Office of Public Sector Information
PART 2 continued CHAPTER 1 continued
(1) OFCOM may from time to time review the extent (if any) of the financial burden for a particular designated universal service provider of complying in relation to any matter with any one or more of the universal service conditions applied to him.
(2) Where—
(a) regulations under section 66 require the financial burden of so complying to be taken into account in determining whom to designate, and
(b) the regulations provide for a particular method of calculating that burden to be used for the purposes of that determination,
that must be the method of calculation applied on a review under this section.
(3) Where subsection (2) does not apply, the financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the designated universal service provider from—
(a) his designation; and
(b) the application to him of universal service conditions.
(4) After carrying out a review under this section OFCOM must either—
(a) cause the calculations made by them on the review to be audited by a person who appears to them to be independent of designated universal service providers; or
(b) themselves carry out an audit of those calculations.
(5) OFCOM must ensure, in the case of every audit carried out under subsection (4), that a report on the audit—
(a) is prepared; and
(b) if not prepared by OFCOM, is provided to them.
(6) It shall be the duty of OFCOM, in the case of every review under this section, to publish—
(a) their conclusions on the review; and
(b) a summary of the report of the audit which was carried out as respects the calculations made for the purposes of that review.
(7) The publication of anything under subsection (6) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(1) This section applies where OFCOM—
(a) have concluded, on a review under section 70, that complying in relation to any matter with universal service conditions imposes a financial burden on a particular designated universal service provider; and
(b) have published that conclusion in accordance with that section.
(2) OFCOM must determine, in the case of the designated universal service provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.
(3) If—
(a) OFCOM determine that it would be unfair for the designated universal service provider to bear, or to continue to bear, the whole or a part of the burden, and
(b) an application for a determination under this subsection is made to OFCOM by that provider,
OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.
(4) The making of any of the following must be in accordance with regulations made by OFCOM—
(a) a determination by OFCOM of the extent of the financial burden that exists for the designated universal service provider of complying in relation to any matter with universal service conditions;
(b) an application for the purposes of subsection (3)(b);
(c) a determination by OFCOM of whether it is or would be unfair for the designated universal service provider to bear, or to continue to bear, the burden of complying in relation to any matter with universal service conditions;
(d) a determination of the extent (if any) to which that is or would be unfair.
(5) The assessment, collection and distribution of contributions under subsection (3) is not to be carried out except in accordance with a mechanism provided for in a scheme contained in regulations made by OFCOM.
(6) It shall be the duty of OFCOM to exercise their power to make regulations under this section in the manner which they consider will secure that the assessment, collection and distribution of contributions under subsection (3) is carried out—
(a) in an objective and transparent manner;
(b) in a manner that does not involve, or tend to give rise to, any undue discrimination against particular communications providers or particular designated universal service providers, or against a particular description of them; and
(c) in a manner that avoids, or (if that is impracticable) at least minimises, any distortion of competition or of customer demand.
(7) Regulations made by OFCOM under this section may provide for a scheme containing the provision mentioned in subsection (5), and for any fund set up for the purposes of such a scheme, to be administered either—
(a) by OFCOM; or
(b) by such other person as may be specified in the regulations.
(8) A person other than OFCOM are not to be specified in regulations under this section as the administrator of such a scheme or fund unless he is a person who OFCOM are satisfied is independent of both—
(a) the persons who are designated universal service providers; and
(b) communications providers to whom general conditions are applicable.
(9) Section 403 applies to the powers of OFCOM to make regulations under this section.
(1) This section applies where regulations under section 71 provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.
(2) OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—
(a) every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in the universal service order;
(b) the market benefits for each designated universal service provider that have accrued to him during that period from his designation and from the application to him of universal service conditions; and
(c) the contribution made under section 71(3) by every person who has made a contribution during that period.
(3) The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71.
(4) Every subsequent report must be prepared in relation to the period of twelve months beginning with the end of the period to which the previous report applied.
(5) Every report under this section—
(a) must be prepared as soon as practicable after the end of the period to which it is to apply; and
(b) must be published as soon as practicable after its preparation is complete.
(6) OFCOM are not required under this section—
(a) to publish any matter that is confidential in accordance with subsection (7) or (8); or
(b) to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.
(7) A matter is confidential under this subsection if—
(a) it relates specifically to the affairs of a particular body; and
(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.
(8) A matter is confidential under this subsection if—
(a) it relates to the private affairs of an individual; and
(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.
(9) The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.
(1) The only conditions that may be set under section 45 as access-related conditions are those authorised by this section.
(2) Access-related conditions may include conditions relating to the provision of such network access and service interoperability as appears to OFCOM appropriate for the purpose of securing—
(a) efficiency on the part of communications providers and persons making associated facilities available;
(b) sustainable competition between them; and
(c) the greatest possible benefit for the end-users of public electronic communications services.
(3) Access-related conditions may include conditions appearing to OFCOM to be appropriate for securing that persons to whom the electronic communications code applies participate, in cases where there are no viable alternative arrangements that may be made, in arrangements for—
(a) sharing the use of electronic communications apparatus; and
(b) apportioning and making contributions towards costs incurred in relation to shared electronic communications apparatus.
(4) Access-related conditions may include one which—
(a) is of a technical or operational nature;
(b) appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with any SMP services condition falling within section 87(3); and
(c) is applied to—
(i) a person who is required by such an SMP services condition to confer any entitlements to network access; or
(ii) a person on whom such an entitlement is or may be conferred in pursuance of a requirement imposed by such an SMP services condition.
(5) Access-related conditions may include conditions containing any provision required by section 75(2).
(1) The conditions that may be set by virtue of section 73(2) include conditions which, for the purpose of securing end-to-end connectivity for the end-users of public electronic communications services provided by means of a series of electronic communications networks—
(a) impose obligations on a person controlling network access to any of those networks; and
(b) require the interconnection of the networks.
(2) The conditions that may be set by virtue of section 73(2) also include such conditions imposing obligations on a person providing facilities for the use of application programme interfaces or electronic programme guides as OFCOM consider to be necessary for securing—
(a) that persons are able to have access to such programme services provided in digital form as OFCOM may determine; and
(b) that the facility for using those interfaces or guides is provided on terms which—
(i) are fair and reasonable; and
(ii) do not involve, or tend to give rise to, any undue discrimination against any person or description of persons.
(3) In this section—
“application programme interface” means a facility for allowing software to make use, in connection with any of the matters mentioned in subsection (4), of facilities contained in other software;
“electronic programme guide” means a facility by means of which a person has access to any service which consists of—
the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services; and
a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;
“end-to-end connectivity” means the facility—
for different end-users of the same public electronic communications service to be able to communicate with each other; and
for the end-users of different such services to be able, each using the service of which he is the end-user, to communicate with each other.
(4) The matters mentioned in subsection (3), in the definition of “application programme interface”, are—
(a) allowing a person to have access to programme services;
(b) allowing a person, other than a communications provider or a person who makes associated facilities available, to make use of an electronic communications network by means of which a programme service is broadcast or otherwise transmitted;
(c) allowing a person to become the end-user of a description of public electronic communications service.
(5) This section is not to be construed as restricting the provision that may be made under section 73(2).
(1) It shall be the duty of OFCOM, when setting a condition falling within section 73(4), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.
(2) It shall be the duty of OFCOM to ensure—
(a) that access-related conditions are applied to every person who provides a conditional access system in relation to a protected programme service; and
(b) that those conditions make all such provision as is required by the provision contained from time to time in Part I of Annex I to the Access Directive (conditions relating to access to digital programme services).
(3) In this section—
“conditional access system” means any system, facility, arrangements or technical measure under or by means of which access to programme services requires—
a subscription to the service or to a service that includes that service; or
an authorisation to view it, or to listen to it, on a particular occasion;
“protected programme service” means a programme service the programmes included in which cannot be viewed or listened to in an intelligible form except by the use of a conditional access system.
(1) This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).
(2) OFCOM must not give effect to a proposal to modify or revoke any of the conditions unless—
(a) they have carried out an analysis for the purpose of determining in accordance with this Chapter whether that person is or remains a person on whom SMP services conditions are capable of being imposed;
(b) they have determined in consequence of that analysis that he is not; and
(c) they are satisfied that the modification or revocation will not have an adverse effect on any or all of the matters mentioned in subsection (3).
(3) Those matters are—
(a) the accessibility to any persons of services that are for the time being included in the list of must-carry services in section 64;
(b) the prospects for effective competition in the market for programme services provided by being broadcast or otherwise transmitted in digital form; and
(c) the prospects for effective competition in the markets for conditional access systems and other associated facilities.
(4) In this section “conditional access system” has the same meaning as in section 75.
(1) It shall be the duty of OFCOM to secure that privileged supplier conditions containing all such provision falling within subsection (3) as they consider appropriate are applied to every public communications provider to whom this section applies.
(2) This section applies to every public communications provider who—
(a) enjoys special or exclusive rights in relation to the provision of any non-communications services; and
(b) is not such a provider in respect only of associated facilities.
(3) The provision that may be contained in a condition set under section 45 as a privileged supplier condition is any provision that OFCOM consider appropriate for any one or more of the following purposes—
(a) requiring the provider to whom it applies to keep separate accounts in relation to his public electronic communications network or public electronic communications service and other matters;
(b) requiring that provider to submit the accounts of the different parts of his undertaking, and any financial report relating to a part of that undertaking, to a qualified auditor for auditing;
(c) requiring the accounts of the different parts of his undertaking to be published;
(d) securing, by means other than the keeping of separate accounts, the structural separation of the different parts of his undertaking.
(4) OFCOM are not required under this section to apply a condition to a person where they are satisfied that that person has an annual turnover in relation to all his communications activities that is less than ?50 million.
(5) Where in a case falling within subsection (4) OFCOM are not required to apply a privileged supplier condition to a person, they may apply such a condition to him if they think fit.
(6) The reference in subsection (4) to a person’s communications activities is a reference to any activities of his that consist in, or are connected with, either or both of the following—
(a) the provision of any one or more electronic communications networks;
(b) the provision of any one or more electronic communications services.
(7) The making, for the purposes of subsection (4), of—
(a) a determination of the period in respect of which a person’s annual turnover in relation to any activities is computed, and
(b) a determination of the amount in Euros of that turnover for any period,
must be in accordance with such rules as OFCOM consider to be reasonable.
(8) OFCOM must publish any rules made by them for the purposes of subsection (7) in such manner as they consider appropriate for bringing them to the attention of the persons who, in their opinion, are likely to be affected by them.
(9) In this section—
“non-communications services”, in relation to a person, means services other than those consisting in, or connected with, the provision by him of—
an electronic communications network; or
an electronic communications service;
“qualified auditor” means a person eligible, in accordance with Part 2 of the Companies Act 1989 (c. 40), for appointment as a company auditor;
“special or exclusive rights” has the same meaning as in Article 86 of the Treaty establishing the European Community.
(1) For the purposes of this Chapter a person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.
(2) References in this section to dominance of a market must be construed in accordance with any applicable provisions of Article 14 of the Framework Directive.
(3) A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.
(4) A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.
(5) The matters that must be taken into account in determining whether a combination of persons enjoys a position of dominance of a services market include, in particular, the matters set out in Annex II to the Framework Directive.
(1) Before making a market power determination, OFCOM must—
(a) identify (by reference, in particular, to area and locality) the markets which in their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and
(b) carry out an analysis of the identified markets.
(2) In identifying or analysing any services market for the purposes of this Chapter, OFCOM must take due account of all applicable guidelines and recommendations which—
(a) have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and
(b) relate to market identification and analysis.
(3) In considering whether to make or revise a market power determination in relation to a services market, OFCOM must take due account of all applicable guidelines and recommendations which—
(a) have been issued or made by the European Commission in pursuance of the provisions of a Community instrument; and
(b) relate to market analysis or the determination of what constitutes significant market power.
(4) The way in which—
(a) a market is to be identified for the purposes of this section, or
(b) a market power determination is to be made,
is by the publication of a notification containing the identification or determination.
(5) Notifications for the purposes of subsection (4)—
(a) may be given separately;
(b) may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or
(c) may be contained in a single notification under section 48(1) with respect to the setting or modification of an SMP condition and either—
(i) the making of the market power determination by reference to which OFCOM set or modify that condition; or
(ii) the making of that market power determination and the identification of the market in relation to which they make that determination.
(6) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.
(7) References in this section to guidelines and recommendations issued by the European Commission and to a Community instrument include references, respectively, to guidelines and recommendations issued after the commencement of this section and to a Community instrument made after the commencement of this section.
(1) Before OFCOM—
(a) identify a market for the purposes of making a market power determination, or
(b) make a market power determination,
they must publish a notification of what they are proposing to do.
(2) Notifications for the purposes of subsection (1)—
(a) may be given separately;
(b) may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or
(c) may be contained in a single notification under section 48(2) with respect to the setting or modification of an SMP condition and either—
(i) the making of the market power determination by reference to which OFCOM are proposing to set or modify that condition; or
(ii) the making of that market power determination and the identification of the market in relation to which they are proposing to make that determination.
(3) A notification under this section relating to a proposal to identify a market or to make a market power determination must—
(a) state that OFCOM are proposing to identify that market or to make that market power determination;
(b) set out the effect of the proposal;
(c) give their reasons for making the proposal; and
(d) specify the period within which representations may be made to OFCOM about their proposal.
(4) That period must be a period of not less than one month after the day of the publication of the notification.
(5) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.
(6) OFCOM may give effect, with or without modifications, to a proposal with respect to which they have given a notification under this section only if—
(a) they have considered every representation about the proposal that is made to them within the period specified in the notification; and
(b) they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.
(7) The power of OFCOM to give effect to such a proposal is subject to sections 82 and 83.
(1) OFCOM must send a copy of every notification published under section 79(4) or 80 to the Secretary of State.
(2) OFCOM must send to the European Commission a copy of every notification published under section 79(4) with respect to a market power determination in relation to a services market.
(3) OFCOM must send a copy of every notification published under section 80 which—
(a) relates to a proposal to identify a services market or to make a market power determination in relation to such a market; and
(b) in OFCOM’s opinion would affect trade between member States,
to the European Commission and to the regulatory authorities of every other member State.
(4) OFCOM must, in every other case in which it appears to them appropriate to do so, send—
(a) to the European Commission, and
(b) to such of the regulatory authorities of the other member States as OFCOM think fit,
a copy of a notification published under section 80 which relates to a proposal to identify a services market or to make a market power determination in relation to such a market.
(1) This section applies, in the case of a notification under section 80 with respect to a proposal—
(a) to identify a particular market; or
(b) to make a market power determination.
(2) If, within the representations period, OFCOM are notified by the European Commission for the purposes of Article 7(4) of the Framework Directive (market identifications that do not conform to Commission recommendations and determinations that affect trade between member States)—
(a) that the Commission considers that giving effect to the proposal would create a barrier in relation to the single European market, or
(b) that the Commission has serious doubts as to whether giving effect to the proposal would be compatible with the requirements of any Community obligations,
OFCOM are not to give effect to the proposal before the end of a further two months beginning with the end of the representations period.
(3) Where, before the end of that two month period, the European Commission makes a decision in accordance with Article 7(4) of the Framework Directive that the proposal should be withdrawn, OFCOM—
(a) must withdraw it; and
(b) shall not be entitled to give effect to it.
(4) In this section “the representations period”, in relation to a notification under section 80, means the period specified in that notification for the making of representations about the proposals contained in it.
Communications Act 2003