Part 2Networks, services and the radio spectrum

Chapter 1Electronic communications networks and services

Conditions of entitlement to provide network or service etc.

46Persons to whom conditions may apply

(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.

F1(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;

F2(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 F389A .

F4(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”).