1 General provisions
2 Timetable
3 Budget and activity plan
4 Forecasting
5 Levy
6 Payments
7 Late payment
8 Adjustments
9 Auditors
10 No identifiable outpayment
1.1 Information obtained by PhonepayPlus under these provisions shall be confidential, save that PhonepayPlus may share it with Ofcom to the extent that is reasonable for the proper regulation of premium rate services.
1.2 For the purposes of these funding provisions, the following definitions shall apply:
2.1 PhonepayPlus will publish a timetable for its annual budgetary and forecasting procedures as set out below. It will specify the dates by which various activities should be carried out by network operators and/or PhonepayPlus.
2.2 PhonepayPlus may, upon giving reasonable notice to interested parties, vary some or all of the dates set out in the timetable.
3.1 As far as is practicable, by 31 December each year, PhonepayPlus will publish a proposed budget and activity plan for wide consultation and scrutiny.
3.2 Having considered the comments received under paragraph 3.1, PhonepayPlus will review and then present its proposed budget and activity plan to Ofcom for comment within such a period of time as PhonepayPlus may specify.
3.3 After receiving comments from Ofcom, PhonepayPlus will make such amendments to the proposed budget and activity plan as are necessary to secure Ofcom approval.
3.4 PhonepayPlus will then announce its budget for the forthcoming financial year, specifying the amount it intends to collect (‘the
Budgeted Figure’).
4.1 Subject to paragraph 4.3 below, network operators must, in accordance with the timetable, provide PhonepayPlus with a forecast of the value of outpayments (gross of the levy – see Section 5 below) that each of them anticipates making in or for the forthcoming financial year.
4.2 If a network operator fails to provide a forecast in accordance with paragraph 4.1 above, PhonepayPlus may issue a direction to the network operator requiring the provision of a forecast and/or may make its own forecast of the outpayments likely to be made by the relevant network operator during the forthcoming financial year. This will be based on such information as PhonepayPlus may have concerning the network operator’s outpayments in previous years, information received from other network operators and PhonepayPlus’ own knowledge of the industry.
4.3 Where a network operator intends to provide premium rate services over its electronic communications network and has not previously done so, the network operator is not obliged to provide forecasts pursuant to paragraph 4.1 above.
5.1 PhonepayPlus will determine the proportion of every outpayment
that needs to be retained and paid to PhonepayPlus (‘the levy’).
PhonepayPlus may from time to time vary the rate at which the levy is set to ensure that it continues to receive adequate funding to carry out its activities.
5.2 PhonepayPlus will advise network operators (in writing) and other interested parties (by publication on its website) of the levy to be applied to outpayments from time to time and issue directions accordingly. The levy will be expressed as the proportion of each outpayment that must be retained (e g. 0.XX pence per £1).
5.3 Following receipt of notification under paragraph 5.2 above, network operators must inform everyone to whom they make outpayments of the level at which the levy has been set and that they (the network operator) will deduct the levy at source from every outpayment that is made and pay the deducted amount to PhonepayPlus.
5.4 Network operators are responsible for deducting the levy notified under paragraph 5.2 from every outpayment that they make. Where a network operator fails to deduct the levy, the network operator will remain liable to PhonepayPlus as though it had in fact deducted the levy.
6.1 In accordance with the timetable, PhonepayPlus will advise each network operator whose outpayments for the forthcoming year have been forecast under Section 4 of this Annex of the total amount that the network operator is expected to collect in the forthcoming financial year by the application of the levy notified for the time being under paragraph 5.2 (“its Contribution”).
6.2 Each network operator’s contribution will be calculated by multiplying its forecasted outpayments for the forthcoming year by the applicable levy for the time being (e.g. £1,000,000 x 0.XX).
6.3 Upon being advised of its contribution by PhonepayPlus pursuant to paragraph 6.1 above, a network operator must pay its contribution to PhonepayPlus by 12 equal monthly instalments payable by the last day of each month commencing on the following 31st March. Wherever possible, network operators should arrange to make payments by electronic transfer.
6.4 Where a network operator falls within paragraph 4.3 above, the network operator will make payments to PhonepayPlus calculated by multiplying its actual outpayments by the applicable levy each month during the balance of the first year of service provision.
6.5 All invoices provided by PhonepayPlus to network operators will add a charge for VAT.
6.6 All network operators must provide PhonepayPlus with quarterly reports upon the actual levels of outpayments that they are making as soon as is reasonably practicable following 30th June, 30th September, 31st December and 31st March.
6.7 Network operators may, in exceptional circumstances, seek PhonepayPlus’ agreement to a recalculation of their forecasts and the consequential payments required of them under paragraph 6.3 above.
7.1 If a network operator fails to pay to PhonepayPlus monies due in accordance with the timescales set out in this Code and/or in accordance with directions issued by PhonepayPlus, the network operator will be liable to pay interest in respect of such monies at the rate of 3% above the prevailing base rate for the time being of HSBC plc from the date on which the relevant payment became due.
8.1 At the end of each year and in any event by no later than 30th April, network operators must provide PhonepayPlus with a statement of the actual aggregate outpayments that they have made, and the revenue that they have received in their capacity as a network operator during the preceding year. The statement must identify all cases in which the network operator has provided premium rate services in respect of which there is no identifiable outpayment (see Section 10 of this Annex). Where it has supplied no such services, the network operator must state this in the statement.
8.2 Following receipt of the statement referred to in paragraph 8.1 above or an auditors’ report pursuant to paragraph 9.1 below, PhonepayPlus will determine in respect of each network operator the aggregate amount that ought to have been collected pursuant to paragraph 5.4 above and the aggregate amount that has been paid pursuant to Section 6 of this Annex by that network operator.
8.3 Where a network operator’s payment to PhonepayPlus based on forecast outpayments exceeds actual outpayment levels, the network operator will be entitled to have the excess amount repaid. PhonepayPlus will recalculate this sum based on information provided under paragraph 8.2 above.
8.4 Where PhonepayPlus concludes, pursuant to paragraph 8.2, that a network operator ought to have collected an amount in excess of that actually paid to PhonepayPlus, the network operator will be liable to PhonepayPlus for the difference which will be payable forthwith.
8.5 PhonepayPlus will not make a calculation pursuant to paragraph 8.2 in respect of a network operator which has not provided a declaration of its actual outpayments for the entire year pursuant to paragraph 8.1 above.
9.1 The PhonepayPlus auditor for the time being (‘the Auditors’) shall have the power to request from a network operator direct confirmation by audited statement of the actual level of outpayments it made and the actual revenue it retained in respect of premium rate services supplied by it as a network operator during any relevant period. A network operator’s auditors must provide such a statement within such reasonable time as the Auditors may request and/or PhonepayPlus may direct.
9.2 Network operators will not be subject to a request under paragraph 9.1 above more than once in every four years, save where previous audited statements have revealed significant inconsistencies or where information provided to or obtained by PhonepayPlus or the Auditors may give the Auditors cause for concern.
9.3 A network operator or a network operator’s auditors shall, at the request of the Auditors, supply such further information and/or explanation of such matters as the Auditors may consider necessary to satisfy themselves as to the accuracy of the network operator’s figures in such a format as may be prescribed (including by further statement).
9.4 If an auditors’ report obtained under paragraph 9.1 above indicates that the actual outpayments made by a network operator during the relevant year were different from those declared under paragraph 8.1 above, the Auditors will make such adjustments as are necessary pursuant to Section 8.
9.5 If the Auditors advise it to be necessary for the proper administration of this part of the Code, PhonepayPlus may direct that a network operator subjects itself to assessment by an agreed independent auditor for the purpose of establishing whether the network operator has fully complied with its obligations under this part of the Code. The costs of any such assessment shall be borne by PhonepayPlus unless the independent auditor concludes that the network operator was not in all material respects complying with its obligations under this part of the Code or where the independent auditor was unable to reach any conclusion because of non-co-operation by the network operator, in which case the costs will be borne by the network operator.
9.6 Where an audit conducted under paragraphs 9.1 or 9.5 above has revealed material inconsistencies in the information previously supplied to PhonepayPlus by a network operator, PhonepayPlus may take enforcement action under Section 9 of the Code.
10.1 Where PhonepayPlus has received notification under paragraph 8.1 above that a network operator has supplied service(s) for which there is no identifiable outpayment, it may direct the relevant network operator to explain the reasons for the lack of any identifiable outpayment(s) and/or to supply details of the level of revenue it has generated in respect of those services.
10.2 If PhonepayPlus considers it appropriate to do so, it will direct the network operator to treat the revenue it has generated in respect of such service(s) or such a portion of that revenue as PhonepayPlus may determine as though it were in fact an outpayment.
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