11.1 Terms of reference
11.2 Delegation of powers
11.3 Definitions
11.1.1 The powers of PhonepayPlus in relation to this Code of Practice enable it to supervise the provision and content of promotional material for premium rate services and, with the support of Ofcom, to enforce this Code. In the performance of this role, PhonepayPlus may:
The Board may delegate its powers to sub-committees which will be formed of no fewer than two Board members.
Framework
11.3.1 Premium rate services are defined in Section 120 of the
Communications Act 2003 (‘the Act') as follows:
Subsection (7) provides:
"A service is a premium rate service if:
Subsection (8) provides:
"A service falls within this subsection if its provision consists in:
Subsection (14) provides:
"References in this section to a facility include, in particular,
references to:
11.3.2 ‘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 11 of the general conditions of entitlement.
‘A lead network' means an electronic communications network provider who is obliged to obtain approval for its total metering and billing system in accordance with Condition 11 of the general conditions of entitlement.
11.3.3 Subject to paragraphs 11.3.4 and 11.3.5 below, ‘network operator' means, for the purposes of this Code in respect of any premium rate service, a person who falls within Section 120(10) or Section 120(11) of the Act and:
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.
11.3.4 If a premium rate service is provided which is accessible only through the use of VoIP technology and, in respect of that service, there is no network operator identifiable under paragraph 11.3.3 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.
11.3.5 If the primary function of a person is to aggregate or collate content of services for third parties and/or to acquire network access through wholesale arrangements which it then provides to third parties on a retail basis, that person is a service provider for the purposes of this Code and is not a network operator, unless there is no other network operator identifiable who is involved in the provision of the relevant premium rate service.
11.3.6 ‘Service provider' is the first person who falls within Section 120(9)(a)-(d) or Section 120(10) of the Act who, not being a network operator himself, contracts with or enters into arrangements with a network operator for use of the network operator's facilities in the provision of the relevant premium rate service (3).
(3) In order to ensure clear and effective regulation, responsibility for the promotion and content of premium rate services rests with service providers. We recognise that, as set out in the Communications Act 2003, service providers can organise their businesses in numerous ways. Many provide their own content, while others package content that may be developed or marketed by others. Some service providers focus on providing connections to the phone networks and have limited involvement in the content or promotion of a service. If service providers choose to adopt a model under which immediate control of matters for which they are answerable under this Code is passed to others, they should take appropriate steps to protect their interests because they remain directly responsible for sanctions imposed by PhonepayPlus for Code breaches.
Where a network operator itself provides premium rate services in any given case in which he falls within Section 120(9)(a)-(d) as well as being the network operator in respect of the relevant service then that network operator or such part of its organisation as is responsible for the provision of the same will be a service provider for the purposes of this Code.
11.3.7 ‘Information provider' is any person falling within section 120(9) (a)-(d) of the Act, not himself being a service provider for the purpose of this Code.
11.3.8 ‘Controlled Premium Rate Service' has the meaning set out in the Condition issued by Ofcom under Section 120 of the Act effective from time to time.
General
11.3.9 ‘Adjudicator' is the person, independent of PhonepayPlus, network operators, service providers or information providers, who adjudicates upon claims for compensation in respect of unauthorised calls to live services.
11.3.10 ‘Associated individual' is any sole trader; partner in or director or manager of a service provider or information provider, anyone having day-to-day responsibility for the conduct of its 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 by PhonepayPlus.
11.3.11 ‘Call', for the purposes of this Code, means any communication which passes through an electronic communications network, whether initiated by a user or initiated by or facilitated by a service provider, and ‘caller' shall be construed accordingly.
11.3.12 ‘Chairman of the Independent Appeals Body' is the person, being a qualified solicitor or barrister of not less than 10 years' standing, appointed to be Chairman of the Independent Appeals Body.
11.3.13 ‘Chatline service' has the meaning set out in the Condition issued by Ofcom under Section 120 of the Act effective from time to time.
11.3.14 ‘Children' means people under 16 years of age.
11.3.15 ‘Children's services' are services which, wholly or in part, are aimed at or should have been expected to be particularly attractive to children.
11.3.16 ‘Communications provider' is defined in Section 405 of the Act as a person who, within the meaning of Section 32(4) of the Act, provides an electronic communications network or an electronic communications service.
11.3.17 ‘Contact and dating services' are services which enable persons who were previously unacquainted with each other to make initial contact and arrange to meet in person or otherwise continue to have contact with one another outside the service if they wish to do so.
11.3.18 ‘Directory enquiry' (‘DQ') service is a premium rate service, one of the main or advertised purposes of which is to provide callers with the telephone numbers of subscribers and/or other end-users of electronic communications services (‘end-users') by searching one or more sources of information (‘sources') (whether held in paper or electronic form, and whether held or maintained by the service provider or by any other person) using information provided by callers as to particular end-users' names and/or addresses.
11.3.19 ‘Electronic communications network' has the meaning given to it in Section 32(1) of the Act.
11.3.20 ‘Electronic communications service' has the meaning given to it in Section 32(2) of the Act.
11.3.21 ‘Independent Appeals Body' (‘IAB') is a body of persons, independent of PhonepayPlus, appointed to provide tribunals to hear appeals in respect of service providers and following oral hearings:
11.3.22 ‘Internet dialler software' is software that replaces the telephone number used by an end-user's computer that connects it to the Internet (dial-up telephone number) with a different dial-up telephone number.
11.3.23 ‘Live services' are premium rate services which involve two-way or multi-way live voice conversation.
11.3.24 ‘Ofcom' is the Office of Communications. References to Ofcom and to any statutory authority or other regulatory body include any replacement successor bodies.
11.3.25 ‘Pay-for-product services' are those, costing more than £1 in total, in which the benefit to the user is either the delivery during or consequent to the use of the service of a product or service (not itself being premium rate content) paid for wholly or in part by the user through a network operator, or the provision during the service of electronic data which the user is able to receive and store and which is not primarily intended for use on the device used for access to the service.
11.3.26 ‘Person' means any natural or legal person.
11.3.27 ‘Promotion' means anything where the intent or effect is, either directly or indirectly, to encourage the use of premium rate services, and the term promotional material shall be construed accordingly.
11.3.28 ‘Sexual entertainment services' are services of a clearly sexual nature or any services for which the associated promotional material indicates or implies that the service is of a sexual nature.
11.3.29 ‘Subscription services' are those which incur a recurring premium rate charge.
11.3.30 ‘Virtual chat services' are not live conversation services but enable two or more users to exchange separate messages, whether by recorded voice, text or pictures, while engaged in the service.