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; F1...
(iii)conferring the greatest possible benefits on the end-users of public electronic communications services [F2having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and]
[F3(iv)where relevant to the market analysis, promoting the availability and use of new and enhanced networks.]
[F4(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.]
[F5(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
F1Word in s. 88(1)(b)(ii) omitted (21.12.2020) by virtue of 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. 42(2)(i)
F2Words in s. 88(1)(b)(iii) 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. 42(2)(ii)
F3S. 88(1)(b)(iv) 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. 42(2)(iii)
F4S. 88(1A) 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. 42(3)
F5S. 88(2) substituted (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. 42(4)
Commencement Information
I1S. 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))
I2S. 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)