Search Legislation

The Electronic Communications and Wireless Telegraphy Regulations 2011

Status:

This is the original version (as it was originally made). This item of legislation is currently only available in its original format.

Communications Act 2003

This sectionnoteType=Explanatory Memorandum has no associated

50.  After section 89 insert—

Functional separation

89A.  (1)  This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

(b)that person is the provider of a public electronic communications network or a person who makes available facilities that are associated facilities by reference to such a network;

(c)it appears to OFCOM that the setting of conditions applying to the dominant provider under section 87 (and, where OFCOM think it appropriate, section 88) has failed to address competition problems identified by OFCOM in carrying out a market analysis for the purpose of setting or modifying those conditions; and

(d)OFCOM have identified important and persisting competition problems or market failures in relation to the provision of network access.

(2) OFCOM may set an SMP services condition (referred to in this section and section 89B as a “functional separation condition”) requiring the dominant provider to transfer activities relating to the provision of network access to an independently operating business entity which is a part of the dominant provider.

(3) Where a functional separation condition is imposed on the dominant provider, the products or services specified in the condition must be given to the dominant provider and to other persons—

(a)on the same timescales, terms and conditions, including those relating to price and service levels, and

(b)by means of the same systems and processes.

(4) A functional separation condition must, where relevant, specify—

(a)the precise nature and level of separation, specifying in particular the legal status of the entity to which activities are transferred;

(b)an identification of the assets of that entity and the products or services to be supplied by it;

(c)the governance arrangements (including incentive structures) to ensure the independence of the staff employed in that entity;

(d)rules for ensuring compliance with the obligations imposed by the condition;

(e)rules for ensuring transparency of operational procedures, in particular towards persons, other than the dominant provider, who in OFCOM’s opinion are likely to be affected by the condition; and

(f)a monitoring programme to ensure compliance, including a requirement for the publication of an annual report.

Functional separation conditions: consultation and notification

89B.  (1)  Where OFCOM propose to apply a functional separation condition to a person, they must submit their proposal, including the draft functional separation condition, to the European Commission.

(2) The proposal must set out—

(a)evidence justifying the conclusions mentioned in section 89A(1)(c) and (d);

(b)a reasoned assessment that there is little or no prospect of effective and sustainable infrastructure based competition within a reasonable time frame;

(c)an analysis of the expected impact of the condition on—

(i)OFCOM;

(ii)the person on whom the condition is to be imposed;

(iii)the staff of the entity to which activities are to be transferred;

(iv)the electronic communications sector as a whole;

(v)incentives to invest in the electronic communications sector, particularly with regard to the need to ensure social and territorial cohesion;

(vi)competition in the services market affected by the condition; and

(vii)other persons who in OFCOM’s opinion are likely to be affected by the condition, including, in particular, consumers; and

(d)an analysis of the reasons why a functional separation condition would be the most effective means of addressing important and persisting competition problems or market failures identified by OFCOM.

(3) OFCOM may set the functional separation condition and apply it to a person if—

(a)the Commission has approved the imposition on the person of the obligations contained in the condition, and

(b)OFCOM have considered the impact that the obligations contained in the condition and approved by the Commission are likely to have on SMP services conditions set in relation to the services markets which, in OFCOM’s opinion, will be affected by the proposed condition.

(4) A proposal for a functional separation condition is to be submitted to the European Commission under this section before OFCOM carry out a consultation under section 48A in relation to the condition.

Obligation to notify OFCOM of voluntary separation

89C.  (1)  This section applies where—

(a)OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

(b)the dominant provider is the provider of a public electronic communications network or a person who makes associated facilities available; and

(c)the dominant provider decides to transfer a substantial part or all of the dominant provider’s local access network assets to an independently operating business entity (which may be a part of the dominant provider or another person) for the purpose specified in subsection (2).

(2) That purpose is to use the assets to provide products or services to the dominant provider and to other persons—

(a)on the same timescales, terms and conditions, including those relating to price and service levels; and

(b)by means of the same systems and processes.

(3) The dominant provider must notify OFCOM of—

(a)the decision to transfer the assets;

(b)any changes to its intentions; and

(c)the taking effect of the transfer.

(4) Where OFCOM receive a notification under this section, they must, as soon as reasonably practicable, consider the impact that the transfer is likely to have on SMP services conditions set in relation to the services markets which, in OFCOM’s opinion, will be affected by the proposed transfer.

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Memorandum

Explanatory Memorandum sets out a brief statement of the purpose of a Statutory Instrument and provides information about its policy objective and policy implications. They aim to make the Statutory Instrument accessible to readers who are not legally qualified accompany any Statutory Instrument or Draft Statutory Instrument laid before Parliament from June 2004 onwards.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enactedversion that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Impact Assessments

Impact Assessments generally accompany all UK Government interventions of a regulatory nature that affect the private sector, civil society organisations and public services. They apply regardless of whether the regulation originates from a domestic or international source and can accompany primary (Acts etc) and secondary legislation (SIs). An Impact Assessment allows those with an interest in the policy area to understand:

  • Why the government is proposing to intervene;
  • The main options the government is considering, and which one is preferred;
  • How and to what extent new policies may impact on them; and,
  • The estimated costs and benefits of proposed measures.
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as made version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources