Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

Commitments by network provider

Notification of proposed commitments relating to very high capacity network
93B
1
Section 93A has effect subject to the provisions of this section in a case where—
a
the dominant provider referred to in section 93A(1) proposes commitments which include a commitment to open up investment in a network to co-investment (“a co-investment commitment”);
b
the network is a very high capacity network which consists of optical fibre elements—
i
up to the premises of the end-user or, where this is technically impracticable, up to the immediate proximity of those premises; or
ii
up to the base station; and
c
the bringing into operation of the network was not publicly announced before 21 December 2018;
d
the dominant provider has notified OFCOM under subsection (2) of section 93A of a proposal complying with subsection (3) of that section.
2
OFCOM are not required to publish under section 93A(4) a notification complying with section 93A(5) in relation to the proposed co-investment commitment if in their opinion the proposal does not address all the matters specified in subsection (3) of this section.
3
In considering the proposed co-investment commitment under section 93A(6), OFCOM must, in particular, consider whether in their opinion the offer to co-invest satisfies the following requirements—
a
it is open at any moment during the lifetime of the network to any provider of electronic communications networks or services;
b
it would allow other co-investors who are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the dominant provider is active on terms which include—
i
fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to co-investment;
ii
flexibility in terms of the value and timing of the participation of each co-investor;
iii
the possibility of increasing such participation in the future;
iv
reciprocal rights awarded by the co-investors after the bringing into operation of the co-invested infrastructure;
c
it is made public by the dominant provider in a timely manner and, if the dominant provider is not a wholesale-only undertaking, within such period of not less than 6 months before the bringing into operation of the new network as OFCOM consider appropriate;
d
persons seeking access to the network but not participating in the co-investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the bringing into operation of the network;
e
it is accompanied by a mechanism of adaptation over time, confirmed by OFCOM in light of developments on the related retail markets, that—
i
maintains the incentives to participate in the co-investment; and
ii
ensures that persons seeking access at any time have access to the very high capacity elements of the network on transparent and non-discriminatory terms which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the bringing into operation of the network and take into account the competitive situation in retail markets;
f
it complies with—
i
the criteria set out in points (a) to (d) of Annex 4 to the EECC Directive; and
ii
any additional criteria that OFCOM consider necessary to ensure accessibility of potential investors to the co-investment and publish for the purposes of this section; and
g
it is made in good faith.
4
OFCOM must, by a commitments decision, make the co-investment commitment binding if—
a
in considering the proposal under section 93A(6), they determine that the co-investment commitment—
i
satisfies (or, if changes specified under section 93A(6) were made, would satisfy) the requirements in subsection (3); and
ii
is adequate (or, if changes so specified were made, would be adequate) to address the competition problems, or possible competition problems, mentioned in section 93A(2); and
b
the dominant provider notifies OFCOM under section 93A(8) in relation to the proposal (or, as the case requires, the proposal as revised under section 93A(7)).
5
In the case of a co-investment commitment, the period specified by OFCOM in a commitments decision must be at least 7 years.
6
In determining whether the requirements of subsection (3) are met, OFCOM may have regard to any guidelines that are from time to time published by BEREC under Article 76(4) of the EECC Directive (whether before or after IP completion day).
Ss. 93A-93D and cross-heading 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. 44
S. 93B(6) inserted (31.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(3)(a), Sch. 1 para. 76