Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

Conditions of entitlement to provide network or service etc.

Persons to whom conditions may apply
46
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.
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;
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 89A .
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”).
S. 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))
S. 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)
Word in s. 46(8)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 20 (with Sch. 3 para. 2)
S. 46(5A) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 11(2)
S. 46(8A) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 11(4)
S. 46(6)(aa)(ab) substituted (21.12.2020) for word by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 11(3)