63 General duty as to telephone numbering functions
(1) It shall be the duty of OFCOM, in the carrying out of their functions under sections 56 to 62—
(a) to secure that what appears to them to be the best use is made of the numbers that are appropriate for use as telephone numbers; and
(b) to encourage efficiency and innovation for that purpose.
(2) It shall also be the duty of OFCOM, in carrying out those functions, to secure that there is no undue discrimination by communications providers against other communications providers in relation to the adoption of telephone numbers for purposes connected with the use by one communications provider, or his customers, of an electronic communications network or electronic communications service provided by another.
(3) In this section “number” has the same meaning as in section 56.
(1) General conditions may include conditions making any provision that OFCOM consider appropriate for securing that particular services are broadcast or otherwise transmitted by means of the electronic communications networks described in the conditions.
(2) A general condition containing provision authorised by this section is not (subject to subsection (4)) to require a service to be broadcast or otherwise transmitted by means of an electronic communications network unless—
(a) the service is included in the list of must-carry services; and
(b) the effect of the requirement is confined to networks by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes.
(3) That list is as follows—
(a) any service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;
(b) the Channel 3 services so far as provided in digital form;
(c) Channel 4 so far as provided in digital form;
(d) Channel 5 so far as provided in digital form;
(e) S4C Digital;
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) General conditions making provision authorised by this section in relation to a listed service must, to such extent as OFCOM consider appropriate (and subject to subsection (5))—
(a) apply the requirement to broadcast or otherwise transmit that service to every service which is an ancillary service by reference to the listed service (including, but not limited to, a service enabling access for disabled end-users) ; and
(b) provide for the listed service to be treated for the purposes of the conditions as constituting such other services comprised in or provided with that service as may be determined by OFCOM.
(5) General conditions making provision authorised by this section must also comply with all such restrictions (if any) as may be imposed by order made by the Secretary of State as to the maximum and minimum amounts, or proportions, of available capacity that are to be required by such conditions to be used in the case of a network for the broadcasting or other transmission of particular services, or descriptions of service.
(6) In making an order under subsection (5) the Secretary of State must have regard to—
(a) the objective of securing that services included in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to be applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable; and
(b) the need to secure that the amount of capacity available in the case of every network for making other services available is reasonable and, accordingly, that the burden of complying with conditions set in accordance with this section is proportionate to the public benefit to be secured by that objective.
(7) It shall be the duty of the Secretary of State from time to time to review—
(a) the list of must-carry services; and
(b) any requirements for the time being in force under this section with respect to the terms on which services must be broadcast or otherwise transmitted.
(8) Where the Secretary of State carries out such a review, he must consult the following about the matters under review—
(a) OFCOM; and
(b) such persons who, in his opinion, are likely to be affected by a modification of the list of must-carry services, or who represent any of those persons, as he thinks fit.
(9) If, on such a review, he considers it appropriate to do so, the Secretary of State may by order modify the list of must-carry services.
(10) In determining whether it is appropriate for the purposes of subsection (9) to add a service to the list of must-carry services or to remove it, the Secretary of State must have regard, in particular, to—
(a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;
(b) the extent to which the service (if it were not included in the list) would nevertheless be made available to an acceptable technical standard by means of the networks to which conditions set in accordance with this section apply;
(c) the capacity left available, after the requirements of those conditions have been complied with, for the broadcasting or other transmission of material by means of each of those networks; and
(d) the need to secure that the burden of complying with conditions so set is proportionate to the objective of securing that the services in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable.
(11) The Secretary of State may also, if (whether on such a review or in any other circumstances) he considers it appropriate to do so, by order make provision imposing requirements as to what, as between—
(a) the person providing a must-carry service, and
(b) the person providing a network by means of which it is to be provided,
are to be the terms on which the service is to be broadcast or otherwise transmitted, in pursuance of general conditions set in accordance with this section, by means of that network.
(12) An order under subsection (11) may provide for the terms to be determined by OFCOM in accordance with the provisions of the order.
(13) Before making an order under subsection (5), and before making an order under subsection (11) in a case in which there has been no review under subsection (7), the Secretary of State must consult—
(a) OFCOM, and
(b) such persons who, in his opinion, are likely to be affected by the order, or who represent any of those persons, as he thinks fit.
(14) Section 362 applies for construing this section as it applies for the purposes of Part 3.
65 Obligations to be secured by universal service conditions
(1) The Secretary of State must by order ... set out the extent to which the things falling within subsection (2) must ... be provided, made available or supplied throughout the United Kingdom.
(2) Those things are—
(a) electronic communications networks and electronic communications services;and
(b) facilities capable of being made available as part of or in connection with an electronic communications service;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A) The provision made under subsection (1) is referred to as “the universal service order”.
(2B) The universal service order may in particular say that broadband connections and services at a fixed location must be provided to any extent, but may not do so unless—
(a) it specifies the minimum download speed that must be provided by those connections and services, and
(b) the speed so specified is at least 10 megabits per second.
(2BA) The universal service order may in particular say that mobile services must be provided to any extent, but may not do so unless this appears to the Secretary of State necessary to ensure the full social and economic participation in society of qualifying end-users.
(2BB) In subsection (2BA)—
(a) “mobile services” means—
(i) broadband services provided otherwise than at a fixed location; and
(ii) telephone services provided otherwise than at a fixed location;
(b) “qualifying end-user” means an end-user who is—
(i) an individual acting for purposes other than those of a business;
(ii) a micro, small or medium-sized enterprise, as defined by Article 2(1) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises; or
(iii) a not-for-profit body.
(2BC) The universal service order may continue to contain provision setting out the extent to which any of the following things must be provided, made available or supplied throughout the United Kingdom—
(a) public pay telephone or other public voice telephony access points;
(b) particular methods of billing for electronic communications services or of accepting payment for them;
(c) directories capable of being used in connection with the use of an electronic communications network or electronic communications service;
(d) directory enquiry facilities capable of being used for purposes connected with the use of such a network or service;
(e) publicly available telephone services capable of allowing end-users to send and receive facsimile.
(2C) The universal service order may contain—
(a) guidance about matters relating to the speed to be provided by broadband connections or services at a fixed location or other characteristics of broadband connections or services that it says must be provided (as well as or, except in the case of the minimum download speed, instead of setting out any of those characteristics); and
(b) guidance about any other matters relating to those connections or services.
(3) The universal service order may contain guidance about matters relating to the pricing of things that the order says must be provided, made available or supplied, other than matters relating only to social tariffs as defined by section 72F(2).
(4) Before making or varying the universal service order, the Secretary of State must consult OFCOM and such other persons as he considers appropriate.
(5) Before making or varying the universal service order, the Secretary of State must take due account of the desirability of not favouring—
(a) one form of electronic communications network, electronic communications service or associated facility, or
(b) one means of providing or making available such a network, service or facility,
over another.
(6) In this section “public pay telephone” means a telephone available to the general public, for the use of which the means of payment may include one or more of the following—
(a) coins;
(b) credit or debit cards; and
(c) pre-payment cards, including cards for use with dialling codes.
(1) OFCOM may by regulations make provision for the designation of the persons to whom universal service conditions are to be applicable.
(2) Subject to subsection (3), those regulations are not to authorise the designation of a person other than a communications provider.
(3) The regulations may provide for a person other than a communications provider to be designated for the purposes only of conditions relating to—
(a) the supply of directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and
(b) the making available of directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.
(4) OFCOM may from time to time—
(a) review the designations for the time being in force in accordance with regulations under this section; and
(b) on such a review, consider what (if any) universal service conditions should continue to apply to each of the designated persons.
(5) The procedure to be followed in the case of every such review must be the procedure provided for in regulations made by OFCOM.
(6) Regulations made by OFCOM under this section must provide for a person’s designation as a person to whom universal service conditions are to be applicable to cease to have effect where, in any such case as may be described in the regulations, the universal service conditions applied to him are all revoked.
(7) Regulations made by OFCOM under this section providing a procedure for the designation of persons, or for the conduct of a review under subsection (4), must not provide for any procedure other than one appearing to OFCOM—
(a) to be efficient, objective and transparent; and
(b) not to involve, or to tend to give rise to, any undue discrimination against any person or description of persons.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9A) In making any regulations under this section, OFCOM must have regard to any guidance that is contained in the universal service order.
(10) Section 403 applies to the power of OFCOM to make regulations under this section.
(1) OFCOM may set any such universal service conditions as they consider appropriate for securing compliance with the obligations set out in the universal service order.
(1A) OFCOM may also set universal service conditions which apply to a designated universal service provider who proposes to make a disposal to another person of a substantial part or all of the designated universal service provider’s local access network assets.
(1B) But subsection (1A) does not apply where the disposal is made by a company to a connected company (within the meaning given by section 1122(2) of the Corporation Tax Act 2010).
(2) Universal service conditions applied to a person must include a condition requiring him to publish information about his performance in complying with the universal service conditions that apply to him.
(3) A condition set in accordance with subsection (2) must contain provision which—
(a) requires information published in accordance with it to be updated from time to time and published again; and
(b) requires information so published to satisfy the requirements that OFCOM consider appropriate for securing that it is adequate;...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) A condition set in accordance with that subsection may require the information published in accordance with it to be framed by reference to such international standards specified in the condition as OFCOM consider appropriate.
(4) A condition set in accordance with that subsection may impose requirements as to—
(a) the times at which information published in accordance with it is to be published; and
(b) the manner in which that information is to be published.
(5) Universal service conditions may impose an obligation on a person to whom they apply to do one or both of the following, if required to do so by OFCOM—
(a) to make facilities available for enabling information published in pursuance of a condition applied to that person under subsection (2) to be independently audited;
(b) to meet the costs of any independent auditing of that information that is required by OFCOM.
(6) The reference in subsection (5) to the independent auditing of information is a reference to its being audited by a qualified auditor—
(a) for accuracy; and
(b) for its usefulness in the making of comparisons with information published by other designated universal service providers.
(7) Universal service conditions may impose performance targets on designated universal service providers with respect to any of the matters in relation to which obligations may be imposed by such conditions.
(8) In setting a universal service condition, OFCOM must have regard to any guidance ... that is contained in the universal service order.
(9) In this section “qualified auditor” means a person who—
(a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and
(b) if the appointment to carry out such auditing as is mentioned in subsection (5) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).
(1) It shall be the duty of OFCOM—
(a) to keep under review universal service tariffs; and
(b) to monitor changes to those tariffs.
(2) Universal service conditions may require one or more of the following—
(a) the use of a common tariff, or of common tariffs, in relation to anything mentioned in section 65(2);
(b) the use, in such cases as may be specified or described in the conditions, of such special tariffs in relation to anything so mentioned as may be so specified or described;
(c) the fixing of tariffs used in accordance with the conditions by the use of such methods, and by reference to such methods of computing costs, as may be so specified or described.
(2A) The special tariffs that may be required by virtue of subsection (2)(b) do not include social tariffs as defined by section 72F(2).
(3) Universal service conditions must secure that the terms on which a person is provided with anything required by the universal service order do not require him—
(a) to pay for an unnecessary additional service; or
(b) to pay, in respect of anything required by the order, any amount that is attributable to the provision to him of such a service.
(4) The references in subsection (3), in relation to a person, to an unnecessary additional service are references to anything the provision of which—
(a) he has to accept by reason of his being provided, at his request, with something required by the order (“the requested service”); and
(b) is not necessary for the purpose of providing him with the requested service.
(5) It shall be the duty of OFCOM, in setting a universal service condition about universal service tariffs, to have regard to anything ascertained by them in the performance of their duty under subsection (1).
(6) References in this section to a universal service tariff are references to any of the tariffs used by designated universal service providers or, where there is no designated universal service provider, by other persons, in relation to the things for the time being required by the universal service order.
(7) References in this section to providing a person with anything include references to making it available or supplying it to him.
(8) In this section “tariff” includes a pricing structure.
(1) This section applies where universal service conditions require a designated universal service provider—
(a) to supply a directory capable of being used in connection with the use of an electronic communications network or electronic communications service; or
(b) to make available directory enquiry facilities capable of being used for purposes connected with use of such a network or service.
(2) The universal service conditions applied to the provider must include the conditions that OFCOM consider appropriate for securing that the provider does not unduly discriminate against a source of relevant information—
(a) in the compiling of the directory or the answering of directory enquiries; or
(b) in the treatment in the directory, or for the purposes of the facilities, of any relevant information from that source.
(3) In this section—
(a) references to relevant information are references to information provided for inclusion in the directory or for use in the answering of directory enquiries; and
(b) references to a source of relevant information are references to a communications provider or designated universal service provider who provides relevant information.
70 Review of compliance costs: universal service conditions
(1) OFCOM may from time to time review the extent (if any) of the financial burden for a particular designated universal service provider of complying in relation to any matter with any one or more of the universal service conditions applied to him.
(2) Where—
(a) regulations under section 66 require the financial burden of so complying to be taken into account in determining whom to designate, and
(b) the regulations provide for a particular method of calculating that burden to be used for the purposes of that determination,
that must be the method of calculation applied on a review under this section.
(3) Where subsection (2) does not apply, the financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the designated universal service provider from—
(a) his designation; and
(b) the application to him of universal service conditions.
(4) After carrying out a review under this section OFCOM must either—
(a) cause the calculations made by them on the review to be audited by a person who appears to them to be independent of designated universal service providers; or
(b) themselves carry out an audit of those calculations.
(5) OFCOM must ensure, in the case of every audit carried out under subsection (4), that a report on the audit—
(a) is prepared; and
(b) if not prepared by OFCOM, is provided to them.
(6) It shall be the duty of OFCOM, in the case of every review under this section, to publish—
(a) their conclusions on the review; and
(b) a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.
(7) The publication of anything under subsection (6) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
71 Sharing of burden of universal service obligations
(1) This section applies where OFCOM—
(a) have concluded, on a review under section 70, that complying in relation to any matter with universal service conditions imposes a financial burden on a particular designated universal service provider; and
(b) have published that conclusion in accordance with that section.
(2) OFCOM must determine, in the case of the designated universal service provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.
(3) If—
(a) OFCOM determine that it would be unfair for the designated universal service provider to bear, or to continue to bear, the whole or a part of the burden, and
(b) an application for a determination under this subsection is made to OFCOM by that provider,
OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.
(4) The making of any of the following must be in accordance with regulations made by OFCOM—
(a) a determination by OFCOM of the extent of the financial burden that exists for the designated universal service provider of complying in relation to any matter with universal service conditions;
(b) an application for the purposes of subsection (3)(b);
(c) a determination by OFCOM of whether it is or would be unfair for the designated universal service provider to bear, or to continue to bear, the burden of complying in relation to any matter with universal service conditions;
(d) a determination of the extent (if any) to which that is or would be unfair.
(5) The assessment, collection and distribution of contributions under subsection (3) is not to be carried out except in accordance with a mechanism provided for in a scheme contained in regulations made by OFCOM.
(6) It shall be the duty of OFCOM to exercise their power to make regulations under this section in the manner which they consider will secure that the assessment, collection and distribution of contributions under subsection (3) is carried out—
(a) in an objective and transparent manner;
(b) in a manner that does not involve, or tend to give rise to, any undue discrimination against particular communications providers or particular designated universal service providers, or against a particular description of them; and
(c) in a manner that avoids, or (if that is impracticable) at least minimises, any distortion of competition or of customer demand.
(7) Regulations made by OFCOM under this section may provide for a scheme containing the provision mentioned in subsection (5), and for any fund set up for the purposes of such a scheme, to be administered either—
(a) by OFCOM; or
(b) by such other person as may be specified in the regulations.
(8) A person other than OFCOM is not to be specified in regulations under this section as the administrator of such a scheme or fund unless he is a person who OFCOM are satisfied is independent of both—
(a) the persons who are designated universal service providers; and
(b) communications providers to whom general conditions are applicable.
(9) Section 403 applies to the powers of OFCOM to make regulations under this section.
72 Report on sharing mechanism: universal service obligations
(1) This section applies where regulations under section 71 provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.
(2) OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—
(a) every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in the universal service order;
(b) the market benefits for each designated universal service provider that have accrued to him during that period from his designation and from the application to him of universal service conditions; and
(c) the contribution made under section 71(3) by every person who has made a contribution during that period.
(3) The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71.
(4) Every subsequent report must be prepared in relation to the period of twelve months beginning with the end of the period to which the previous report applied.
(5) Every report under this section—
(a) must be prepared as soon as practicable after the end of the period to which it is to apply; and
(b) must be published as soon as practicable after its preparation is complete.
(6) OFCOM are not required under this section—
(a) to publish any matter that is confidential in accordance with subsection (7) or (8); or
(b) to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.
(7) A matter is confidential under this subsection if—
(a) it relates specifically to the affairs of a particular body; and
(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.
(8) A matter is confidential under this subsection if—
(a) it relates to the private affairs of an individual; and
(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.
(9) The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.
(1) The Secretary of State may direct OFCOM to review and report to the Secretary of State on any provision made, or that may be made, by the universal service order ....
(2) The Secretary of State must consult OFCOM before giving a direction under this section.
(3) The Secretary of State must publish a direction under this section.
(4) OFCOM must publish the report made by them to the Secretary of State of a review under this section.
72B Broadband download speeds: duty to give direction under section 72A
(1) The Secretary of State must give OFCOM a direction under section 72A if—
(a) the universal service order specifies a minimum download speed for broadband connections and services at a fixed location and the speed so specified is less than 30 megabits per second, and
(b) it appears to the Secretary of State, on the basis of information published by OFCOM, that broadband connections or services that provide a minimum download speed of at least 30 megabits per second are subscribed to for use in at least 75% of premises in the United Kingdom.
(2) The direction—
(a) must require OFCOM to review and report to the Secretary of State on whether it would be appropriate for the universal service order to specify a higher minimum download speed, and
(b) may also require OFCOM to review and report to the Secretary of State on any other matter falling within section 72A(1).
72C Duty to review certain tariffs that are not universal service tariffs
(1) It is the duty of OFCOM—
(a) to keep under review qualifying service tariffs, other than—
(i) universal service tariffs; or
(ii) tariffs available only to end-users who are carrying on a business; and
(b) to monitor changes to those tariffs.
(2) The reference in subsection (1) to qualifying service tariffs is a reference to the tariffs used by the providers of qualifying services.
(3) In this section—
“qualifying services” means—
broadband services at a fixed location;
telephone services at a fixed location; and
mobile services, as defined by section 65(2BB)(a);
“tariff” includes a pricing structure.
(1) The Secretary of State may direct OFCOM—
(a) to review the affordability of qualifying services for individuals on low incomes or with special social needs, with a view to considering whether to recommend to the Secretary of State the setting of a social tariff condition; and
(b) to report to the Secretary of State on the results of the review.
(2) OFCOM may in their report recommend—
(a) the setting of a social tariff condition to be applied—
(i) generally to every person providing a public electronic communications service;
(ii) generally to every person providing a public electronic communications service of a particular description specified in the report; or
(iii) to a particular person (or particular persons) specified in the report; or
(b) the modification or revocation of a social tariff condition.
(3) OFCOM may recommend the application of a social tariff condition to a particular person (or particular persons) specified in their report only in exceptional circumstances, in particular where the application of a social tariff condition to all providers of public electronic communications services of a particular description would result in an excessive administrative or financial burden on those providers, on OFCOM or on any government department.
(4) The Secretary of State may give guidance to OFCOM as to the matters to which OFCOM are to have regard—
(a) in carrying out a review under subsection (1)(a); and
(b) in making a recommendation under subsection (2).
(5) OFCOM must not recommend the setting or modification of a social tariff condition unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in section 47(2).
(6) Where section 72E does not apply to the recommendation because of subsection (2) of that section—
(a) the recommendation must relate to a social tariff condition that is to be temporary, or to a temporary modification or revocation;
(b) the recommendation must state the period for which it is proposed that the condition, or the modification or revocation, should have effect; and
(c) section 72E does not apply in relation to any recommendation by OFCOM in relation to the extension or making permanent of the temporary condition, modification or revocation.
(7) The Secretary of State may direct OFCOM to implement any recommendation made under subsection (2).
(8) The Secretary of State must publish—
(a) a direction given under subsection (1) or (7); and
(b) guidance given under subsection (4).
(9) OFCOM must publish any report made under subsection (1)(b).
(10) In this section“qualifying services” has the same meaning as in section 72C.
72E Consultation by OFCOM on proposed recommendation
(1) This section applies where—
(a) OFCOM propose to recommend the setting, modification or revocation of a social tariff condition; and
(b) the implementation of the proposed recommendation would, in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.
(2) But this section does not apply where in OFCOM’s opinion—
(a) there are exceptional circumstances; and
(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.
(3) OFCOM must publish a notification—
(a) stating that they are proposing to recommend the setting, modification or revocation of the social tariff condition specified in the notification;
(b) setting out the effect of that condition, modification or revocation;
(c) giving their reasons for proposing the recommendation; and
(d) specifying the period within which representations may be made to OFCOM about their proposal.
(4) That period must end no less than 30 days after the day of the publication of the notification.
(5) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.
(6) OFCOM must consider every representation about the proposal made to them during the period specified in the notification.
(7) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.
(1) The only provision that may be contained in a social tariff condition set under section 45 is provision requiring the use in relation to a qualifying service, in such cases as may be specified or described in the condition, of such social tariffs as may be so specified or described.
(2) For this purpose a “social tariff” is a special tariff that differs from the tariff provided under normal commercial conditions and is available to an individual who meets criteria relating to low income or special social needs.
(3) A social tariff condition may not be set, modified or revoked under section 45 except in accordance with a direction under section 72D(7).
(4) Subsection (3) does not apply to modifications that in the opinion of OFCOM—
(a) relate only to matters of administration; and
(b) are minor in character.
(5) If by virtue of subsection (4) OFCOM modify a social tariff condition under section 45 in the absence of a direction under section 72D(7), they must, when publishing a notification of the modification under section 48(1), send a copy of the notification to the Secretary of State.
(6) In this section “qualifying service” and “tariff” each has the same meaning as in section 72C.
72G Review of compliance costs: social tariff conditions
(1) OFCOM may from time to time review the extent (if any) of the financial burden for a particular communications provider of complying in relation to any matter with a social tariff condition applied to the provider.
(2) The financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the communications provider from the application to the provider of the social tariff condition.
(3) After carrying out a review under this section OFCOM must either—
(a) cause the calculations made by them on the review to be audited by a person who appears to them to be independent of the communications providers who are subject to the social tariff condition; or
(b) themselves carry out an audit of those calculations.
(4) OFCOM must ensure, in the case of every audit carried out under subsection (3), that a report on the audit—
(a) is prepared; and
(b) if not prepared by OFCOM, is provided to them.
(5) It shall be the duty of OFCOM, in the case of every review under this section, to publish—
(a) their conclusions on the review; and
(b) a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.
(6) The publication of anything under subsection (5) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
72H Sharing of burden of social tariff obligations
(1) This section applies where OFCOM—
(a) have concluded, on a review under section 72G, that complying in relation to any matter with social tariff conditions imposes a financial burden on a particular communications provider (“the social tariff provider”); and
(b) have published that conclusion in accordance with that section.
(2) OFCOM must determine, in the case of the social tariff provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.
(3) If—
(a) OFCOM determine that it would be unfair for the social tariff provider to bear, or to continue to bear, the whole or a part of the burden, and
(b) an application for a determination under this subsection is made to OFCOM by that provider,
OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.
(4) Subsections (4) to (9) of section 71 apply for the purposes of this section as if—
(a) references to the designated universal service provider were references to the social tariff provider;
(b) references to universal service conditions were references to social tariff conditions;
(c) the reference to an application for the purposes of subsection (3)(b) of that section were a reference to an application for the purposes of subsection (3)(b) of this section;
(d) references to contributions under subsection (3) of that section were references to contributions under subsection (3) of this section;
(e) references to regulations made under that section were references to regulations made under subsections (4) to (7) of that section as applied by this subsection.
72I Report on sharing mechanism: social tariff obligations
(1) This section applies where regulations made under section 71(4) to (7) as applied by section 72H(4) provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.
(2) OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—
(a) every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in a social tariff condition;
(b) the market benefits for each communications provider to whom a social tariff condition applies that have accrued to that provider during that period from the application to the provider of the social tariff condition; and
(c) the contribution made under section 72H(3) by every person who has made a contribution during that period.
(3) The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71(4) to (7) as applied by section 72H(4).
(4) Every subsequent report must be prepared in relation to the period of 12 months beginning with the end of the period to which the previous report applied.
(5) Every report under this section—
(a) must be prepared as soon as practicable after the end of the period to which it is to apply; and
(b) must be published as soon as practicable after its preparation is complete.
(6) OFCOM are not required under this section—
(a) to publish any matter that is confidential in accordance with section 72(7) or (8); or
(b) to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.
(7) The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.
73 Permitted subject-matter of access-related conditions
(1) The only conditions that may be set under section 45 as access-related conditions are those authorised by this section.
(2) Access-related conditions may include conditions relating to the provision of such network access and service interoperability as appears to OFCOM appropriate for the purpose of securing—
(a) efficiency...;
(b) sustainable competition ...; ...
(bza) the bringing into operation, where OFCOM consider it appropriate, of very high capacity networks;
(ba) efficient investment and innovation; and
(c) the greatest possible benefit for the end-users of public electronic communications services.
(3) Access-related conditions may include conditions appearing to OFCOM to be appropriate for securing that persons to whom the electronic communications code applies participate... in arrangements for—
(a) sharing the use of electronic communications apparatus; and
(b) apportioning and making contributions towards costs incurred in relation to shared electronic communications apparatus.
(3A) The power to set access-related conditions falling within subsection (3) is to be exercised for the purpose of—
(a) encouraging efficient investment in infrastructure; and
(b) promoting innovation.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4A) Access-related conditions may include conditions permitted by section 74A.
(5) Access-related conditions may include conditions containing any provision required by section 75(2).
(1) The conditions that may be set by virtue of section 73(2) include conditions which, for the purpose of securing end-to-end connectivity for the end-users of public electronic communications services provided by means of a series of electronic communications networks—
(a) impose obligations on a person controlling network access to any of those networks; and
(b) require the interconnection of the networks.
(1A) The conditions that may be set by virtue of section 73(2) also include conditions which impose such obligations on a person controlling network access to customers as OFCOM consider necessary for the purpose of securing service interoperability.
(2) The conditions that may be set by virtue of section 73(2) also include such conditions imposing obligations on a person providing facilities for the use of application programme interfaces or electronic programme guides as OFCOM consider to be necessary for securing—
(a) that persons are able to have access to such programme services provided in digital form as OFCOM may determine; and
(b) that the facility for using those interfaces or guides is provided on terms which—
(i) are fair and reasonable; and
(ii) do not involve, or tend to give rise to, any undue discrimination against any person or description of persons.
(2A) The conditions that may be set by virtue of section 73(2) also include conditions imposing on a person who provides an electronic communications network that includes a line or associated facility to which this subsection applies, or who owns such a line or associated facility, obligations for the purposes of giving to other persons such entitlements as OFCOM may from time to time direct as respects the availability and use of the line or associated facility in cases where OFCOM are satisfied that it would be economically inefficient or physically impracticable for those other persons to replicate the line or associated facility.
(2B) Subsection (2A) applies—
(a) to a line or associated facility that is—
(i) in a building, or
(ii) between the network termination point as determined by OFCOM and the first concentration or distribution point as so determined; and
(b) in a case where OFCOM consider, having regard where applicable to any analysis of a services market under section 79, that obligations imposed by virtue of paragraph (a) will not in their opinion sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, to a line or associated facility that is outside a building beyond the first concentration or distribution point to a point determined by OFCOM to be the closest point to end-users that is capable of hosting a sufficient number of end-user connections to be commercially viable for those seeking access.
(2C) OFCOM may not apply a condition authorised by virtue of subsection (2B)(b) to a person providing an electronic communications network if—
(a) the network concerned is not publicly funded and the person providing the network makes available a viable and similar alternative means of reaching end-users by providing any undertaking with access to a very high capacity network on fair, non-discriminatory and reasonable terms and conditions; or
(b) the obligations would compromise the economic or financial viability of the bringing of a new network into operation.
(2D) The conditions authorised by subsection (2A) may include provision—
(a) for securing fairness and reasonableness in the way in which requests for entitlements are made and responded to;
(b) for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions;
(c) requiring the person to whom the condition applies (“the relevant provider”) not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with the entitlements mentioned in subsection (2A);
(d) requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;
(e) requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which the relevant provider is willing to enter into a contract giving the entitlements mentioned in subsection (2A);
(f) requiring the terms and conditions on which the relevant provider is willing to enter into such a contract to include such terms and conditions as may be specified or described in the condition;
(g) requiring the relevant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which that provider is willing to enter into such a contract;
(h) imposing rules about the apportionment and recovery of costs.
(3) In this section—
“application programme interface” means a facility for allowing software to make use, in connection with any of the matters mentioned in subsection (4), of facilities contained in other software;
“electronic programme guide” means a facility by means of which a person has access to any service which consists of—
the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services; and
a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;
“end-to-end connectivity” means the facility—
for different end-users of the same public electronic communications service to be able to communicate with each other; and
for the end-users of different such services to be able, each using the service of which he is the end-user, to communicate with each other.
“line” means any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service.
(4) The matters mentioned in subsection (3), in the definition of “application programme interface”, are—
(a) allowing a person to have access to programme services;
(b) allowing a person, other than a communications provider or a person who makes associated facilities available, to make use of an electronic communications network by means of which a programme service is broadcast or otherwise transmitted;
(c) allowing a person to become the end-user of a description of public electronic communications service.
(5) This section is not to be construed as restricting the provision that may be made under section 73(2).
74A Access-related conditions in certain cases involving use of radio spectrum
(1) OFCOM may apply a condition falling within subsection (2) to a person who provides an electronic communications network (“the host network”) if it appears to OFCOM that—
(a) in a particular local area within the United Kingdom (“the relevant area”), access by end-users to electronic communications services which depend on the use of wireless telegraphy is unavailable or severely restricted;
(b) the unavailability or restriction results from the physical characteristics of the relevant area or from other characteristics of the relevant area that tend to make the bringing into operation of infrastructure uneconomic;
(c) the provider of the host network has not made network access available on fair and reasonable commercial terms and conditions to other persons providing electronic communications services; and
(d) when granting or varying the wireless telegraphy licence relating to the host network, OFCOM had made clear the possibility that a requirement to provide network access or to enter into wholesale roaming access agreements might subsequently be imposed.
(2) A condition falling within this subsection is one requiring the provider of the host network—
(a) to provide network access in relation to network elements which are not active; or
(b) to enter into wholesale roaming access agreements relating to the relevant area or any part of the relevant area, on such terms and conditions as may be specified or described in the condition, in response to a request meeting specified requirements.
(3) If OFCOM are satisfied as to the matters in subsection (1) but it appears to them that in the circumstances a condition falling within subsection (2) does not suffice to address the situation, OFCOM may also apply a condition requiring the provider of the host network to provide network access in relation to network elements which are active.
(4) The conditions authorised by subsection (2) or (3) may include any provision mentioned in subsection (2D) of section 74, reading references in that subsection to subsection (2A) of that section as references to subsection (2) or (3) of this section (as the case requires).
(5) In exercising their powers under this section, OFCOM must have regard to—
(a) the need to maximise the coverage and availability of electronic communications services throughout the United Kingdom, along major transport paths and in particular territorial areas;
(b) the desirability of significantly increasing choice, and improving the quality of service, for end-users;
(c) the desirability of promoting the efficient use of radio spectrum;
(d) the technical feasibility of network access and associated conditions;
(e) the extent of infrastructure-based and service-based competition in the market concerned;
(f) the desirability of promoting technological innovation;
(g) the need to maintain incentives for investment in infrastructure.
(6) In this section “a wholesale roaming access agreement” means an agreement between the provider of the host network and the provider of a public electronic communications service that depends on the use of wireless telegraphy (“the roaming provider”) for the purpose of enabling public electronic communications services to be provided in the relevant area to the customers of the roaming provider.
(1) This section applies to a condition set by virtue of section 73(2) or (4A) and applied to a particular person, so long as the condition remains in force, but does not apply to a condition required by section 75(2).
(2) OFCOM must within the specified period review the results of imposing the obligations in question and consider whether the condition should be modified or revoked.
(3) OFCOM must, as soon as reasonably practicable after complying with subsection (2), publish—
(a) a report on the review, and
(b) if the review concludes that the condition should be modified or revoked, a notification under section 48(1) or, where section 48A applies, section 48A(3).
(4) In this section “the specified period”, in relation to a condition, means the period of 5 years beginning with the latest of the following days—
(a) the commencement of this section;
(b) the date of the most recent notification under section 48(1) setting or modifying the condition;
(c) the date of the most recent report under subsection (3)(a) in relation to the condition.
75 Conditional access systems and access to digital services
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) It shall be the duty of OFCOM to ensure—
(a) that access-related conditions are applied to every person who provides a conditional access system in relation to a protected programme service; and
(b) that those conditions make all such provision as is required by the provision contained ... in Part I of Annex 2 to the EECC Directive (conditions relating to access to digital programme services) as it had effect immediately before IP completion day.
(2A) For the purposes of subsection (2)(b), Part 1 of Annex 2 to the EECC Directive is to be read as if—
(a) the reference to viewers and listeners in the Union were a reference to viewers and listeners in the United Kingdom;
(b) the reference to member States were a reference to OFCOM;
(c) the words “in accordance with Article 62” were omitted;
(d) in point (a), the references to Union competition law were references to any provision relating to competition that is contained in or made under an enactment.
(2B) OFCOM may also apply access-related conditions to any person who provides a conditional access system in relation to services which are not protected programme services but appear to OFCOM to be complementary to protected programme services; and those conditions may contain any provision of the kind mentioned in subsection (2)(b).
(3) In this section—
“conditional access system” means any system, facility, arrangements or technical measure under or by means of which access to programme services requires—
a subscription to the service or to a service that includes that service; or
an authorisation to view it, or to listen to it, on a particular occasion;
“protected programme service” means a programme service the programmes included in which cannot be viewed or listened to in an intelligible form except by the use of a conditional access system.
76 Modification and revocation of conditions imposed under s. 75
(1) This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).
(2) OFCOM must not give effect to a proposal to modify or revoke any of the conditions unless—
(a) they have carried out an analysis for the purpose of determining in accordance with this Chapter whether that person is or remains a person on whom SMP services conditions are capable of being imposed;
(b) they have determined in consequence of that analysis that he is not; and
(c) they are satisfied that the modification or revocation will not have an adverse effect on any or all of the matters mentioned in subsection (3).
(3) Those matters are—
(a) the accessibility to any persons of services that are for the time being included in the list of must-carry services in section 64;
(b) the prospects for effective competition in the market for programme services provided by being broadcast or otherwise transmitted in digital form; and
(c) the prospects for effective competition in the markets for conditional access systems and other associated facilities.
(4) In this section “conditional access system” has the same meaning as in section 75.
76A Information about electronic communications apparatus available for shared use
(1) OFCOM may make available to such persons as they consider appropriate information about electronic communications apparatus that in OFCOM’s opinion is suitable for shared use.
(2) OFCOM may impose such restrictions as they consider appropriate on the use and further disclosure of information made available under this section.
(1) It shall be the duty of OFCOM to secure that privileged supplier conditions containing all such provision falling within subsection (3) as they consider appropriate are applied to every public communications provider to whom this section applies.
(2) This section applies to every public communications provider who—
(a) enjoys special or exclusive rights in relation to the provision of any non-communications services; and
(b) is not such a provider in respect only of associated facilities.
(3) The provision that may be contained in a condition set under section 45 as a privileged supplier condition is any provision that OFCOM consider appropriate for any one or more of the following purposes—
(a) requiring the provider to whom it applies to keep separate accounts in relation to his public electronic communications network or public electronic communications service and other matters;
(b) requiring that provider to submit the accounts of the different parts of his undertaking, and any financial report relating to a part of that undertaking, to a qualified auditor for auditing;
(c) requiring the accounts of the different parts of his undertaking to be published;
(d) securing, by means other than the keeping of separate accounts, the structural separation of the different parts of his undertaking.
(4) OFCOM are not required under this section to apply a condition to a person where they are satisfied that that person has an annual turnover in relation to all his communications activities that is less than £45 million.
(5) Where in a case falling within subsection (4) OFCOM are not required to apply a privileged supplier condition to a person, they may apply such a condition to him if they think fit.
(6) The reference in subsection (4) to a person’s communications activities is a reference to any activities of his that consist in, or are connected with, either or both of the following—
(a) the provision of any one or more electronic communications networks;
(b) the provision of any one or more electronic communications services.
(7) The making, for the purposes of subsection (4), of—
(a) a determination of the period in respect of which a person’s annual turnover in relation to any activities is computed, and
(b) a determination of the amount in sterling of that turnover for any period,
must be in accordance with such rules as OFCOM consider to be reasonable.
(8) OFCOM must publish any rules made by them for the purposes of subsection (7) in such manner as they consider appropriate for bringing them to the attention of the persons who, in their opinion, are likely to be affected by them.
(9) In this section—
“non-communications services”, in relation to a person, means services other than those consisting in, or connected with, the provision by him of—
an electronic communications network; or
an electronic communications service;
“qualified auditor” means a person who—
is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and
if the appointment to carry out such auditing as is mentioned in subsection (3)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement);
“special or exclusive rights” has the same meaning as in Article 106 of the Treaty on the Functioning of the European Union .
78 Circumstances required for the setting of SMP conditions
(1) For the purposes of this Chapter a person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.
(2) References in this section to dominance of a market are to be construed, so far as it is appropriate to do so for the purposes of this Chapter, in the same way as the reference in section 18(1) of the Competition Act 1998 to a dominant position in a market.
(3) A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.
(4) A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Before making a market power determination, OFCOM must—
(a) identify (by reference, in particular, to area and locality) the markets which in their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and
(b) carry out an analysis of the identified markets.
(1A) In identifying or analysing a services market for the purposes of this Chapter, OFCOM must conduct a forward-looking assessment of the market, taking into account expected or foreseeable developments that may affect competition in the market.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2ZA) In identifying or analysing a services market for the purposes of this Chapter, OFCOM may have regard to EECC materials relating to market identification and analysis.
(2A) In determining whether to identify a market for the purpose of considering whether to make a market power determination, OFCOM must consider whether the criteria in subsection (2B) are met; and OFCOM may not identify that market for that purpose unless they consider that the criteria are met.
(2B) Those criteria are—
(a) that high and non-transitory structural, legal or regulatory barriers to entry are present;
(b) that there is a market structure which, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry, does not tend towards effective competition within such period as OFCOM determine to be appropriate in relation to the review;
(c) that competition law alone is insufficient adequately to address the identified market failure.
(2BA) In considering whether to make or revise a market power determination in relation to a services market, OFCOM may have regard to EECC materials relating to market analysis or the determination of what constitutes significant market power.
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The way in which—
(a) a market is to be identified for the purposes of this section, or
(b) a market power determination is to be made,
is by the publication of a notification containing the identification or determination.
(5) Notifications for the purposes of subsection (4)—
(a) may be given separately;
(b) may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or
(c) may be contained in a single notification under section 48(1) with respect to the setting or modification of an SMP condition and either—
(i) the making of the market power determination by reference to which OFCOM set or modify that condition; or
(ii) the making of that market power determination and the identification of the market in relation to which they make that determination.
(6) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.
(6A) In this section “EECC materials” means recommendations or guidelines published by the European Commission, and guidelines published by BEREC, under the Framework Directive or the EECC Directive (including those published after IP completion day).
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80 Proposals for identifying markets and for market power determinations
(1) Where section 80A applies, OFCOM must comply with the applicable requirements of that section ... before—
(a) identifying a market for the purposes of making a market power determination, or
(b) making a market power determination.
(1A) Where section 80A does not apply because of subsection (2) of that section—
(a) any identification of a market or market power determination must be temporary; and
(b) the notification published under section 79(4) containing the identification or determination must state the period for which the identification or determination is to have effect.
(1B) Where OFCOM propose to extend or make permanent any such temporary identification or determination—
(a) section 80A does not apply in relation to the proposal; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80A Consultation for market identifications and market power determinations
(1) This section applies where—
(a) OFCOM propose—
(i) to identify a market for the purposes of making a market power determination; or
(ii) to make a market power determination; and
(b) (in the case of a services market) the proposed identification or determination is in OFCOM’s opinion likely to result in the setting, modification or revocation of SMP services conditions that will have a significant impact on the market.
(2) But this section does not apply where ... in OFCOM’s opinion—
(a) there are exceptional circumstances; and
(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.
(3) OFCOM must publish a notification of what they are proposing to do.
(4) Notifications for the purposes of subsection (3)—
(a) may be given separately;
(b) may be contained in a single notification relating to both the identification of a market and the making of a market power determination in relation to that market; or
(c) may be contained in a single notification under section 48A(3) with respect to the setting or modification of an SMP condition and either—
(i) the making of the market power determination by reference to which OFCOM are proposing to set or modify that condition; or
(ii) the making of that market power determination and the identification of the market in relation to which they are proposing to make that determination.
(5) A notification under this section relating to a proposal to identify a market or to make a market power determination must—
(a) state that OFCOM are proposing to identify that market or to make that market power determination;
(b) set out the effect of the proposal;
(c) give their reasons for making the proposal; and
(d) specify the period within which representations may be made to OFCOM about their proposal.
(6) That period must be a period of not less than 30 days after the day of the publication of the notification.
(7) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM considers reasonable in those circumstances.
(8) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.
(9) OFCOM must—
(a) consider every representation about the proposal made to them during the period specified in the notification; and
(b) have regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.
(10) ... OFCOM may then give effect to the proposal, with any modifications that appear to OFCOM to be appropriate.
84 Review of services market identifications and determinations
(1) This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.
(2) OFCOM must, when required to do so by section 84A and at such other times as they may consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—
(a) reviewing market power determinations made on the basis of an earlier analysis;
(b) deciding whether to make proposals for the modification of SMP conditions set by reference to a market power determination made on such a basis.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they must revoke every SMP services condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.
(5) Before carrying out a further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out an earlier analysis.
(6) Where, on such a review, OFCOM conclude that the appropriate markets have changed—
(a) they must identify the markets they now consider to be the appropriate ones; and
(b) those markets shall be the identified markets for the purposes of the further analysis.
(7) Sections 79 to 81 apply—
(a) in relation to the identification of a services market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and
(b) in relation to the review of such a determination, as they apply in relation to the making of such a determination.
84A Timing of services market identifications and determinations
(1) This section makes provision about the exercise by OFCOM of their powers—
(a) to identify and analyse services markets;
(b) to make and review market power determinations in respect of such markets; and
(c) to set, modify and revoke SMP services conditions by reference to such determinations.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where, following the identification and analysis of a services market, OFCOM have made a market power determination in relation to it, they must ensure that within the specified period they have—
(a) carried out a further analysis of the market and reviewed the identification and determination made on the basis of the earlier analysis; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Subsection (3) applies only where the market power determination was made after 25 May 2011.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) In subsection (3), “the specified period” means the period of 5 years from the publication under section 79(4) of the notification of the market power determination made on the basis of the earlier analysis, but this is subject to subsection (8).
(8) If, in relation to an analysis and review that would otherwise be required within the period mentioned in subsection (7), OFCOM are of the opinion that exceptionally a longer period is justified, OFCOM may, by publishing a statement of the reasons for their opinion, extend the specified period by up to one additional year.
85 Review of apparatus market identifications and determinations
(1) This section applies where OFCOM have identified and analysed an apparatus market for the purposes of making a market power determination.
(2) OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—
(a) reviewing market power determinations made on the basis of an earlier analysis;
(b) deciding whether to make proposals for the modification of SMP conditions set by reference to any such market power determination.
(3) Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they shall revoke every SMP apparatus condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.
(4) Before carrying out any further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out any earlier analysis.
(5) Where on such a review OFCOM conclude that the appropriate markets have changed—
(a) they shall identify the markets they now consider to be the appropriate ones; and
(b) those markets shall be the identified markets for the purposes of the further analysis.
(6) Where on such a review OFCOM conclude that there is no person at all with significant market power in relation to the identified market—
(a) they must so inform the Secretary of State; and
(b) the Secretary of State may by order remove or restrict OFCOM’s power under this Chapter to set SMP apparatus conditions by reference to that market.
(7) Sections 79, 80, 80A and 81(1) apply—
(a) in relation to the identification of a apparatus market for the purposes of reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and
(b) in relation to the review of such a determination, as they apply in relation to the making of such a determination.
(1) OFCOM must not set an SMP services condition by a notification which does not also make the market power determination by reference to which the condition is set unless—
(a) the condition is set by reference to a market power determination which has been reviewed under section 84 and, in consequence of that review, is confirmed in the notification setting the condition; or
(b) the condition is set by reference to a market power determination made in relation to a market in which OFCOM are satisfied there has been no material change since the determination was made.
(2) OFCOM must not modify or revoke SMP services conditions applying to a person except in a case falling within subsection (3) or (4).
(3) The first case is where, for the purpose of determining whether to make the modification or revocation, OFCOM have—
(a) carried out a further analysis under section 84 of the market in question; and
(b) reviewed the market power determination for the time being in force in that person’s case.
(4) The second case is where OFCOM are satisfied that there has not—
(a) in the case of an unmodified condition, since the condition was set, or
(b) in any other case, since the condition was last modified,
been a material change in the market identified or otherwise used for the purposes of the market power determination by reference to which the condition was set or last modified.
(5) OFCOM must not modify SMP apparatus conditions applying to a person except where, for the purpose of determining whether to make the modification or revocation, they have—
(a) carried out a further analysis under section 85 of the market in question; and
(b) reviewed the market power determination for the time being in force in that person’s case.
(6) A change is a material change for the purposes of subsection (1) or (4) if it is one that is material to—
(a) the setting of the condition in question; or
(b) the modification or revocation in question.
(1) Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—
(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and
(b) apply those conditions to that person.
(2) This section applies to—
(a) a person who provides a public electronic communications network; and
(b) a person who makes available facilities that are associated facilities by reference to such a network.
(3) This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects—
(a) the provision of network access to the relevant network;
(b) the use of the relevant network; and
(c) the availability of the relevant facilities.
(3A) The assets as respects which entitlements may be given under subsection (3) include, in the case of assets which are not active, any which, although forming part of the relevant network or the relevant facilities, do not form part of the services market to which the determination relates.
(4) In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—
(a) the technical and economic viability (including the viability of other network access products, whether provided by the dominant provider or another person) , having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;
(b) the feasibility of the provision of the proposed network access;
(ba) any technological developments that, in OFCOM’s opinion, are likely to affect the design and management of the relevant network or (as the case may be) the relevant facilities;
(bb) the need to ensure that the provision of the proposed network access does not have the effect of favouring one form of technology over another in relation to the design and management of electronic communications networks;
(c) the investment made by the person initially providing or making available the network or other facility in respect of which an entitlement to network access is proposed (taking account of any public investment made);
(d) the need to secure effective competition (including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition) in the long term and to support innovative business models that support sustainable competition; and
(e) any rights to intellectual property that are relevant to the proposal; ...
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The conditions authorised by subsection (3) may include provision—
(a) for securing fairness and reasonableness in the way in which requests for network access are made and responded to; and
(b) for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions.
(5A) The SMP conditions authorised by this section also include a condition which—
(a) is of a technical or operational nature; and
(b) appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with a condition under subsection (3).
(5B) A condition falling within subsection (5A) may provide that compliance with the condition is not required unless a person on whom an entitlement is or may be conferred in pursuance of a requirement imposed by a condition under subsection (3) fulfils such technical or operational requirements as may be specified by OFCOM.
(5C) It shall be the duty of OFCOM, when setting a condition falling within subsection (5A), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.
(6) The SMP conditions authorised by this section also include one or more of the following—
(a) a condition requiring the dominant provider not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with network access to the relevant network or with the availability of the relevant facilities;
(b) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;
(c) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which he is willing to enter into an access contract;
(d) a condition requiring the terms and conditions on which the dominant provider is willing to enter into an access contract to include such terms and conditions as may be specified or described in the condition;
(e) a condition requiring the dominant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which he is willing to enter into an access contract.
(7) The SMP conditions authorised by this section also include conditions requiring the dominant provider to maintain a separation for accounting purposes between such different matters relating—
(a) to network access to the relevant network, or
(b) to the availability of the relevant facilities,
as OFCOM may from time to time direct.
(8) The SMP conditions authorised by subsection (7) include conditions imposing requirements about the accounting methods to be used in maintaining the separation.
(9) The SMP conditions authorised by this section also include (subject to section 88) conditions imposing on the dominant provider—
(a) such price controls as OFCOM may direct in relation to matters connected with the provision of network access to the relevant network, or with the availability of the relevant facilities;
(b) such rules as they may make in relation to those matters about the recovery of costs and cost orientation;
(c) such rules as they may make for those purposes about the use of cost accounting systems; and
(d) obligations to adjust prices in accordance with such directions given by OFCOM as they may consider appropriate.
(10) The SMP conditions authorised by subsection (9) include conditions requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations imposed by virtue of that subsection.
(11) Where OFCOM set a condition authorised by this section which imposes rules on the dominant provider about the use of cost accounting systems, it shall be their duty also to set, and to apply to him, an SMP condition which imposes on him an obligation—
(a) to make arrangements for a description to be made available to the public of the cost accounting system used in pursuance of that condition; and
(b) to include in that description details of—
(i) the main categories under which costs are brought into account for the purposes of that system; and
(ii) the rules applied for the purposes of that system with respect to the allocation of costs.
(12) In this section—
“access contract” means—
a contract for the provision by a person to whom this section applies to another person of network access to the relevant network; or
a contract under which the relevant facilities are made available by a person to whom this section applies to another person;
“the relevant facilities”, in relation to a person to whom this section applies, means the associated facilities made available by that person in relation to a public electronic communications network; and
“the relevant network”, in relation to such a person, means the public electronic communications network provided by him.