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(5) Where on such a review OFCOM conclude that the appropriate markets have | |
changed— | |
(a) they shall identify the markets they now consider to be the appropriate | |
ones; and | |
(b) those markets shall be the identified markets for the purposes of the | 5 |
further analysis. | |
(6) Where on such a review OFCOM conclude that there is no person at all with | |
significant market power in relation to the identified market— | |
(a) they must so inform the Secretary of State; and | |
(b) the Secretary of State may by order remove or restrict OFCOM’s power | 10 |
under this Chapter to set SMP apparatus conditions by reference to that | |
market. | |
(7) Sections 76, 77 and 78(1) apply— | |
(a) in relation to the identification of a apparatus market for the purposes | |
of reviewing a market power determination under this section, as they | 15 |
apply in relation to the identification of such a market for the purpose | |
of making a market determination; and | |
(b) in relation to the review of such a determination, as they apply in | |
relation to the making of such a determination. | |
83 Cases where review required | 20 |
(1) OFCOM must not set an SMP services condition by a notification which does | |
not also make the market power determination by reference to which the | |
condition is set unless— | |
(a) the condition is set by reference to a market power determination | |
which has been reviewed under section 81 and, in consequence of that | 25 |
review, is confirmed in the notification setting the condition; or | |
(b) the condition is set by reference to a market power determination made | |
in relation to a market in which OFCOM are satisfied there has been no | |
material change since the determination was made. | |
(2) OFCOM must not modify or revoke SMP services conditions applying to a | 30 |
person except in a case falling within subsection (3) or (4). | |
(3) The first case is where, for the purpose of determining whether to make the | |
modification or revocation, OFCOM have— | |
(a) carried out a further analysis under section 81 of the market in question; | |
and | 35 |
(b) reviewed the market power determination for the time being in force in | |
that person’s case. | |
(4) The second case is where OFCOM are satisfied that there has not— | |
(a) in the case of an unmodified condition, since the condition was set, or | |
(b) in any other case, since the condition was last modified, | 40 |
been a material change in the market identified or otherwise used for the | |
purposes of the market power determination by reference to which the | |
condition was set or last modified. | |
(5) OFCOM must not modify SMP apparatus conditions applying to a person | |
except where, for the purpose of determining whether to make the | 45 |
modification or revocation, they have— | |
| |
| |
|
| |
| |
(a) carried out a further analysis under section 82 of the market in question; | |
and | |
(b) reviewed the market power determination for the time being in force in | |
that person’s case. | |
(6) A change is a material change for the purposes of subsection (1) or (4) if it is one | 5 |
that is material to— | |
(a) the setting of the condition in question; or | |
(b) the modification or revocation in question. | |
SMP services conditions: subject matter | |
84 Conditions about network access etc. | 10 |
(1) Where OFCOM have made a determination that a person to whom this section | |
applies (“the dominant provider”) has significant market power in an | |
identified services market, they shall— | |
(a) set such SMP conditions authorised by this section as they consider it | |
appropriate to apply to that person in respect of the relevant network | 15 |
or relevant facilities; and | |
(b) apply those conditions to that person. | |
(2) This section applies to— | |
(a) a person who provides a public electronic communications network; | |
and | 20 |
(b) a person who makes available facilities that are associated facilities by | |
reference to such a network. | |
(3) This section authorises SMP conditions requiring the dominant provider to | |
give such entitlements as OFCOM may from time to time direct as respects— | |
(a) the provision of network access to the relevant network; | 25 |
(b) the use of the relevant network; and | |
(c) the availability of the relevant facilities. | |
(4) In determining what conditions authorised by subsection (3) to set in a | |
particular case, OFCOM must take into account, in particular, the following | |
factors— | 30 |
(a) the technical and economic viability, having regard to the state of | |
market development, of installing and using facilities that would make | |
the proposed network access unnecessary; | |
(b) the feasibility of the provision of the proposed network access; | |
(c) the investment made by the person initially providing or making | 35 |
available the network or other facility in respect of which an | |
entitlement to network access is proposed; | |
(d) the need to secure effective competition in the long term; | |
(e) any rights to intellectual property that are relevant to the proposal; and | |
(f) the desirability of securing that electronic communications services are | 40 |
provided that are available throughout the member States. | |
(5) The conditions authorised by subsection (3) may include provision— | |
(a) for securing fairness and reasonableness in the way in which requests | |
for network access are made and responded to; and | |
| |
| |
|
| |
| |
(b) for securing that the obligations contained in the conditions are | |
complied with within the periods and at the times required by or under | |
the conditions. | |
(6) The SMP conditions authorised by this section also include one or more of the | |
following— | 5 |
(a) a condition requiring the dominant provider not to discriminate | |
unduly against particular persons, or against a particular description of | |
persons, in relation to matters connected with network access to the | |
relevant network or with the availability of the relevant facilities; | |
(b) a condition requiring the dominant provider to publish, in such | 10 |
manner as OFCOM may from time to time direct, all such information | |
as they may direct for the purpose of securing transparency in relation | |
to such matters; | |
(c) a condition requiring the dominant provider to publish, in such | |
manner as OFCOM may from time to time direct, the terms and | 15 |
conditions on which he is willing to enter into an access contract; | |
(d) a condition requiring the terms and conditions on which the dominant | |
provider is willing to enter into an access contract to include such terms | |
and conditions as may be specified or described in the condition; | |
(e) a condition requiring the dominant provider to make such | 20 |
modifications as OFCOM may direct of any offer by that provider | |
which sets out the terms and conditions on which he is willing to enter | |
into an access contract. | |
(7) The SMP conditions authorised by this section also include conditions | |
requiring the dominant provider to maintain a separation for accounting | 25 |
purposes between such different matters relating— | |
(a) to network access to the relevant network, or | |
(b) to the availability of the relevant facilities, | |
as OFCOM may from time to time direct. | |
(8) The SMP conditions authorised by subsection (7) include conditions imposing | 30 |
requirements about the accounting methods to be used in maintaining the | |
separation. | |
(9) The SMP conditions authorised by this section also include (subject to section | |
85) conditions imposing on the dominant provider— | |
(a) such price controls as OFCOM may direct in relation to matters | 35 |
connected with the provision of network access to the relevant | |
network, or with the availability of the relevant facilities; | |
(b) such rules as they may make in relation to those matters about the | |
recovery of costs and cost orientation; | |
(c) such rules as they may make for those purposes about the use of cost | 40 |
accounting systems; and | |
(d) obligations to adjust prices in accordance with such directions given by | |
OFCOM as they may consider appropriate. | |
(10) The SMP conditions authorised by subsection (9) include conditions requiring | |
the application of presumptions in the fixing and determination of costs and | 45 |
charges for the purposes of the price controls, rules and obligations imposed | |
by virtue of that subsection. | |
(11) Where OFCOM set a condition authorised by this section which imposes rules | |
on the dominant provider about the use of cost accounting systems, it shall be | |
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| |
| |
(11) their duty also to set, and to apply to him, an SMP condition which imposes on | |
him an obligation— | |
(a) to make arrangements for a description to be made available to the | |
public of the cost accounting system used in pursuance of that | |
condition; and | 5 |
(b) to include in that description details of— | |
(i) the main categories under which costs are brought into account | |
for the purposes of that system; and | |
(ii) the rules applied for the purposes of that system with respect to | |
the allocation of costs. | 10 |
(12) In this section— | |
“access contract” means— | |
(a) a contract for the provision by a person to whom this section | |
applies to another person of network access to the relevant | |
network; or | 15 |
(b) a contract under which the relevant facilities are made available | |
by a person to whom this section applies to another person; | |
“the relevant facilities”, in relation to a person to whom this section | |
applies, means the associated facilities made available by that person in | |
relation to a public electronic communications network; and | 20 |
“the relevant network”, in relation to such a person, means the public | |
electronic communications network provided by him. | |
85 Conditions about network access pricing etc. | |
(1) OFCOM are not to set an SMP condition falling within section 84(9) except | |
where— | 25 |
(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— | 30 |
(i) promoting efficiency; | |
(ii) promoting sustainable competition; and | |
(iii) conferring the greatest possible benefits on the end-users of | |
public electronic communications services. | |
(2) In setting an SMP condition falling within section 84(9) OFCOM must take | 35 |
account of the extent of the investment in the matters to which the condition | |
relates of the person to whom it is to apply. | |
(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, | 40 |
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— | 45 |
(a) have regard to the prices at which services are available in comparable | |
competitive markets; | |
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| |
|
| |
| |
(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 84. | |
86 Conditions about network access in exceptional cases | |
(1) This section applies where— | 5 |
(a) OFCOM have made a determination that a person (“the dominant | |
provider”) has significant market power in an identified services | |
market; | |
(b) that person is the provider of an electronic communications network or | |
a person who makes associated facilities available; and | 10 |
(c) OFCOM consider that there are exceptional circumstances making it | |
appropriate for conditions with respect to the provision of network | |
access to be applied to the dominant provider in addition to those that | |
are required to be or may be applied to him apart from this section. | |
(2) OFCOM may set the additional SMP conditions and apply them to the | 15 |
dominant provider if— | |
(a) they have submitted the additional conditions to the European | |
Commission for approval; and | |
(b) the Commission has approved the imposition on the dominant | |
provider of the obligations contained in those conditions. | 20 |
87 Conditions about carrier selection and pre-selection | |
(1) This section applies where— | |
(a) OFCOM have made a determination that a person (“the dominant | |
provider”) has significant market power in an identified services | |
market; and | 25 |
(b) it appears to OFCOM that the market is a market relating to services for | |
the provision of public electronic communications networks for use by | |
means of connections at fixed locations. | |
(2) It shall be the duty of OFCOM to set, and to apply to the dominant provider, | |
such SMP conditions authorised by this section as they think fit. | 30 |
(3) The SMP conditions authorised by this section are conditions requiring the | |
dominant provider to do one or both of the following— | |
(a) to make a relevant connection facility available to every person to | |
whom he provides a public electronic communications service; | |
(b) for the purpose of making such a connection facility available to such | 35 |
persons, to make facilities for interconnection available to a person | |
providing an electronic communications service. | |
(4) Where OFCOM set a condition requiring the dominant provider to make a | |
relevant connection facility available, they shall also set such SMP conditions | |
as they consider appropriate— | 40 |
(a) with respect to the relationship to costs of any prices fixed for the use | |
of the facility; and | |
(b) for the purpose of securing that prices and other charges imposed on | |
the persons to whom public electronic communications services are | |
provided by the dominant provider do not constitute a disincentive to | 45 |
the use of the facility. | |
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| |
|
| |
| |
(5) Where OFCOM set conditions authorised by this section, those conditions may | |
include provision imposing obligations as to the manner in which one or both | |
of the following are to be made available in accordance with the conditions— | |
(a) the relevant connection facility in question; | |
(b) the facilities for interconnection that are to be made available to a | 5 |
person providing an electronic communications service. | |
(6) In this section “relevant connection facility” is a facility which— | |
(a) allows a person to whom a public electronic communications service is | |
provided by means of an electronic communications network to select | |
which public electronic communications service provided wholly or | 10 |
partly by means of that network is the service that he wishes to use; and | |
(b) enables that selection to be made either— | |
(i) by the use of a telephone number on each separate occasion on | |
which a selection is made; or | |
(ii) by designating in advance the selection that is to apply on every | 15 |
occasion when no such selection as is mentioned in sub- | |
paragraph (i) is made. | |
88 Conditions about regulation of services etc. for end-users | |
(1) Where— | |
(a) OFCOM have made a determination that a person (“the dominant | 20 |
provider”) has significant market power in an identified services | |
market (“the relevant market”), | |
(b) the relevant market is one for the end-users of public electronic | |
communications services that are available in that market, and | |
(c) it appears to OFCOM that the test in subsection (2) is satisfied in the | 25 |
case of that provider, | |
they shall set, and apply to that provider, such SMP conditions authorised by | |
this section as they consider appropriate. | |
(2) That test is that OFCOM are unable, by the setting of conditions of the sorts | |
specified in subsection (3), to perform, or fully to perform, their duties under | 30 |
section 4 in relation to the market situation in the relevant market. | |
(3) The sorts of conditions referred to in subsection (2) are— | |
(a) access-related conditions; and | |
(b) SMP conditions authorised or required by sections 84 to 87. | |
(4) The reference in subsection (2) to the market situation in the relevant market is | 35 |
a reference to the situation revealed by such market analyses of that market as | |
may have been carried out for the purposes of this Chapter. | |
(5) The SMP conditions authorised by this section are conditions imposing on the | |
dominant provider such regulatory controls as OFCOM may from time to time | |
direct in relation to the provision by that provider of any public electronic | 40 |
communications service to the end-users of that service. | |
(6) Where OFCOM set a condition which is authorised by this section and imposes | |
regulatory control on tariffs or other matters to which costs are relevant, they | |
shall also set, and apply to the dominant provider, an SMP condition which | |
requires him, to the extent that they consider it appropriate— | 45 |
(a) to use such cost accounting systems as may be determined by them; | |
| |
| |
|
| |
| |
(b) to have the use of those systems audited annually by a qualified | |
auditor; and | |
(c) to publish an annual statement about compliance by the dominant | |
provider with the obligations imposed by virtue of paragraph (a). | |
(7) It shall be the duty of OFCOM to provide the European Commission with all | 5 |
such information as the Commission requires them to provide about— | |
(a) conditions authorised by this section that are set by OFCOM; and | |
(b) the cost accounting systems used, by the persons to whom those | |
conditions apply, in relation to the services regulated in accordance | |
with the conditions. | 10 |
(8) In this section “qualified auditor” means a person eligible, in accordance with | |
Part 2 of the Companies Act 1989 (c. 40), for appointment as a company | |
auditor. | |
89 Conditions about leased lines | |
(1) This section applies where— | 15 |
(a) OFCOM have made a determination that a person (“the dominant | |
provider”) has significant market power in an identified services | |
market; and | |
(b) it appears to OFCOM that the market in relation to which that market | |
power determination has been made is a market relating to the | 20 |
provision of any such leased lines as are for the time being identified by | |
the European Commission in the List of Standards published in the | |
Official Journal of the European Communities. | |
(2) It shall be the duty of OFCOM to set, and to apply to the dominant provider, | |
such SMP conditions authorised by this section as they consider appropriate. | 25 |
(3) The SMP conditions authorised by this section are conditions for applying, so | |
far as required by the provisions for the time being contained in Annex VII of | |
Universal Service Directive, the principles of non-discrimination, cost | |
orientation and transparency in relation to the leased lines identified as | |
mentioned in subsection (1). | 30 |
(4) In this section “leased line” means an electronic communications service the | |
provision of which consists in the reservation of a fixed amount of transmission | |
capacity between fixed points on the same or different electronic | |
communications networks. | |
SMP apparatus conditions: subject matter | 35 |
90 Conditions about apparatus supply | |
(1) Where OFCOM have made a determination that a person (“the dominant | |
supplier”) has significant market power in an identified apparatus market, | |
they may— | |
(a) set such SMP conditions authorised by this section as they consider it | 40 |
appropriate to apply to that person in respect of the supply of electronic | |
communications apparatus; and | |
(b) apply those conditions to that person. | |
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