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Part 2U.K.Networks, services and the radio spectrum

Chapter 1U.K.Electronic communications networks and services

PreliminaryU.K.

32Meaning of electronic communications networks and servicesU.K.

(1)In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; F1...

(iii)software and stored data[F2; and

(iv)(except for the purposes of sections 125 to 127) other resources, including network elements which are not active.]

[F3(2)In this Act “electronic communications service” means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service.

(2A)Those types of service are—

(a)an internet access service;

(b)a number-based interpersonal communications service; and

(c)any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting.

(2B)In subsection (2A)(a) “internet access service” means a service that provides access to the internet and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used.]

[F4(3)In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a)making the provision of that network or service possible;

(b)making possible the provision of other services provided by means of that network or service; or

(c)supporting the provision of such other services.]

(4)In this Act—

(a)references to the provision of an electronic communications network include references to its establishment, maintenance or operation;

(b)references, where one or more persons are employed or engaged to provide the network or service under the direction or control of another person, to the person by whom an electronic communications network or electronic communications service is provided are confined to references to that other person; and

(c)references, where one or more persons are employed or engaged to make facilities available under the direction or control of another person, to the person by whom any associated facilities are made available are confined to references to that other person.

(5)Paragraphs (a) and (b) of subsection (4) apply in relation to references in subsection (1) to the provision of a transmission system as they apply in relation to references in this Act to the provision of an electronic communications network.

(6)The reference in subsection (1) to a transmission system includes a reference to a transmission system consisting of no more than a transmitter used for the conveyance of signals.

(7)In subsection (2) “a content service” means so much of any service as consists in one or both of the following—

(a)the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;

(b)the exercise of editorial control over the contents of signals conveyed by means of a such a network.

(8)In this section references to the conveyance of signals include references to the transmission or routing of signals or of parts of signals and to the broadcasting of signals for general reception.

(9)For the purposes of this section the cases in which software and stored data are to be taken as being used for a particular purpose include cases in which they—

(a)have been installed or stored in order to be used for that purpose; and

(b)are available to be so used.

(10)In this section “signal” includes—

(a)anything comprising speech, music, sounds, visual images or communications or data of any description; and

(b)signals serving for the impartation of anything between persons, between a person and a thing or between things, or for the actuation or control of apparatus.

Textual Amendments

Commencement Information

I1S. 32 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I2S. 32 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F532AMeaning of number-based interpersonal communications serviceU.K.

(1)In this Chapter “number-based interpersonal communications service” means an interpersonal communications service which—

(a)connects with publicly assigned numbering resources, namely a number or numbers in a national or international numbering plan, or

(b)enables communication with a number or numbers in a national or international numbering plan.

(2)In subsection (1), “interpersonal communications service” means a service which enables direct interpersonal and interactive exchange of information by means of electronic communications networks between a finite number of persons, where the persons initiating or participating in the communication determine its recipient.]

Textual Amendments

Notification by providersU.K.

33Advance notification to OFCOMU.K.

(1)A person shall not—

(a)provide a designated electronic communications network,

(b)provide a designated electronic communications service, or

(c)make available a designated associated facility,

unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.

(2)An electronic communications network, electronic communications service or associated facility is designated for the purposes of this section if it is of a description of networks, services or facilities that is for the time being designated by OFCOM as a description of networks, services or facilities for which notification under this section is required.

(3)A person who has given a notification for the purposes of subsection (1) must, before—

(a)providing or making available the notified network, service or facility with any significant differences, or

(b)ceasing to provide it or to make it available,

give a notification to OFCOM of the differences or (as the case may be) of his intention to cease to provide the network or service or to make the facility available.

(4)A notification for the purposes of this section must—

(a)be sent to OFCOM in such manner as OFCOM may require; and

(b)contain all such information as OFCOM may require.

(5)The only information OFCOM may require a notification to contain is—

(a)a declaration of the relevant proposal of the person giving the notification[F6, including a short description of the network, service or facility];

(b)the time when it is intended that effect should be given to the relevant proposal;

(c)particulars identifying the person giving the notification[F7, including the person’s legal status and, in the case of a body corporate, details of its incorporation];

[F8(ca)the address of the person’s main establishment and, if that is outside the United Kingdom, of any secondary establishment in the United Kingdom;

(cb)the person’s website address, where applicable, associated with the provision of electronic communications networks or services;]

(d)particulars identifying one or more persons with addresses in the United Kingdom who, for the purposes of matters relating to the notified network, service or facility, are authorised to accept service at an address in the United Kingdom on behalf of the person giving the notification;

F9(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) [F10and (d)].

(6)The declaration of the relevant proposal that may be required under subsection (5) is whichever of the following is appropriate in the case of the person giving the notification—

(a)a declaration of his proposal to provide the network or service described in the notification or to make available the facility so described;

(b)a declaration of his proposal to make the modifications that are so described of the network, service or facility specified in the notification; or

(c)a declaration of his proposal to cease to provide the network or service so specified or to cease to make available the facility so specified.

F11(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The reference in subsection (3) to providing or making available a notified network, service or facility with significant differences is a reference to continuing to provide it, or to make it available, after a change in whatever falling within subsection (5)(a) to (f) was last notified to OFCOM under this section.

(10)References in this section to accepting service at an address are references—

(a)to accepting service of documents or process at that address; or

(b)otherwise to receiving notifications at that address;

F13....

(11)Where a description of electronic communications network, electronic communications service or associated facility is designated for the purposes of this section at a time when a network, service or facility of that description is already being provided or made available by a person—

(a)that person’s obligation under this section to give a notification before beginning to provide or make available that network, service or facility shall have effect as an obligation to give a notification within such period after the coming into force of the designation as may be specified in the notice in which the designation is contained; and

(b)that notification is to be one stating that that person is already providing the network or service, or making the facility available (rather than that it is his intention to do so).

(12)Subsection (11) has effect subject to any transitional provision—

(a)which is contained in the notification setting out the designation; and

(b)treats a person as having given the notification required by that subsection.

Textual Amendments

Commencement Information

I3S. 33 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I4S. 33 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

34Designations and requirements for the purposes of s. 33U.K.

(1)Before—

(a)making or withdrawing a designation for the purposes of section 33, or

(b)imposing or modifying a requirement under subsection (4) of that section,

OFCOM must consult such of the persons who, in their opinion, are likely to be affected by it as they think fit.

(2)Before making or withdrawing a designation for the purposes of section 33 OFCOM must also consult the Secretary of State.

(3)The way in which a designation for the purposes of section 33 or a requirement under subsection (4) of that section—

(a)is to be made or imposed, or

(b)may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the designation, requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(4)A designation for the purposes of section 33 may be framed by reference to any such description of networks, services or facilities, or such other factors, as OFCOM think fit.

(5)Requirements imposed under section 33(4) may make different provision for different cases.

Commencement Information

I5S. 34 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I6S. 34 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

35Notification of contraventions of s. 33U.K.

(1)Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, they may give him a notification under this section.

(2)A notification under this section is one which—

(a)sets out the determination made by OFCOM; F14...

[F15(b)specifies the contravention in respect of which the determination has been made;

(c)specifies the period during which the person notified has an opportunity to make representations;

(d)specifies information to be provided by the person to OFCOM; and

(e)specifies any penalty which OFCOM are minded to impose in accordance with section 35A.]

F16(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)A notification under this section—

(a)may be given in respect of more than one contravention of section 33; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(9)Where a notification under this section has been given to a person in respect of a contravention of section 33, OFCOM may give a further notification in respect of the same contravention if, and only if—

(a)the subsequent notification is in respect of so much of a period during which the contravention in question was continuing as falls after a period to which the earlier notification relates; or

(b)the earlier notification has been withdrawn without a penalty having been imposed by reference to the notified contravention.

F17(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I7S. 35 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I8S. 35 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F1835A.Penalties for contravention of section 33U.K.

(1)This section applies where a person is given a notification under section 35 which specifies a proposed penalty.

(2)Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3)Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4)But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a)the giving of a confirmation decision under section 36(4)(c) which requires immediate action; or

(b)the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5)The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—

(a)appropriate; and

(b)proportionate to the contravention in respect of which it is imposed.

(6)The amount of any other penalty specified in a notification under section 35 is to be such amount not exceeding £10,000 as OFCOM determine to be—

(a)appropriate, and

(b)proportionate to the contravention in respect of which it is imposed.

(7)The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (6).

(8)No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments

36 [F19Confirmation decision] for contravention of s. 33U.K.

(1)This section applies where—

(a)a person (“the notified provider”) has been given a notification under section 35;

(b)OFCOM have allowed the notified provider an opportunity of making representations about the notified determination; and

(c)the period allowed for the making of the representations has expired.

[F20(2)OFCOM may—

(a)give the notified provider a decision (a “confirmation decision”) confirming the imposition of requirements in accordance with the notification under section 35; or

(b)inform the notified provider that they are satisfied with the notified provider’s representations and that no further action will be taken.

(3)OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of section 33.]

[F21(4)A confirmation decision—

(a)must be given to the person without delay;

(b)must include reasons for the decision;

(c)may require immediate action by the person to comply with requirements imposed by virtue of section 35(2)(d), or may specify a period within which the person must comply with those requirements; and

(d)may require the person to pay—

(i)the penalty specified in the notification under section 35, or

(ii)such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.]

(5)It shall be the duty of a person to whom [F22a confirmation decision] has been given to comply with [F23any requirement imposed by it] .

(6)That duty shall be enforceable in civil proceedings by OFCOM—

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(c)for any other appropriate remedy or relief.

[F24(7)A penalty imposed by a confirmation decision—

(a)must be paid to OFCOM; and

(b)if not paid within the period specified by them, is to be recoverable by them accordingly.]

Textual Amendments

Commencement Information

I9S. 36 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I10S. 36 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F2537Penalties for contravention of s. 33U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I11S. 37 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I12S. 37 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Administrative charges imposed on providersU.K.

38Fixing of chargesU.K.

(1)A person who, at any time in a charging year, is a person to whom this section applies shall—

(a)in respect of the network, service or facility provided or made available by him,

(b)in respect of the application to him of a universal service condition relating to matters mentioned in section 66(3),

(c)in respect of the application to him of an SMP apparatus condition, or

(d)in respect of the application of the electronic communications code in his case,

pay to OFCOM the administrative charge (if any) that is fixed by them for the case that is applicable to him.

(2)This section applies to a person at a time if, at that time, he is—

(a)providing an electronic communications network of a description which is, at that time, designated for the purposes of this section;

(b)providing an electronic communications service of a description which is, at that time, so designated;

(c)making available an associated facility of a description which is, at that time, so designated;

(d)a person who without being a communications provider is designated in accordance with regulations under section 66;

(e)a supplier of apparatus to whom an SMP apparatus condition applies; or

(f)a person in whose case the electronic communications code applies by virtue of a direction given under section 106 otherwise than for the purposes of the provision by him of an electronic communications network of a designated description.

(3)OFCOM are not to fix the administrative charge for a charging year unless—

(a)at the time the charge is fixed there is in force a statement by OFCOM of the principles that OFCOM are proposing to apply in fixing charges under this section for that year; and

(b)the charge is fixed in accordance with those charging principles.

(4)Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make—

(a)that, on a year by year basis, the aggregate amount of the charges payable to OFCOM is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out the functions mentioned in subsection (5);

(b)that the cost of carrying out those functions is met by the imposition of charges that are objectively justifiable and proportionate to the matters in respect of which they are imposed;

(c)that the relationship between meeting the cost of carrying out those functions and the amounts of the charges is transparent;

(d)that the charges fixed for persons who are liable to charges by reason only of being persons to whom SMP apparatus conditions apply are referable only to things done in, or in connection with, the setting, modification or enforcement of SMP apparatus conditions or the carrying out of the functions mentioned in subsection (6)(l); and

(e)that the charges fixed for persons who are liable to charges by reason only of being persons falling within subsection (2)(f), are referable only to costs incurred in, or in connection with, the carrying out of the functions mentioned in subsection (6)(g) and (l).

(5)Those functions are—

(a)the relevant Chapter 1 functions;

(b)the carrying out for a Chapter 1 purpose of any research by OFCOM or the Consumer Panel into any of the matters mentioned in section 14(1)(c) to (f);

(c)the publication under section 26 of any information or advice that it appears to OFCOM to be appropriate to make available to the persons mentioned in subsection (2)(a) to (c) of that section; and

(d)the function of taking any steps that OFCOM consider it necessary to take—

(i)in preparation for the carrying out of any of the functions mentioned in paragraphs (a) to (c) of this subsection; or

(ii)for the purpose of facilitating the carrying out of those functions or otherwise in connection with carrying them out.

(6)The relevant Chapter 1 functions are—

(a)OFCOM’s functions under sections 33 to 37 and 44;

(b)the setting, modification and enforcement of conditions under section 45;

(c)the supervision, as respects the requirements of sections 33 to 37 and of any such conditions, of communications providers and of persons who make associated facilities available;

(d)the monitoring of compliance with those requirements and with any such conditions;

(e)the functions conferred on OFCOM by or under section 55;

[F26(ea)their functions under sections 93A to 93D;

(eb)the monitoring of compliance with commitments that are made binding by a commitments decision;

F27(ec). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F28(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)their functions under sections 106 to 119;

(h)their functions under sections 185 to 191;

(i)securing international co-operation in relation to the regulation of electronic communications networks, electronic communications services and associated facilities;

(j)securing the harmonisation and standardisation of the regulation of electronic communications networks, electronic communications services and associated facilities;

(k)market analysis and any monitoring of the controls operating in the markets for electronic communications networks, electronic communications services and associated facilities;

(l)OFCOM’s functions under this section and sections 39 to 43.

(7)A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is the purpose of ascertaining the effectiveness of one or more of the following—

(a)the regulation of the provision of electronic communications networks or electronic communications services;

(b)the regulation of the making available of associated facilities;

(c)the mechanisms in place for the handling, by communications providers and by persons making such facilities available, of complaints made to them by consumers in markets for such services or facilities;

(d)the mechanisms in place for resolving disputes between such consumers and communications providers or persons who make such facilities available.

(8)OFCOM’s power to fix charges for a particular case includes—

(a)power to provide that the charges in that case are to be equal to the amounts produced by a computation made in the manner, and by reference to the factors, specified by them;

(b)power to provide for different charges to be imposed in that case on different descriptions of persons; and

(c)power to provide for particular descriptions of persons falling within subsection (2)(d) to (f) to be excluded from the liability to pay charges in that case.

(9)As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement setting out, in respect of that year—

(a)the aggregate amounts of the administrative charges for that year that have been received by OFCOM;

(b)the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and

(c)the cost to OFCOM of carrying out the functions mentioned in subsection (5).

(10)Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (9) shall be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (4)(a) in relation to the following year.

(11)Section 34 applies in relation to the making and withdrawal of a designation for the purposes of this section as it applies to the making and withdrawal of a designation for the purposes of section 33.

[F29(11A)For the purposes of this section, the cost to OFCOM of carrying out the functions mentioned in subsection (5) does not include the cost to OFCOM of doing anything for which they charge a fee under section 28A.]

(12)In this section “charging year” means—

(a)the period beginning with the commencement of this section and ending with the next 31st March; or

(b)any subsequent period of twelve months beginning with 1st April.

Textual Amendments

Commencement Information

I13S. 38 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I14S. 38 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

39Supplemental provision about fixing chargesU.K.

(1)OFCOM’s power to fix a charge under section 38—

(a)is to be exercisable only by the publication or giving of such notification as they consider appropriate for bringing the charge to the attention of the persons who, in their opinion, are likely to be affected by it; and

(b)includes power, by setting it out in that notification, to fix the time at which the charge is to become due to OFCOM.

(2)A charge fixed under section 38 for a charging year may be fixed in terms providing for a deduction from the charge on a proportionate basis to be made for a part of the year during which—

(a)the network, service or facility in respect of which it is fixed is not provided or made available by the person otherwise liable to the charge;

(b)the universal service condition in respect of which it is fixed does not apply in that person’s case;

(c)the SMP apparatus condition in respect of which it is fixed does not apply in that person’s case; or

(d)the electronic communications code does not apply in that person’s case.

(3)Such a charge may also be fixed (subject to subsection (4)) so that it is referable, in whole or in part—

(a)to the provision or making available of a network, service or facility during a part of the year falling before the fixing of the charge;

(b)to the application of a universal service condition to a person for a part of the year so falling;

(c)to a person’s being a person to whom an SMP apparatus condition applies for a part of the year so falling; or

(d)to the application of the electronic communications code in a person’s case during a part of the year so falling.

(4)A charge may be fixed so as to be referable to a time before it is fixed to the extent only that both—

(a)the imposition of the charge, and

(b)the amount of the charge,

are required by, and consistent with, the statement of charging principles in force at the beginning of the charging year.

(5)Before making or revising a statement of charging principles, OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.

(6)The way in which a statement of charging principles must be made or may be revised is by the publication of the statement or revised statement 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.

(7)References in this section to a statement of charging principles are references to a statement by OFCOM of the principles that they are proposing to apply in fixing charges under section 38 for a charging year.

(8)In this section “charging year” has the same meaning as in section 38.

Commencement Information

I15S. 39 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I16S. 39 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

40Notification of non-payment of chargesU.K.

(1)OFCOM are not entitled to bring proceedings for the recovery from a person of an administrative charge fixed for any year under section 38 unless they have given that person a notification under this section with respect to the amount they are seeking to recover.

(2)Where OFCOM determine that there are reasonable grounds for believing that a person is in contravention (whether in respect of the whole or a part of a charge) of a requirement to pay such an administrative charge, they may give him a notification under this section.

(3)A notification under this section is one which—

(a)sets out the determination made by OFCOM; and

(b)specifies the period during which the person notified has an opportunity of [F30making representations about the notified determination] .

F31(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)A notification under this section—

(a)may be given in respect of contraventions of more than one requirement to pay an administrative charge; and

(b)if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(10)Where a notification under this section has been given to a person in respect of an amount outstanding, OFCOM may give a further notification in respect of the whole or a part of that amount if, and only if—

(a)the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates; or

(b)the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.

F32(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I17S. 40 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I18S. 40 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

41Penalties for non-payment of chargesU.K.

(1)This section applies where—

(a)a person (“the notified charge payer”) has been given a notification under section 40;

(b)OFCOM have allowed the notified charge payer an opportunity of making representations about the notified determination; and

(c)the period allowed for the making of the representations has expired.

(2)OFCOM may impose a penalty on the notified charge payer if he—

(a)has, in one or more of the respects notified, been in contravention of a requirement to pay an administrative charge fixed under section 38; F33...

F33(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where a notification under section 40 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

(4)Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

(5)The amount of a penalty imposed under this section is to be such amount, not exceeding twice the amount of the charge fixed for the relevant year, as OFCOM determine to be—

(a)appropriate; and

(b)proportionate to the contravention in respect of which it is imposed.

(6)In making that determination OFCOM must have regard to—

(a)any representations made to them by the notified charge payer; and

(b)any steps taken by him towards paying the amounts that he was notified under section 40 were outstanding.

(7)Where OFCOM impose a penalty on a person under this section, they shall—

(a)[F34without delay,] notify that person of that decision and of their reasons for that decision; and

(b)in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(8)A penalty imposed under this section—

(a)must be paid to OFCOM; and

(b)if not paid within the period fixed by them, is to be recoverable by them accordingly.

(9)In this section “the relevant year”, in relation to a contravention of a requirement to pay the whole or a part of the administrative charge fixed for any year, means that year.

(10)The provisions of this section do not affect OFCOM’s power, apart from those provisions, to bring proceedings (whether before or after the imposition of a penalty under this section) for the recovery of the whole or part of an amount due to them under section 38(1).

Textual Amendments

Commencement Information

I19S. 41 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I20S. 41 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

42Suspending service provision for non-paymentU.K.

(1)OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

(a)that he is or has been in [F35serious or repeated] contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);

(b)that the contraventions are not contraventions relating only to charges in respect of the application to the contravening provider of SMP apparatus conditions;

[F36(ba)that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;]

(c)that [F37, in the case of a repeated contravention,] the bringing of proceedings for the recovery of the amounts outstanding has failed to secure complete compliance by the contravening provider with the requirements to pay the charges fixed in his case, or has no reasonable prospect of securing such compliance;

(d)that [F38, in the case of a repeated contravention,] an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

[F39(e)that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.]

(2)A direction under this section is—

(a)a direction that the entitlement of the contravening provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b)a direction that that entitlement is restricted in the respects set out in the direction.

(3)A direction under this section—

(a)must specify the networks, services and facilities to which it relates; and

(b)except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(4)A direction under this section—

(a)in providing for the effect of a suspension or restriction to be postponed may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

(b)in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(5)Those conditions may include a condition requiring the making of payments—

(a)by way of compensation for loss or damage suffered by the contravening provider’s customers as a result of the direction; or

(b)in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(6)OFCOM are not to give a direction under this section unless they have—

(a)notified the contravening provider of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;

(b)provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and

(c)considered every representation and proposal made to them during the period allowed by them for the contravening provider to take advantage of that opportunity.

[F40(7)That period is such reasonable period as OFCOM may specify, beginning with the day of the giving of the notification.]

(8)If OFCOM consider it appropriate to do so (whether or not in consequence of any representations or proposals made to them), they may revoke a direction under this section, or modify its conditions—

(a)with effect from such time as they may direct;

(b)subject to compliance with such requirements as they may specify; and

(c)to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.

(9)For the purposes of this section there are repeated contraventions by a person of requirements to pay administrative charges to the extent that—

(a)in the case of a previous notification given to that person under section 40, OFCOM have determined for the purposes of section 41(2) that such a contravention did occur; and

(b)in the period of [F4124] months following the day of the making of that determination, one or more further notifications have been given to that person in respect of the same or different failures to pay administrative charges.

Textual Amendments

Commencement Information

I21S. 42 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I22S. 42 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

43Enforcement of directions under s. 42U.K.

(1)A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

(a)while his entitlement to do so is suspended by a direction under section 42; or

(b)in contravention of a restriction contained in such a direction.

(2)A person guilty of an offence under subsection (1) shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(3)The duty of a person to comply with a condition of a direction under section 42 shall be a duty owed to every person who may be affected by a contravention of the condition.

(4)Where a duty is owed by virtue of subsection (3) to a person—

(a)a breach of the duty that causes that person to sustain loss or damage, and

(b)an act which—

(i)by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

(ii)is done wholly or partly for achieving that result,

shall be actionable at the suit or instance of that person.

(5)In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.

(6)Sections [F4296A] to 99 apply in relation to a contravention of conditions imposed by a direction under section 42 as they apply in relation to a contravention of conditions set under section 45.

Textual Amendments

Commencement Information

I23S. 43 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I24S. 43 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Register of providers required to notify or to pay chargesU.K.

44Duty of OFCOM to keep publicly accessible registerU.K.

(1)It shall be the duty of OFCOM to establish and maintain a register for the purposes of section 33.

(2)OFCOM must record in the register—

(a)every designation by them for the purposes of section 33 or 38;

(b)every withdrawal by them of such a designation;

(c)every notification given to them under section 33; and

(d)every notification treated as given to them under that section by a transitional provision made under subsection (12) of that section.

(3)Information recorded in the register must be so recorded in such manner as OFCOM consider appropriate.

(4)It shall be the duty of OFCOM to publish a notification setting out—

(a)the times at which the register is for the time being available for public inspection; and

(b)the fees that must be paid for, or in connection with, an inspection of the register.

(5)The publication of a notification under subsection (4) must be 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.

(6)OFCOM must make the register available for public inspection—

(a)during such hours, and

(b)on payment of such fees,

as are set out in the notification for the time being in force under subsection (4).

Commencement Information

I25S. 44 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I26S. 44 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Conditions of entitlement to provide network or service etc.U.K.

45Power of OFCOM to set conditionsU.K.

(1)OFCOM shall have the power to set conditions under this section binding the persons to whom they are applied in accordance with section 46.

(2)A condition set by OFCOM under this section must be either—

(a)a general condition; or

(b)a condition of one of the following descriptions—

(i)a universal service condition;

[F43(ia)a social tariff condition;]

(ii)an access-related condition;

(iii)a privileged supplier condition;

(iv)a significant market power condition (an “SMP condition”).

(3)A general condition is a condition which contains only provisions authorised or required by one or more of sections 51, 52, 57, 58 or 64.

(4)A universal service condition is a condition which contains only provisions authorised or required by section 67.

[F44(4A)A social tariff condition is a condition which contains only provision authorised by section 72F.]

(5)An access-related condition is a condition which contains only provisions authorised by section 73.

(6)A privileged supplier condition is a condition which contains only the provision required by section 77.

(7)An SMP condition is either—

(a)an SMP services condition; or

(b)an SMP apparatus condition.

(8)An SMP services condition is a condition which contains only provisions which—

(a)are authorised or required by one or more of sections 87 to [F4591] ; or

(b)in the case of a condition applying to a person falling within section 46(8)(b), correspond to provision authorised or required by one or more of sections 87 to [F4689A] .

(9)An SMP apparatus condition is a condition containing only provisions authorised by section 93.

(10)OFCOM’s power to set a condition under this section making provision authorised or required by this Chapter includes each of the following—

(a)power to impose a requirement on the person or persons to whom the condition is applied to comply with such directions with respect to the matters to which the condition relates as may be given from time to time by OFCOM or by another person specified in the condition;

(b)power to impose an obligation with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;

(c)power, for the purposes of provision made by virtue of either of the preceding paragraphs, to confer a discretion exercisable from time to time by OFCOM or by another person specified in the condition or determined in accordance with provision contained in it;

(d)power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and

(e)power to revoke or modify the conditions for the time being in force.

(11)The directions that may be authorised by virtue of subsection (10) do not include directions withdrawing, suspending or restricting a person’s entitlement—

(a)to provide, in whole or in part, any electronic communications network or electronic communications service; or

(b)to make available, in whole or in part, any associated facilities.

Textual Amendments

Commencement Information

I27S. 45 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I28S. 45 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

46Persons to whom conditions may applyU.K.

(1)A condition set under section 45 is not to be applied to a person except in accordance with the following provisions of this section.

(2)A general condition may be applied generally—

(a)to every person providing an electronic communications network or electronic communications service; or

(b)to every person providing such a network or service of a particular description specified in the condition.

(3)A universal service condition, access-related condition, privileged supplier condition or SMP condition may be applied to a particular person specified in the condition.

(4)A privileged supplier condition may also be applied generally—

(a)to every person to whom such a condition is required to apply under section 77; or

(b)to every such person who is of a particular description specified in the condition.

(5)The particular person to whom a universal service condition is applied—

(a)except in the case of a condition relating to matters mentioned in subsection (3) of section 66, must be a communications provider designated in accordance with regulations under that section; and

(b)in that excepted case, must be a communications provider so designated or a person who is not such a provider but who is so designated for the purposes only of conditions relating to those matters.

[F47(5A)A social tariff condition may be applied—

(a)generally to every person providing a public electronic communications service;

(b)generally to every person providing such a service of a particular description specified in the condition; or

(c)to a particular person specified in the condition.]

(6)The particular person to whom an access-related condition is applied—

(a)in the case of a condition falling within section 74(1), may be any person whatever;

[F48(aa)in the case of a condition falling within section 74(2A), must be—

(i)a person providing a public electronic communications network; or

(ii)the owner of a line or associated facility;

(ab)in the case of a condition falling within section 74A, must be a person who provides an electronic communications network; and]

(b)in any other case, must be a person who provides an electronic communications network or makes associated facilities available.

(7)The particular person to whom an SMP services condition is applied must—

(a)be a communications provider or a person who makes associated facilities available; and

(b)fall within subsection (8).

(8)A person falls within this subsection if—

(a)he is a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications networks, electronic communications services or associated facilities (a “services market”); or

(b)it appears to OFCOM that he is a person on whom it is necessary, for the purpose of securing compliance with an international obligation of the United Kingdom, to impose a condition containing provision that corresponds to provision which, in the case of a person falling within paragraph (a), must be made (or may be made) under any of sections 87 to [F4989A] .

[F50(8A)A person whom OFCOM have previously determined to be a person having significant market power in a services market but whom OFCOM determine no longer to be a person having significant market power in that market is to be treated as continuing to fall within subsection (8) for so long as OFCOM consider necessary to ensure a sustainable transition for those benefitting from obligations imposed on that person as a result of the previous determination.]

(9)The particular person to whom an SMP apparatus condition is applied must be—

(a)a person who supplies electronic communications apparatus; and

(b)a person whom OFCOM have determined to be a person having significant market power in a specific market for electronic communications apparatus (an “apparatus market”).

Textual Amendments

Commencement Information

I29S. 46 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I30S. 46 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

47Test for setting or modifying conditionsU.K.

(1)OFCOM must not, in exercise or performance of any power or duty under this Chapter—

(a)set a condition under section 45, or

(b)modify such a condition,

unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in subsection (2).

(2)That test is that the condition or modification is—

(a)objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates [F51(but this paragraph is subject to subsection (3))] ;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what the condition or modification is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

[F52(3)Subsection (2)(a) does not apply in relation to the setting of a general condition.]

[F53(4)This section does not apply in relation to the setting or modification of a social tariff condition in accordance with a direction under section 72D(7).]

Textual Amendments

Commencement Information

I31S. 47 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I32S. 47 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

48Procedure for setting, modifying and revoking conditionsU.K.

(1)Subject to the following provisions of this Chapter—

(a)the way in which conditions are to be set or modified under section 45 is by the publication of a notification setting out the conditions or modifications; and

(b)the way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.

[F54(2)Where section 48A applies, OFCOM must comply with the applicable requirements of that section F55... before—

(a)setting conditions under section 45; or

(b)modifying or revoking a condition so set.

(2A)Where section 48A does not apply to the setting, modification or revocation of conditions because of subsection (2) of that section—

(a)the conditions, or their modification or revocation, must be temporary; and

(b)the notification published under subsection (1) of this section must state the period for which the conditions, or their modification or revocation, are to have effect.

(2B)Where OFCOM propose to extend or make permanent any such temporary conditions, modification or revocation—

(a)[F56section 48A does] not apply in relation to the proposal; F57...

F57(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(4)In the case of a [F58proposal by OFCOM] with respect to an SMP condition, the applicable requirements of sections 79 to 86 must also be complied with.

F59(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The publication of a notification under this section [F60or section 48A] must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification—

(a)in the case of a notification setting general conditions, to the attention of such persons as OFCOM consider appropriate; and

(b)in any other case, to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the contents of the notification.

(7)Nothing in the following provisions of this Chapter imposing a duty on OFCOM to set or modify a condition shall be taken as dispensing with any of the requirements of this section [F61or section 48A].

Textual Amendments

Commencement Information

I33S. 48 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I34S. 48 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F6248A. [F63Consultation] for section 45 conditionsU.K.

(1)This section applies where OFCOM propose to set, modify or revoke—

(a)SMP apparatus conditions; or

(b)any other conditions set under section 45 where what is proposed 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 F64... 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.

[F65(2A)This section also does not apply to the proposed setting, modification or revocation of a social tariff condition.]

(3)OFCOM must publish a notification—

(a)stating that they are proposing to set, modify or revoke the conditions that are specified in the notification;

(b)setting out the effect of those conditions, modifications or revocations;

(c)giving their reasons for making the proposal; and

(d)specifying the period within which representations may be made to OFCOM about their proposal.

(4)That period must end no less than [F6630 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—

(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.

(7)F67... OFCOM may then give effect to [F68the proposal], with any modifications that appear to OFCOM to be appropriate.

Textual Amendments

F6948B. EU consultation for section 45 conditionsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

48C.Delivery of copies of notifications etc. in respect of section 45 conditionsU.K.

(1)OFCOM must send to the Secretary of State a copy of every notification published under section 48(1) or 48A(3).

F70(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F70(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

49Directions and approvals for the purposes of a s. 45 conditionU.K.

(1)This section applies where—

(a)a condition set under section 45 has effect by reference to directions, approvals or consents given by a person (whether OFCOM themselves or another); and

(b)that person [F71(referred to in this section and sections 49A to 49C as “the responsible person”)] is proposing to give a direction, approval or consent that affects the operation of that condition or to modify or withdraw a direction, approval or consent so as to affect the condition’s operation.

(2)[F72The responsible person] must not give, modify or withdraw the direction, approval or consent unless he is satisfied that to do so is—

(a)objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates [F73(but this paragraph is subject to subsection (2A))] ;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what it is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

[F74(2A)Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition.]

(3)[F75Where the responsible person is a person other than OFCOM, that person shall in giving, modifying or withdrawing the direction] be under the same duty as OFCOM to act in accordance with the [F76six] requirements set out in section 4.

[F77(4)Where section 49A applies, the applicable requirements of that section F78... must be complied with before the direction, approval or consent is given, modified or withdrawn.

(4A)Where section 49A does not apply because of subsection (2) of that section—

(a)the direction, approval or consent given, or its modification or withdrawal, must be temporary; and

(b)the instrument that gives, modifies or withdraws the direction, approval or consent must state the period for which it is to have effect.

(4B)Where it is proposed to extend or make permanent any such temporary direction, approval or consent, or modification or withdrawal—

(a)[F79section 49A does] not apply in relation to the proposal; F80...

F80(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4C)Where the responsible person is a person other than OFCOM, that person must refer to OFCOM such of the following questions as are relevant in the case in question—

(a)whether OFCOM is of the opinion mentioned in section 49A(1)(b); [F81and]

(b)whether OFCOM is of the opinion mentioned in section 49A(2); F82...

F82(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4D)OFCOM must immediately determine any question so referred to them.]

Textual Amendments

Commencement Information

I35S. 49 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I36S. 49 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F8349A. [F84Consultation] for directions, approvals and consentsU.K.

(1)This section applies where the responsible person is proposing to give, modify or withdraw a direction, approval or consent for the purposes of—

(a)an SMP apparatus condition; or

(b)any other condition set under section 45 where what is proposed 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 F85... 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)The responsible person must publish a notification—

(a)stating that there is a proposal to give, modify or withdraw the direction, approval or consent;

(b)identifying the responsible person;

(c)setting out the direction, approval or consent to which the proposal relates;

(d)setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;

(e)giving reasons for the making of the proposal; and

(f)specifying the period within which representations may be made about the proposal to the responsible person.

(4)That period must be one ending not less than [F8630 days] after the day of the publication of the notification.

(5)But where the responsible person is 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 that person considers reasonable in those circumstances.

(6)The responsible person must—

(a)consider every representation about the proposal made to that person 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 OFCOM for the purposes of this paragraph by the Secretary of State.

(7)F87... The responsible person may then give effect to the proposal, with any modifications that appear to that person to be appropriate.

(8)The publication of a notification under this section must be in such manner as appears to the responsible person to be appropriate for bringing the contents of the notification to the attention of such persons as that person considers appropriate.

Textual Amendments

F8849B. EU consultation for directions, approvals and consentsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

49C.Delivery of copies of notifications etc. in respect of directions, approvals and consentsU.K.

(1)The responsible person must send to the Secretary of State—

(a)a copy of every notification published under section 49A(3);

(b)a copy of every direction, approval or consent given for the purposes of a condition set under section 45; and

(c)a copy of every instrument modifying or withdrawing such a direction, approval or consent.

F89(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F90(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In a case in which the responsible person is a person other than OFCOM, the responsible person must send to OFCOM—

(a)a copy of every notification published under section 49A(3);

(b)a copy of every direction, approval or consent given for the purposes of a condition set under section 45;

(c)a copy of every instrument modifying or withdrawing such a direction, approval or consent;

F91(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F93(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F9450Delivery of copies of notifications etc.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I37S. 50 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I38S. 50 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: subject-matterU.K.

51Matters to which general conditions may relateU.K.

(1)Subject to sections 52 to 64, the only conditions that may be set under section 45 as general conditions are conditions falling within one or more of the following paragraphs—

(a)conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;

(b)conditions making such provision as OFCOM consider appropriate for securing service interoperability and for securing, or otherwise relating to, network access;

(c)conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;

(d)conditions for giving effect to determinations or regulations made under section 71 [F95or 72H];

(e)conditions requiring F96... the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;

(f)conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;

(g)conditions requiring compliance with relevant international standards.

(2)The power under subsection (1)(a) to set conditions for protecting the interests of the end-users of public electronic communications services includes power to set conditions for that purpose which—

(a)relate to the supply, provision or making available of goods, services or facilities in association with the provision of public electronic communications services; F97...

[F98(b)provide protection for such end-users that is the same as, or similar to, any protection that was, immediately before IP completion day, required by Title 3 of Part 3 of the EECC Directive (end-user rights);]

[F99(ba)relate to any of the elements of a bundled contract;]

[F100(c)specify requirements in relation to the provision of services to disabled end-users;

(d)require the provision, free of charge, of specified information, or information of a specified kind, to end-users;

[F101(da)require a communications provider to pay compensation to an end-user on failing to meet a specified standard or obligation;]

(e)in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, impose minimum requirements in relation to the quality of public electronic communications networks;

(f)require a communications provider, in specified circumstances, to block access to telephone numbers or services in order to prevent fraud or misuse, and enable them to withhold fees payable to another communications provider in those circumstances;

(g)impose a limit on the duration of a contract between an end-user and a communications provider; F102...

(h)ensure that conditions and procedures for the termination of a contract do not act as a disincentive to an end-user changing communications provider.]

[F103(i)specify requirements in relation to arrangements that enable an end-user to change communications provider on request.]

F104(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F105(2B)The power to set general conditions falling within subsection (1)(b) includes power to require negotiations relating to service interoperability or network access to be conducted through an intermediary who—

(a)is independent of the parties; and

(b)is either appointed by the parties with the approval of OFCOM or appointed by OFCOM.]

(3)The power to set general conditions in relation to a description of electronic communications network or electronic communications service does not include power—

(a)to set conditions that are made applicable according to the identity of the provider of a network or service; or

(b)to set conditions that differ according to the identity of the provider of the networks or services to which they relate.

(4)The power to set general conditions falling within subsection (1)(b) does not include power to set conditions containing provision which under—

(a)section 73, or

(b)any of sections 87 to [F10691] ,

must be or may be included, in a case in which it appears to OFCOM to be appropriate to do so, in an access-related condition or SMP condition.

(5)The conditions falling within subsection (1)(c) include conditions making such provision as OFCOM consider appropriate for the purpose F107... of preventing or restricting electro-magnetic interference—

(a)with the provision of an electronic communications network or electronic communications service; or

(b)with, or with the receipt of, anything conveyed or provided by means of such a network or service.

(6)In this section “electro-magnetic interference” means interference by means of the emission or reflection of electro-magnetic energy in the course of, or in connection with, the provision any electronic communications network or electronic communications service.

(7)In this section “disaster” includes any major incident having a significant effect on the general public; and for this purpose a major incident includes any incident of contamination involving radioactive substances or other toxic materials.

[F108(8)In this Chapter “bundled contract” means a contract, or two or more closely related or linked contracts, between the provider of a public electronic communications service and a qualifying end-user, which—

(a)relates, or together relate, to the provision of at least one of the following—

(i)an internet access service; and

(ii)a number-based interpersonal communications service; and

(b)also relates, or together also relate, to the provision of at least one of the following—

(i)another service falling within paragraph (a)(i) or (ii);

(ii)any other public electronic communications service;

(iii)an information society service;

(iv)a content service; and

(v)terminal equipment.

(9)In subsection (8)—

Textual Amendments

F101S. 51(2)(da) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 3, 118(2)

F102Word in s. 51(2) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 2(2), 118(2)

F103S. 51(2)(i) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 2(3), 118(2)

Commencement Information

I39S. 51 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I40S. 51 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: customer interestsU.K.

52Conditions relating to customer interestsU.K.

(1)It shall be the duty of OFCOM to set such general conditions (if any) as they consider appropriate for securing that—

(a)public communications providers, or

(b)such descriptions of them as OFCOM consider appropriate,

establish and maintain procedures, standards and policies with respect to the matters mentioned in subsection (2).

(2)Those matters are—

(a)the handling of complaints made to public communications providers by any of their domestic and small business customers [F109, where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service] ;

(b)the resolution of disputes between such providers and any of their domestic and small business customers [F110, where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service] ;

(c)the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

[F111(ca)the payment of compensation to a person in respect of delay in porting a number to another public communications provider, or abuse of the process for porting a number;]

(d)the information about service standards and about the rights of domestic and small business customers that is to be made available to those customers by public communications providers;

(e)any other matter appearing to OFCOM to be necessary for securing effective protection for the domestic and small business customers of such providers.

(3)It shall be the duty of OFCOM, in setting conditions in accordance with subsection (1), to secure so far as they consider appropriate—

(a)that the procedures established and maintained for the handling of complaints and the resolution of disputes are easy to use, transparent [F112, non-discriminatory] and effective;

(b)that domestic and small business customers have the right to use those procedures free of charge; and

(c)that where public communications providers are in contravention of conditions set in accordance with the preceding provisions of this section, the providers follow such procedures as may be required by the general conditions.

(4)Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for the handling of complaints are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers to establish and maintain procedures that conform with a code of practice which is—

(a)applicable to the providers to whom the conditions apply; and

(b)for the time being approved by OFCOM for the purposes of this subsection.

(5)Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for resolving disputes are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers—

(a)to establish and maintain procedures for resolving disputes; and

(b)to secure that those procedures are, and continue to be, approved by OFCOM.

(6)In this section “domestic and small business customer”, in relation to a public communications provider, means a customer of that provider who is neither—

(a)himself a communications provider; nor

(b)a person who is such a customer in respect of an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise).

Textual Amendments

Commencement Information

I41S. 52 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I42S. 52 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

53Approval of codes of practice for the purposes of s. 52U.K.

(1)Where a code of practice is submitted to OFCOM for approval, they shall approve that code if and only if, in their opinion, it makes all such provision as they consider necessary in relation to the matters dealt with in the code for the protection of the domestic and small business customers of the public communications providers to whom the code applies.

(2)It shall be the duty of OFCOM to keep under review the codes of practice for the time being approved by them.

(3)OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a)approve modifications that have been made to an approved code;

(b)withdraw their approval from a code; or

(c)give notice that the withdrawal of their approval will take effect from such time as may be specified in the notification unless such modifications of the code as are specified in the notification are made before that time.

(4)In considering—

(a)whether to approve a code of practice, or

(b)whether or in what manner to exercise their powers under subsections (2) and (3) of this section,

OFCOM must have regard to the matters mentioned in subsection (5).

(5)Those matters are—

(a)the need to secure that customers are able readily to comprehend the procedures that are provided for by an approved code of practice;

(b)the need to secure that there is consistency between the different codes for the time being approved by OFCOM; and

(c)the need to secure that the number of different codes so approved is kept to a minimum.

(6)In this section—

Commencement Information

I43S. 53 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I44S. 53 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

54Approval of dispute procedures for the purposes of s. 52U.K.

(1)Before giving their approval to any dispute procedures, OFCOM must consult the Secretary of State.

(2)OFCOM are not to approve dispute procedures unless they are satisfied that the arrangements under which the procedures have effect—

(a)are administered by person who is for practical purposes independent (so far as decisions in relation to disputes are concerned) of both OFCOM and the communications providers to whom the arrangements apply;

(b)give effect to procedures that are easy to use, transparent [F113, non-discriminatory] and effective;

(c)give, in the case of every communications provider to whom the arrangements apply, a right to each of his domestic and small business customers to use the procedures free of charge;

(d)ensure that all information necessary for giving effect to the procedures is obtained;

(e)ensure that disputes are effectively investigated;

(f)include provision conferring power to make awards of appropriate compensation; and

(g)are such as to enable awards of compensation to be properly enforced.

(3)OFCOM may approve dispute procedures subject to such conditions (including conditions as to the provision of information to OFCOM) as they may think fit.

(4)It shall be the duty of OFCOM to keep under review the dispute procedures for the time being approved by them.

(5)OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a)modify the conditions of their approval of any dispute procedures or withdraw such an approval; or

(b)give notice that the modification of those conditions, or the withdrawal of such an approval, will take effect from such time as may be specified in the notification unless the procedures (or the arrangements under which they have effect) are modified before that time in the manner required by the notification.

(6)In considering—

(a)whether to approve dispute procedures, or

(b)whether or in what manner to exercise their powers under subsections (3) to (5),

OFCOM must have regard to the matters mentioned in subsection (7).

(7)Those matters are—

(a)the need to secure that customers are able readily to comprehend dispute procedures;

(b)the need to secure that there is consistency between the different procedures for the time being approved by OFCOM; and

(c)the need to secure that the number of different sets of procedures so approved is kept to a minimum.

(8)In this section—

Textual Amendments

Commencement Information

I45S. 54 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I46S. 54 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

55Orders by OFCOM in the absence of conditions under s. 52U.K.

(1)OFCOM may make an order under this section if, at any time, they consider in relation to any one or more public communications providers—

(a)that it is not practicable, or at least not appropriate, for OFCOM’s duties under subsections (1) and (3) of section 52 to be performed in a particular respect by the setting of general conditions; and

(b)that it is necessary to make the order for the purpose—

(i)of securing the necessary protection for the customers of that provider or of those providers; F114...

F114(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)An order under this section may make such of the following provisions as OFCOM think fit—

(a)provision imposing requirements with respect to the complaints and disputes mentioned in section 52(2);

(b)provision for the enforcement of those requirements;

(c)provision making other arrangements for the purposes of those requirements.

(3)The power to make provision by an order under this section includes, in particular—

(a)power to establish a body corporate with the capacity to make its own rules and to establish its own procedures;

(b)power to determine the jurisdiction of a body established by such an order or, for the purposes of the order, of any other person;

(c)power to confer jurisdiction with respect to any matter on OFCOM themselves;

(d)power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e)power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order; and

(f)power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4)An order under this section may require such public communications providers as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a)the establishment and maintenance, in accordance with such an order, of a body corporate or of a procedure; or

(b)the making of any other arrangements for the purposes of the requirements of such an order.

(5)The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(6)Section 403 applies to the power of OFCOM to make an order under this section.

(7)A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

Commencement Information

I47S. 55 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I48S. 55 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: telephone numbersU.K.

56The National Telephone Numbering PlanU.K.

(1)It shall be the duty of OFCOM to publish a document (to be known as “the National Telephone Numbering Plan”) setting out—

(a)the numbers that they have determined to be available for allocation by them as telephone numbers;

(b)such restrictions as they consider appropriate on the adoption of numbers available for allocation in accordance with the plan; F115...

[F116(ba)such requirements as they consider appropriate, for the purpose of protecting consumers, in relation to the tariff principles and maximum prices applicable to numbers so adopted or available for allocation; and]

(c)such restrictions as they consider appropriate on the other uses to which numbers available for allocation in accordance with the plan may be put.

(2)It shall be OFCOM’s duty—

(a)from time to time to review the National Telephone Numbering Plan; and

(b)to make any revision of that plan that they think fit in consequence of such a review;

but this duty must be performed in compliance with the requirements, so far as applicable, of section 60.

(3)OFCOM must also keep such day to day records as they consider appropriate of the telephone numbers allocated by them in accordance with the National Telephone Numbering Plan.

(4)The publication of the National Telephone Numbering Plan, or of a revision of it, must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the Plan, or of the revised Plan, to the attention of such persons as OFCOM consider appropriate.

(5)In this Chapter references to a telephone number are (subject to subsection (7)) references to any number that is used (whether or not in connection with telephony) for any one or more of the following purposes—

(a)identifying the destination for, or recipient of, an electronic communication;

(b)identifying the origin, or sender, of an electronic communication;

(c)identifying the route for an electronic communication;

(d)identifying the source from which an electronic communication or electronic communications service may be obtained or accessed;

(e)selecting the service that is to be obtained or accessed, or required elements or characteristics of that service; or

(f)identifying the communications provider by means of whose network or service an electronic communication is to be transmitted, or treated as transmitted.

(6)In this Chapter references to the adoption of a telephone number by a communications provider are references to his doing any of the following in relation to a number allocated (whether or not to that provider) by OFCOM—

(a)allocating or transferring that number to a particular customer or piece of apparatus;

(b)using that number for identifying a service or route used by that provider or by any of his customers;

(c)using that number for identifying a communication as one to be transmitted by that provider;

(d)designating that number for use in selecting a service or the required elements or characteristics of a service;

(e)authorising the use of that number by others for any of the purposes mentioned in subsection (5).

(7)The Secretary of State may by order exclude such numbers as may be described in the order from the numbers that are to be treated as telephone numbers for the purposes of this Chapter.

(8)No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(9)References in this section to the allocation of a number are references to its allocation for the purposes of general conditions under section 58 or in accordance with conditions under section 59.

(10)In this section—

Textual Amendments

Commencement Information

I49S. 56 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I50S. 56 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F11756A.Conditions for limitations on allocation of telephone numbersU.K.

(1)When OFCOM allocate telephone numbers in accordance with the National Telephone Numbering Plan, they must specify whether an allocation may be transferred from one person to another, and may set out the conditions under which the allocation may be transferred.

(2)If OFCOM allocate telephone numbers for a limited period of time, the limitation must be objectively justifiable in relation to the services to which it relates, taking account of the need to allow for an appropriate period of investment amortisation.]

Textual Amendments

57Conditions to secure access to telephone numbersU.K.

(1)General conditions may impose such requirements as OFCOM consider appropriate for securing that every end-user of a public electronic communications service is able, by means of that service—

(a)to make calls or otherwise transmit electronic communications to every normal telephone number; and

(b)to receive every call or other electronic communication that is made or transmitted to him using such a service from apparatus identified by a normal telephone number.

(2)A normal telephone number is one which—

(a)has been made available, in accordance with the National Telephone Numbering Plan, as a number to be used for the purpose of identifying the destination for, or the recipient of, electronic communications; and

(b)is for the time being—

(i)a number adopted by a communications provider to be used for such a purpose; or

(ii)a number in use for such a purpose by a person other than a communications provider to whom it has been allocated in accordance with conditions under section 59.

(3)In this section “electronic communication” has the same meaning as in section 56.

Commencement Information

I51S. 57 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I52S. 57 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

58Conditions about allocation and adoption of numbersU.K.

(1)General conditions may include conditions which—

(a)prohibit the adoption of telephone numbers by a communications provider except in cases where the numbers have been allocated by OFCOM to a person;

[F118(aa)impose tariff principles and maximum prices for the purpose of protecting consumers in relation to the provision of an electronic communications service by means of telephone numbers adopted or available for use;]

(b)regulate the use by a communications provider, for the purpose of providing an electronic communications network or electronic communications service, of telephone numbers not allocated to that provider;

(c)impose restrictions on the adoption of telephone numbers by a communications provider, and on other practices by communications providers in relation to telephone numbers allocated to them;

(d)impose requirements on a communications provider in connection with the adoption by him of telephone numbers;

(e)require an allocation of particular telephone numbers to be transferred from one communications provider to another in the circumstances provided for in the conditions;

(f)impose such requirements and restrictions on a communications provider from whom an allocation is required to be transferred as may be provided for, in relation to the transfer, in the conditions;

(g)require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of the allocation to him of telephone numbers;

(h)require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of transfers of allocations from one person to another; and

(i)require communications providers to secure compliance with such rules relating to the use of telephone numbers by their customers as OFCOM may set out in general conditions or determine in accordance with provision made by the general conditions.

(2)General conditions may also—

(a)provide for the procedure to be followed on the making of applications to OFCOM for the allocation of telephone numbers;

(b)provide for the information that must accompany such applications and for the handling of such applications;

(c)provide a procedure for telephone numbers to be reserved pending the making and disposal of an application for their allocation;

(d)provide for the procedure to be followed on the making of applications for telephone numbers to be reserved, and for the handling of such applications;

(e)regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the adoption by a communications provider of telephone numbers allocated to that provider;

(f)regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the transfer of an allocation from one person to another.

[F119(2A)General conditions may also require a communications provider to whom telephone numbers have been allocated—

(a)to provide OFCOM with any information that was not required to accompany the application for allocation of the numbers when it was made but which is now required to accompany such applications;

(b)to inform OFCOM of any changes to information that accompanied the application for allocation of the numbers or that has been provided in accordance with a condition set under paragraph (a);

(c)to inform OFCOM of any proposal by the provider to cease to provide an electronic communications network or electronic communications service;

(d)to inform OFCOM of any circumstances or events of a description specified in the condition.]

(3)The conditions that may be set under subsection (1)(d) include conditions imposing requirements with respect to the provision of information for purposes connected with—

(a)the compilation of directories; and

(b)the provision of directory enquiry facilities.

(4)The procedure to be followed on the making of an application for the allocation of numbers that are available for allocation in accordance with the National Telephone Numbering Plan must require OFCOM’s determination of the application to be made—

(a)in the case of an application made in response to an invitation in accordance with subsection (5), before the end of six weeks after the day on which the application is received; and

(b)in any other case, before the end of three weeks after that day.

(5)Where OFCOM are proposing to allocate any telephone numbers, they may—

(a)invite persons to indicate the payments each would be willing to make to OFCOM if allocated the numbers; and

(b)make the allocation according to the amounts indicated.

(6)General conditions providing for payments to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a)must set out the principles according to which the amounts of the payments are to be determined;

(b)may provide for the payments to consist of a lump sum in respect of a particular allocation or transfer or of sums payable periodically while an allocation remains in force, or of both;

(c)may provide for the amounts to be determined by reference to—

(i)any indication according to which the allocation has been made as mentioned in subsection (5); or

(ii)any other factors (including the costs incurred by OFCOM in connection with the carrying out of their functions by virtue of section 56 and this section) as OFCOM think fit.

(7)General conditions may—

(a)make modifications from time to time of, or of the method of determining, the amounts of periodic payments falling to be made by virtue of conditions containing provision authorised by this section; and

(b)make different provision in relation to different descriptions of communications provider and different descriptions of telephone number.

(8)Nothing in subsection (7) authorises the modification, after it has been fixed, of the amount of a periodic payment fixed in accordance with arrangements made in relation to numbers allocated as mentioned in subsection (5)(b).

(9)Payments that are required to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a)must be paid to them as soon as they become due in accordance with the conditions imposing the obligation to pay; and

(b)if not so paid, are to be recoverable by them accordingly.

Textual Amendments

F119S. 58(2A) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 84, 118(2)

Commencement Information

I53S. 58 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I54S. 58 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

59Telephone numbering conditions binding non-providersU.K.

(1)OFCOM may set conditions under this section that apply to persons other than communications providers and relate to—

(a)the allocation of telephone numbers to such persons;

(b)the transfer of allocations to and from such persons; and

(c)the use of telephone numbers by such persons.

(2)The conditions that may be set under this section include conditions imposing obligations corresponding to any of the obligations that may be imposed on communications providers by general conditions making provision for, or in connection with—

(a)the allocation of telephone numbers;

(b)the transfer of allocations; or

(c)the use of telephone numbers.

(3)Subsection (10) of section 45 applies to OFCOM’s power to set a condition under this section as it applies to their power to set a condition under that section.

(4)Sections 47 to 49 apply in relation to—

(a)the setting of conditions under this section and the modification and revocation of such conditions; and

(b)the giving, modification or withdrawal of any direction, approval or consent for the purposes of a condition under this section,

as they apply in the case of general conditions and in the case of directions, approvals and consents given for the purposes of general conditions.

(5)It shall be the duty of a person who—

(a)is not a communications provider, but

(b)applies for the allocation of a telephone number, or is allocated such a number,

to comply with any conditions set under this section.

(6)That duty shall be enforceable in civil proceedings by OFCOM—

(a)for an injunction;

(b)for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(c)for any other appropriate remedy or relief.

(7)Subsection (6) does not apply in the case of a person against whom the obligations contained in the condition in question are enforceable (by virtue of his having become a communications provider) as obligations imposed by general conditions.

Commencement Information

I55S. 59 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I56S. 59 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

60Modification of documents referred to in numbering conditionsU.K.

(1)This section applies where numbering conditions for the time being have effect by reference to provisions, as they have effect from time to time, of—

(a)the National Telephone Numbering Plan; or

(b)another document published by OFCOM.

(2)OFCOM must not revise or otherwise modify the relevant provisions unless they are satisfied that the revision or modification is—

(a)objectively justifiable in relation to the matters to which it relates;

(b)not such as to discriminate unduly against particular persons or against a particular description of persons;

(c)proportionate to what the modification is intended to achieve; and

(d)in relation to what it is intended to achieve, transparent.

(3)Before revising or otherwise modifying the relevant provisions, OFCOM must publish a notification—

(a)stating that they are proposing to do so;

(b)specifying the Plan or other document that they are proposing to revise or modify;

(c)setting out the effect of their proposed revisions or modifications;

(d)giving their reasons for making the proposal; and

(e)specifying the period within which representations may be made to OFCOM about their proposal.

(4)That period must be one ending not less than [F12030 days] after the day of the publication of the notification.

(5)OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (3) only if—

(a)they have considered every representation about the proposal that is made to them within the period specified in the notification; and

(b)they have had 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.

(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 such persons as OFCOM consider appropriate.

(7)In this section—

Textual Amendments

Commencement Information

I57S. 60 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I58S. 60 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

61Withdrawal of telephone number allocationsU.K.

(1)Where OFCOM have allocated telephone numbers for the purposes of any numbering conditions, they may withdraw that allocation if, and only if, the case is one in which the withdrawal of an allocation is authorised by this section.

(2)The withdrawal of an allocation is authorised (subject to section 62) if—

(a)consent to the withdrawal is given by the person to whom the numbers are for the time being allocated;

(b)the withdrawal is made for the purposes of a transfer of the allocation required by numbering conditions;

(c)the withdrawal is made for the purposes of a numbering reorganisation applicable to a particular series of telephone numbers;

(d)the withdrawal is made in circumstances specified in the numbering conditions and for the purpose of securing that what appears to OFCOM to be the best and most efficient use is made of the numbers and other data that are appropriate for use as telephone numbers;

(e)the allocated numbers are numbers that have not been adopted during such period after their allocation as may be specified in the numbering conditions; or

(f)the allocated numbers are comprised in a series of numbers which have not to a significant extent been adopted or used during such period as may be so specified.

(3)The withdrawal of an allocation is also authorised where—

(a)there have been [F121serious or repeated] contraventions, by the person to whom the allocation is for the time being allocated, of the numbering conditions; and

(b)it appears to OFCOM that the taking of other steps in respect of the contraventions is likely to prove ineffective for securing future compliance.

(4)The withdrawal of an allocation is also authorised where—

(a)the person to whom the allocation is for the time being allocated is not a communications provider; and

(b)it appears to OFCOM that contraventions by that person of numbering conditions makes the withdrawal of the allocation appropriate.

(5)OFCOM’s power to set conditions specifying circumstances for the purposes of subsection (2)(d), and their power to withdraw an allocation in the specified circumstances, are each exercisable only in a manner that does not discriminate unduly—

(a)against particular communications providers;

(b)against particular users of the allocated numbers; or

(c)against a particular description of such providers or users;

and the purposes for which those powers may be exercised do not include the carrying out of a numbering reorganisation of the sort mentioned in subsection (2)(c).

(6)Where OFCOM are proposing to withdraw an allocation in exercise of the power conferred by virtue of subsection (2)(e) or (f), they must—

(a)give a notification of their proposal;

(b)consider any representations made to them about the proposal within the period of [F12230 days] following the day on which the notification is given; and

(c)ensure that the withdrawal (if OFCOM decide to proceed with it after considering those representations) does not take effect until the end of the three months beginning with the end of the period mentioned in paragraph (b).

(7)A notification for the purposes of subsection (6) must be given in such manner as OFCOM consider appropriate for bringing it to the attention of—

(a)the person to whom the numbers to which the proposed withdrawal relates are for the time being allocated;

(b)every person appearing to OFCOM to be a person to whom communications are or may be transmitted using one of those numbers for identifying the destination or route;

(c)every person who uses one or more of those numbers for obtaining access to services or for communication; and

(d)every other person who, in OFCOM’s opinion, is likely to be affected by the proposal.

(8)For the purposes of this section there are repeated contraventions by a person of numbering conditions to the extent that—

[F123(a)in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(2) in respect of the contravention; and

(b)in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of numbering conditions;]

and for the purposes of this subsection it shall be immaterial whether the [F124confirmation decisions] related to the same contravention or to different contraventions of the same or different conditions.

(9)In this section “numbering conditions” means—

(a)general conditions the making of which is authorised by section 58; or

(b)conditions set under section 59.

Textual Amendments

Commencement Information

I59S. 61 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I60S. 61 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

62Numbering reorganisationsU.K.

(1)This section applies to the withdrawal of an allocation for the purposes of a numbering reorganisation that is applicable to a particular series of telephone numbers.

(2)The allocation is to be withdrawn only if the reorganisation, so far as it relates to numbers of any description, is not such as to discriminate unduly—

(a)against particular communications providers;

(b)against particular users of the allocated numbers; or

(c)against a particular description of such providers or users.

(3)The allocation must not be withdrawn if the reorganisation fails to provide for withdrawn allocations to be replaced by allocations of telephone numbers so nearly resembling the numbers to which the withdrawal relates as the purpose of the reorganisation allows.

(4)Where a replacement allocation is made for the purposes of the re-organisation—

(a)no payment is to be made to OFCOM in respect of the making of the replacement allocation; but

(b)subsection (5) is to apply.

(5)Where this subsection applies—

(a)a provision for the making of periodic payments in respect of the withdrawn allocation is to be treated, to the extent that OFCOM determine that it should, as a provision requiring the making of periodic payments in respect of the replacement allocation; and

(b)OFCOM may, if they think fit, make such repayments or adjustments of a provision for payment as appear to them to be appropriate in consequence of differences between—

(i)the numbers to which the withdrawn allocation relates; and

(ii)the numbers to which the replacement allocation relates.

Commencement Information

I61S. 62 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I62S. 62 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

63General duty as to telephone numbering functionsU.K.

(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.

Commencement Information

I63S. 63 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I64S. 63 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

General conditions: must-carry obligationsU.K.

64Must-carry obligationsU.K.

(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)the digital public teletext service.

(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 [F125(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.

Textual Amendments

Commencement Information

I65S. 64 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I66S. 64 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Universal service conditionsU.K.

65Obligations to be secured by universal service conditionsU.K.

(1)The Secretary of State must by order F126... set out the extent to which the things falling within subsection (2) must F127... be provided, made available or supplied throughout the United Kingdom.

(2)Those things are—

(a)electronic communications networks and electronic communications services;[F128and]

(b)facilities capable of being made available as part of or in connection with an electronic communications service;

F129(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F129(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F129(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F130(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 [F131at 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.

[F132(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 [F133to 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[F134, 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.

[F135(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.]

[F136(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.]

Textual Amendments

F126Words in s. 65(1) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 1(3), 118(2)

F130S. 65(2A)-(2C) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(4), 118(2)

Modifications etc. (not altering text)

Commencement Information

I67S. 65 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I68S. 65 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

66Designation of universal service providersU.K.

(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.

F137(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F138(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F139(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.

Textual Amendments

F139S. 66(9A) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(5), 118(2)

Commencement Information

I69S. 66 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I70S. 66 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

67Subject-matter of universal service conditionsU.K.

(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.

[F140(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; [F141and]

(b)requires information so published to satisfy the requirements that OFCOM consider appropriate for securing that it is adequate;F142...

F142(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F143(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 F144... that is contained in the universal service order.

(9)[F145In 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).]

Textual Amendments

F144Words in s. 67(3)omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 1(6), 118(2)

Commencement Information

I71S. 67 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I72S. 67 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

68Tariffs etc. for universal servicesU.K.

(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.

[F146(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 [F147or, 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.

Textual Amendments

Commencement Information

I73S. 68 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I74S. 68 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

69Directories and directory enquiry facilitiesU.K.

(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.

Commencement Information

I75S. 69 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I76S. 69 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

70[F148Review of compliance costs: universal service conditions]U.K.

(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.

Textual Amendments

Commencement Information

I77S. 70 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I78S. 70 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

71Sharing of burden of universal service obligationsU.K.

(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.

Commencement Information

I79S. 71 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I80S. 71 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

72[F149Report on sharing mechanism: universal service obligations]U.K.

(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.

Textual Amendments

Commencement Information

I81S. 72 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I82S. 72 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F15072AReview of universal service orderU.K.

(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 F151....

(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.

Textual Amendments

F150Ss. 72A, 72B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(7), 118(2)

Modifications etc. (not altering text)

72BBroadband download speeds: duty to give direction under section 72AU.K.

(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 [F152at 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).]

Textual Amendments

F150Ss. 72A, 72B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(7), 118(2)

[F153Further duty to review tariffsU.K.

Textual Amendments

72CDuty to review certain tariffs that are not universal service tariffsU.K.

(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—

Social tariff conditionsU.K.

72DSocial tariff conditions: procedureU.K.

(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.

72EConsultation by OFCOM on proposed recommendationU.K.

(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.

72FSocial tariff conditions: generalU.K.

(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.

72GReview of compliance costs: social tariff conditionsU.K.

(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.

72HSharing of burden of social tariff obligationsU.K.

(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.

72IReport on sharing mechanism: social tariff obligationsU.K.

(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.]

Access-related conditionsU.K.

73Permitted subject-matter of access-related conditionsU.K.

(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)efficiencyF154...;

(b)sustainable competition F155...; F156...

[F157(bza)the bringing into operation, where OFCOM consider it appropriate, of very high capacity networks;]

[F158(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 participateF159... 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.

[F160(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.]

F161(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F162(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).

Textual Amendments

Commencement Information

I83S. 73 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I84S. 73 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

74Specific types of access-related conditionsU.K.

(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.

[F163(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.

[F164(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—

(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).

Textual Amendments

Commencement Information

I85S. 74 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I86S. 74 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F16674AAccess-related conditions in certain cases involving use of radio spectrumU.K.

(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 [F167United 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.

Textual Amendments

74BReview of access-related conditionsU.K.

(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.]

Textual Amendments

75Conditional access systems and access to digital servicesU.K.

F168(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 F169... in Part I of [F170Annex 2 to the EECC Directive] (conditions relating to access to digital programme services) [F171as it had effect immediately before IP completion day].

[F172(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.]

[F173(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—

Textual Amendments

Commencement Information

I87S. 75 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I88S. 75 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

76Modification and revocation of conditions imposed under s. 75U.K.

(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.

Commencement Information

I89S. 76 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I90S. 76 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F17476A.Information about electronic communications apparatus available for shared useU.K.

(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.]

Textual Amendments

Privileged supplier conditionsU.K.

77Imposition of privileged supplier conditionsU.K.

(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 [F175£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 [F176sterling] 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—

Textual Amendments

Commencement Information

I91S. 77 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I92S. 77 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

SMP conditions: procedureU.K.

78Circumstances required for the setting of SMP conditionsU.K.

(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.

[F179(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.

F180(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I93S. 78 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I94S. 78 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

79Market power determinationsU.K.

(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.

[F181(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.]

F182(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F183(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.]

[F184(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.

[F185(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.]

F186(2C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F182(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.

[F187(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).]

F182(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I95S. 79 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I96S. 79 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

80Proposals for identifying markets and for market power determinationsU.K.

[F188(1)Where section 80A applies, OFCOM must comply with the applicable requirements of that section F189... 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)[F190section 80A does] not apply in relation to the proposal; F191...

F191(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F192(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I97S. 80 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I98S. 80 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F19380A. [F194Consultation] for market identifications and market power determinationsU.K.

(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 F195... 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 [F19630 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)F197... OFCOM may then give effect to [F198the proposal], with any modifications that appear to OFCOM to be appropriate.]

Textual Amendments

F19980B. EU consultation for market identifications and market power determinationsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F20081Delivery of copies of notifications under sections 79 and 80AU.K.

(1)OFCOM must send to the Secretary of State a copy of every notification published under section 79(4) or 80A(3).

F201(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F201(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F201(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

Commencement Information

I99S. 81 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I100S. 81 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F20282European Commission’s powers in respect of proposalsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I101S. 82 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I102S. 82 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F20383Special rules for transnational marketsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

84Review of services market identifications and determinationsU.K.

(1)This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.

(2)OFCOM [F204must, 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.

F205(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 [F20681] 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.

Textual Amendments

Commencement Information

I103S. 84 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I104S. 84 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F20784A.Timing of services market identifications and determinationsU.K.

(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.

F208(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; F209...

F209(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

F210(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F210(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F211(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.]]

Textual Amendments

85Review of apparatus market identifications and determinationsU.K.

(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, [F21280, 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.

Textual Amendments

Commencement Information

I105S. 85 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I106S. 85 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

86Cases where review requiredU.K.

(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.

Commencement Information

I107S. 86 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I108S. 86 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

SMP services conditions: subject-matterU.K.

87Conditions about network access etc.U.K.

(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.

[F213(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 [F214(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;

[F215(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 [F216(taking account of any public investment made)];

(d)the need to secure effective competition [F217(including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition)] in the long term [F218and to support innovative business models that support sustainable competition]; [F219and]

(e)any rights to intellectual property that are relevant to the proposal; F220...

F220(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.

[F221(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—

Textual Amendments

Commencement Information

I109S. 87 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I110S. 87 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

88Conditions about network access pricing etc.U.K.

(1)OFCOM are not to set an SMP condition falling within section 87(9) except where—

(a)it appears to them from the market analysis carried out for the purpose of setting that condition that there is a relevant risk of adverse effects arising from price distortion; and

(b)it also appears to them that the setting of the condition is appropriate for the purposes of—

(i)promoting efficiency;

(ii)promoting sustainable competition; F222...

(iii)conferring the greatest possible benefits on the end-users of public electronic communications services [F223having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and]

[F224(iv)where relevant to the market analysis, promoting the availability and use of new and enhanced networks.]

[F225(1A)Even if the tests in subsection (1)(a) and (b) are satisfied, OFCOM may consider not imposing an SMP condition if they consider—

(a)that a demonstrable retail price constraint is present; and

(b)that obligations imposed by SMP conditions not falling within section 87(9) ensure effective and non-discriminatory access.]

[F226(2)In setting an SMP condition falling within section 87(9), OFCOM must take account of—

(a)the extent of the investment in the matters to which the condition relates of the person to whom it is to apply; and

(b)where the condition involves price controls on the provision of network access to existing network elements, the benefits of predictable and stable wholesale prices in ensuring—

(i)efficient market entry; and

(ii)sufficient incentives for all undertakings to bring into operation new and enhanced networks.]

(3)For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—

(a)so fix and maintain some or all of his prices at an excessively high level, or

(b)so impose a price squeeze,

as to have adverse consequences for end-users of public electronic communications services.

(4)In considering the matters mentioned in subsection (1)(b) OFCOM may—

(a)have regard to the prices at which services are available in comparable competitive markets;

(b)determine what they consider to represent efficiency by using such cost accounting methods as they think fit.

(5)In this section “the dominant provider” has the same meaning as in section 87.

Textual Amendments

Commencement Information

I111S. 88 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I112S. 88 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

89Conditions about network access in exceptional casesU.K.

(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 an electronic communications network or a person who makes associated facilities available; and

(c)OFCOM consider that there are exceptional circumstances making it appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.

(2)OFCOM may set the additional SMP conditions and apply them to the dominant provider F227...

Textual Amendments

Commencement Information

I113S. 89 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

I114S. 89 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F22889A.Functional separationU.K.

(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.

Textual Amendments

[F22989B.Functional separation conditions: matters to be considered by OFCOMU.K.

(1)This section applies where OFCOM propose to apply a functional separation condition to a person.

(2)OFCOM must consider the expected impact of the condition on—

(a)OFCOM;

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

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

(d)the electronic communications sector as a whole;