Sorry about this... this is a bit of a big post.
I haven't seen much mention of OFCOM on the various forums concerned with Phorm.
Under the
Communications Act 2003 OFCOM have the following duties;
3(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.
In particular I noted they must have regard to
3 (4) (h) the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection;
OFCOM are also given the following duty;
4 Duties for the purpose of fulfilling Community obligations
(2) It shall be the duty of OFCOM, in carrying out any of those functions, to act in accordance with the six Community requirements (which give effect, amongst other things, to the requirements of Article 8 of the Framework Directive and are to be read accordingly).
So I understand this to mean OFCOM are also responsible for implementing article 8 of
"Directive 2002/21/EC of the European Parliament and of the Council"
Under Article 8 of that Directive
3. The national regulatory authorities shall contribute to the development of the internal market by inter alia:
(a) removing remaining obstacles to the provision of electronic communications networks, associated facilities and services and electronic communications services at European level;
(b) encouraging the establishment and development of trans-European networks and the interoperability of pan-European services, and end-to-end connectivity;
(c) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;
(d) cooperating with each other and with the Commission in a transparent manner to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives.
4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:
(a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive);
(b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;
(c) contributing to ensuring a high level of protection of personal data and privacy;
(d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services;
(e) addressing the needs of specific social groups, in particular disabled users; and
(f) ensuring that the integrity and security of public communications networks are maintained.
So back to the Commications Act 2003, some other provisions;
Did BT notify OFCOM that they were going to operate the PageSense/ProxySense trials? Did they notify OFCOM that they planned to launch Webwise?
33 Advance notification to OFCOM
(1) A person shall not—
(a) provide a designated electronic communications network,
(b) provide a designated electronic communications service, or
(c) make available a designated associated facility,
unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.
Also, if we assume they did breach s.33 above, then
35 Notification of contraventions of s. 33
(1) Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, they may give him a notification under this section
... which ultimately leads to a £10,000 fine.
S.128 might also apply, given BT have abused the network twice without customer consent;
128 Notification of misuse of networks and services
(1) Where OFCOM determine that there are reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications services, they may give that person a notification under this section.
So Alex or anyone else cleverer than me (thats most of you btw) any thoughts?
Has anyone considered complaining to OFCOM yet? Am I the last person who hasn't complained to OFCOM?
Am I months behind everyone else, or have we missed a trick?
Pete.
PS Don't forget to write to Viviane Reding the European Commissioner
PPS. Richard Thomas must go. To Belgium. Preferably once he's left his job.