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The Electronic Communications and Wireless Telegraphy Regulations 2011

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Communications Act 2003

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47.  After that section insert—

Timing of services market identifications and determinations

84A.(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) Where under Article 15(1) of the Framework Directive the European Commission has adopted a revised recommendation identifying a services market not previously notified to the Commission, OFCOM must ensure that within the specified period they have—

(a)carried out any identification and analysis of markets that is necessary in consequence of the recommendation; and

(b)sent the Commission copies of any resulting proposals with respect to market identification, market power determinations and SMP services conditions.

(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; and

(b)sent the Commission copies of any resulting proposals with respect to market identification, market power determinations and SMP services conditions.

(4) Subsection (3) applies only where the market power determination was made after 25 May 2011.

(5) Where it appears to OFCOM that they are unlikely to be able to comply with the requirements of subsection (2) or (3) within the specified period, they may request assistance from BEREC under Article 16(7) of the Framework Directive.

(6) Where OFCOM request such assistance—

(a)they must inform the Commission of the request;

(b)subsection (2) or (as the case may be) (3) applies in the case in question as if the words “within the specified period” were omitted; and

(c)within 6 months of the assistance being provided they must send copies of any resulting proposals to the Commission.

(7) In this section “the specified period” means—

(a)in the case of subsection (2), the period of 2 years from the adoption of the recommendation; and

(b)in the case of subsection (3), the period of 3 years from the publication under section 79(4) of the notification of the market power determination made on the basis of the earlier analysis, subject to any extension of that period under Article 16(6)(a) of the Framework Directive.

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