for the purposes of that section.

Defined in Sch.12 para.3(7B) · see it in the full Act
provider

“provider”, in relation to a premium rate service, is to be construed in accordance with section 120(9) to (12), and cognate expressions are to be construed accordingly;

Defined in s.151(1) · see it in the full Act
the provision of premium rate services

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act

Cases considering section 120 4

Phonepayplus Ltd v Ashraf & Anor

[2014] EWHC 4303 (Ch) · 19 December 2014Interprets

Interpreted as part of the statutory scheme regulating premium-rate services and enabling an approved code to bind regulated persons. The section supported the enforcement authority’s role under the approved code. (see paras [1]; [28]) Used to identify OFCOM’s power to approve a code containing binding conditions for regulated persons. (see para [3]) Cited in identifying the statutory status of the enforcement authority. (see para [5]) Interpreted broadly, in its statutory and regulatory context, as covering enforcement of code provisions, including recovery of fines and administrative charges by the enforcement authority. (see paras [3]; [27]-[31])

The Independent Committee for the Supervision of Standards of Telephone Information Services v Andronikou & Ors

[2007] EWHC 2307 (Admin) · 19 September 2007Interprets

Interprets section 120 as making conditions regulating premium rate services binding on the persons to whom they apply, including conditions requiring compliance with directions under an approved code. That statutory binding effect supported enforcement of monetary obligations. (see paras [23]-[24], [32]-[34]) Interprets the reference to conditions that bind applied persons as indicating statutory binding force. This supported the conclusion that compliance with an approved code could be enforced against a communications provider. (see para [23]) Interprets section 120(3) as contemplating conditions requiring compliance with directions given under an approved code by the enforcement authority. The provision supported ICSTIS’s statutory enforcement role. (see para [23])

In the Matter of Mobigo Ltd (in liquidation)

[2022] EWHC 1349 (Ch) · 1 June 2022Defines

Confirms the statutory basis for the regulator’s enforcement role in relation to premium-rate services and its approved Code of Practice. The provision forms part of the factual regulatory framework underlying the alleged breaches. (see para [8])

What each judgment says about section 120 is in the case-law panel in the full Act.

Explanatory note

291.This section gives OFCOM the power to set conditions for the purpose of regulating the provision, content, promotion and marketing of premium rate services. Such conditions are binding on premium rate service providers and may relate only to compliance with directions given in accordance with the premium rate services code approved by OFCOM under section 121 or, in the absence of a code, the provisions of an order made by OFCOM under section 122. A premium rate service for this purpose is defined in subsections (7) and (8). Briefly, a service is a premium rate service if:

  •  it consists of the contents of communications transmitted by an electronic communications network (e.g. a product helpline or  ‘chatline’) or if it allows the user of an electronic communications service to make use, by making a transmission by means of that service, of a facility made available to the users of the service (including in particular a facility to make payments for goods and services, to enter a competition or claim a prize or to register a vote or record a preference); and

  •  there is a charge for the service, and that charge is paid to the provider of the electronic communications service by means of which the service in question is provided (e.g. through the customer’s telephone bill)

292.Under subsection (9), a person provides a premium rate service if he: -

  • provides the contents of the service, or

  • exercises editorial control over the contents of the service, or

  • packages together the content of the service for the purpose of facilitating its provision, or

  • makes available a facility comprised in that service.

293.In addition, under subsection (10), an electronic communications service provider who, by virtue of arrangements made with someone falling within any of the four categories set out at a) to d) who provides a service, is entitled to a share of the charges for the provision of that service or for the use of his electronic communications service for the purpose of that service is also taken to be a premium rate service provider. Likewise, (in accordance with subsection (11)) the provider of an electronic communications network used for the provision of a service who has an agreement relating to the use of that network for the provision of the service with a provider of the service falling within any of the four categories set out at a) to d) is taken to be a premium rate service provider, as is (under subsection 12) an electronic communications network provider whose network is used under an agreement made with a person falling within subsections (10 or (11) or with an intermediary service provider (as defined in subsection (15) ). The obligations that may be placed on a person falling within subsection (12) are limited by section 121(3) and section 122(5) (see below).

294.Conditions set under this section may apply generally to each provider of a premium rate service or individually to specified providers or providers of specified services. Sections 47 and 48 apply to the setting, modification and revocation of a condition under this section.

295.In accordance with paragraph 9 of Schedule 18, OFCOM may issue continuation notices in respect of premium rate service conditions in licences issued under section 7 of the Telecommunications Act 1984 for a transitional period before the arrangements provided by sections 120 to 124 take full effect.

All the explanatory notes for the Act

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F476S. 120(3)(za) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(1), 100(5); S.I. 2015/1630, art. 3(e) (with art. 7)
  2. F477Words in s. 120(5) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 76(a) (with Sch. 3 paras. 2, 16)
  3. F478S. 120(6) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 76(b) (with Sch. 3 paras. 2, 16)

Modifications

  1. C26Ss. 120-124 modified (31.12.2020) by The Communications Act (e-Commerce) (EU Exit) Regulations 2020 (S.I. 2020/1420), regs. 1, 2

Commencement

  1. I217S. 120 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)