Dispute between Whistl and Royal Mail concerning terms offered in response to a new access service request

On 13 September 2023, Ofcom issued a confidential version of its Provisional Conclusions to Whistl and Royal Mail. We did not publish a non-confidential version at that time while we were considering confidentiality representations relating to Whistl’s commercial interests.

Following engagement with the parties, we have today published a non-confidential version of our Provisional Conclusions (PDF, 613.8 KB) regarding this dispute.

The period for interested parties, excluding Whistl and Royal Mail, to provide comments on the Provisional Conclusions will close at 5pm on 3 October 2023. The deadline for Whistl and Royal Mail remains 5pm on 27 September 2023.

Please email responses to enforcement@ofcom.org.uk. or alternatively you can send responses to:

Enforcement Team
Ofcom
Riverside House
2A Southwark Bridge Road
London
SE1 9HA

Further information on how to respond is set out in the annexes 1 and 2 of the Provisional Conclusions.

Ofcom has today issued a confidential version of its Provisional Conclusions to Whistl and Royal Mail. The period for Whistl and Royal Mail to provide comments on the Provisional Conclusions will close at 5pm on 27 September 2023.

We have not published a non-confidential version of the Provisional Conclusions at this stage while we are considering confidentiality representations relating to Whistl’s commercial interests. If we consider that publication would seriously prejudice Whistl’s interests, as per paragraph 5.38 of the Dispute Resolution Guidelines, we may decide not to publish a non-confidential version.

We will update this bulletin again shortly setting out our decision and if we do publish a non-confidential version of the Provisional Conclusions, we will provide a period of 10 working days for interested parties to comment.

Royal Mail has the only significant letter delivery network in the UK, but access regulation allows other parties to collect and sort bulk mail before handing it over to Royal Mail for delivery. Bulk mail is mail that is sent in large volumes, typically by big organisations such as banks or utilities.

Ofcom’s access regime requires Royal Mail to offer access, on reasonable request, to its postal network for bulk mail. Royal Mail has some commercial and operational flexibility to set the terms, conditions and charges of its access services, subject to some important safeguards (see the Universal Service Provider Access condition (PDF, 318.3 KB), “USPA”). These include requirements on Royal Mail to:

• Provide access on fair and reasonable terms, conditions and charges; and
• Not unduly discriminate, and to restrict its use of information obtained in connection with giving access.

This dispute concerns allegations by Whistl, in relation to its new access service request for a tracked large letter service, that Royal Mail offered terms that were not fair and reasonable. In particular, Whistl raised concerns about:

1. Royal Mail’s planned treatment of the costs associated with meeting its obligation, under the access condition, not to disclose information it would obtain from Whistl through the provision of the requested access service; and
2. Royal Mail’s rejection of a proposed information disclosure waiver from Whistl which would, in Whistl’s view, enable Royal Mail to avoid such costs.

Ofcom recognises that on the face of the referral, there appears to be a dispute between the parties that commercial negotiations have failed to resolve.

Ofcom considers that there is an access dispute between the parties within the meaning of Schedule 3, paragraph 13 of the Act. Ofcom further considers that the dispute meets the relevant statutory criteria, and it is appropriate for Ofcom to handle it according to the Act. Accordingly, Ofcom has accepted to handle the dispute for resolution.

Scope of the dispute

After consideration of the submissions received from Whistl and Royal Mail, the scope of the dispute is to determine:

1. whether Royal Mail can pass on the costs of complying with its obligations under access condition USPA 5.3 to Whistl via the charges that Whistl would pay for the tracked large letter service it has requested; and
2. whether access condition USPA 5.4(b) allows Whistl to consent in writing to the disclosure or use of information Royal Mail would obtain as a result of providing the tracked large letter service that has been requested by Whistl such that access condition USPA 5.3 does not apply in the context of providing that service.

Procedural matters

In line with Ofcom’s Guidance on the resolution of disputes published in June 2011, Ofcom is not consulting on the scope of this dispute. Ofcom’s guidelines can be found at: Ofcom's Guidelines for the handling of regulatory disputes (PDF, 276.7 KB) and the supplement to Ofcom’s guidelines for the handling of postal disputes can be found at: Dispute Resolution for postal disputes (PDF, 50.7 KB). In accordance with the guidelines, Ofcom intends to issue its decision on this dispute within four months.