Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

SMP services conditions: subject-matter

Functional separation conditions: consultation and notification
89B
1
Where
OFCOM
propose to apply a functional separation condition to a person, they must submit their proposal, including the draft functional separation condition, to the European Commission.
2
The proposal must set out—
a
evidence justifying the conclusions mentioned in section 89A(1)(c) and (d);
b
a reasoned assessment that there is little or no prospect of effective and sustainable infrastructure based competition within a reasonable time frame;
c
an analysis of the expected impact of the condition on—
i
OFCOM;
ii
the person on whom the condition is to be imposed;
iii
the staff of the entity to which activities are to be transferred;
iv
the electronic communications sector as a whole;
v
incentives to invest in the electronic communications sector, particularly with regard to the need to ensure social and territorial cohesion;
vi
competition in the services market affected by the condition; and
vii
other persons who in
OFCOM
’s opinion are likely to be affected by the condition, including, in particular, consumers; and
d
an analysis of the reasons why a functional separation condition would be the most effective means of addressing important and persisting competition problems or market failures identified by
OFCOM
.
3
OFCOM
may set the functional separation condition and apply it to a person if—
a
the Commission has approved the imposition on the person of the obligations contained in the condition, and
b
OFCOM
have considered the impact that the obligations contained in the condition and approved by the Commission are likely to have on
SMP
services conditions set in relation to the services markets which, in
OFCOM
’s opinion, will be affected by the proposed condition.
4
A proposal for a functional separation condition is to be submitted to the European Commission under this section before
OFCOM
carry out a consultation under section 48A in relation to the condition.
Ss. 89A-89C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 50 (with Sch. 3 para. 2)