Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

Conditions of entitlement to provide network or service etc.

Directions and approvals for the purposes of a s. 45 condition
49
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 (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
The 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 (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.
2A
Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition.
3
Where 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 six Community requirements set out in section 4.
4
Where section 49A applies, the applicable requirements of that section and section 49B must be complied with before the direction, approval or consent is given, modified or withdrawn.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
sections 49A and 49B(1) do not apply in relation to the proposal; and
b
subsections (2) to (10) of section 49B apply in relation to the proposal as if for the words from the beginning of subsection (2) to “the person” were substituted “The responsible person”.
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);
b
whether
OFCOM
is of the opinion mentioned in section 49A(2); and
c
whether the proposal is of
EU
significance.
4D
OFCOM
must immediately determine any question so referred to them.
S. 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))
S. 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)
Words in s. 49(1)(b) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(a) (with Sch. 3 paras. 2, 7)
Words in s. 49(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(b)(i) (with Sch. 3 paras. 2, 7)
Words in s. 49(2)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(b)(ii) (with Sch. 3 paras. 2, 7)
S. 49(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(c) (with Sch. 3 paras. 2, 7)
Words in s. 49(3) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(d) (with Sch. 3 paras. 2, 7)
S. 49(4)-(4D) substituted for s. 49(4)-(10) (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(e) (with Sch. 3 paras. 2, 7)