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(c) the setting of a condition the setting of which requires such a | |
determination to have been made; | |
(d) the modification or revocation of such a condition. | |
(4) OFCOM must not do any of the things mentioned in subsection (3) except in | |
accordance with arrangements maintained under that subsection. | 5 |
(5) Those arrangements may include arrangements requiring OFCOM, when | |
doing any of those things, to comply with— | |
(a) a decision made, by one or more other regulatory authorities; or | |
(b) a decision made by a person appointed under the arrangements to act | |
on behalf of some or all of the relevant regulatory authorities. | 10 |
(6) In this section— | |
“market area”, in relation to a services market identified by the European | |
Commission as a transnational market, means the area identified by | |
that Commission as the area for which the market operates; and | |
“relevant regulatory authorities”, in relation to such a market, means the | 15 |
regulatory authorities for each member State the whole or a part of | |
which is comprised in the market area. | |
80 Review of services market identifications and determinations | |
(1) This section applies where OFCOM have identified and analysed a services | |
market for the purposes of making a market power determination. | 20 |
(2) OFCOM must, at such intervals as they consider appropriate, carry out further | |
analyses of the identified market for one or both of the following purposes— | |
(a) reviewing market power determinations made on the basis of an earlier | |
analysis; | |
(b) deciding whether to make proposals for the modification of SMP | 25 |
conditions set by reference to a market power determination made on | |
such a basis. | |
(3) It shall be the duty of OFCOM to carry out such a further analysis of a services | |
market as soon as reasonably practicable after recommendations are made by | |
the European Commission that affect the matters that were taken into account, | 30 |
or could have been taken into account, in the case of the last analysis by | |
OFCOM of that market. | |
(4) Where on, or in consequence of, a further analysis under this section, OFCOM | |
determine that a person to whom any SMP conditions apply is no longer a | |
person with significant market power in that market, they must revoke every | 35 |
SMP services condition applied to that person by reference to the market | |
power determination made on the basis of the earlier analysis. | |
(5) Before carrying out a further analysis under subsection (2), OFCOM may | |
review any decision of theirs identifying the markets which it was appropriate | |
to consider for the purpose of carrying out an earlier analysis. | 40 |
(6) Where, on such a review, OFCOM conclude that the appropriate markets have | |
changed— | |
(a) they must 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 | 45 |
further analysis. | |
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(7) Sections 75 to 79 apply— | |
(a) in relation to the identification of a services market for the purposes of | |
reviewing a market power determination under this section, as they | |
apply in relation to the identification of such a market for the purpose | |
of making a market determination; and | 5 |
(b) in relation to the review of such a determination, as they apply in | |
relation to the making of such a determination. | |
81 Review of apparatus market identifications and determinations | |
(1) This section applies where OFCOM have identified and analysed an apparatus | |
market for the purposes of making a market power determination. | 10 |
(2) OFCOM must, at such intervals as they consider appropriate, carry out further | |
analyses of the identified market for one or both of the following purposes— | |
(a) reviewing market power determinations made on the basis of an earlier | |
analysis; | |
(b) deciding whether to make proposals for the modification of SMP | 15 |
conditions set by reference to any such market power determination. | |
(3) Where on, or in consequence of, a further analysis under this section, OFCOM | |
determine that a person to whom any SMP conditions apply is no longer a | |
person with significant market power in that market, they shall revoke every | |
SMP apparatus condition applied to that person by reference to the market | 20 |
power determination made on the basis of the earlier analysis. | |
(4) Before carrying out any further analysis under subsection (2), OFCOM may | |
review any decision of theirs identifying the markets which it was appropriate | |
to consider for the purpose of carrying out any earlier analysis. | |
(5) Where on such a review OFCOM conclude that the appropriate markets have | 25 |
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 | |
further analysis. | 30 |
(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 | |
under this Chapter to set SMP apparatus conditions by reference to that | 35 |
market. | |
(7) Sections 75, 76 and 77(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 | |
apply in relation to the identification of such a market for the purpose | 40 |
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. | |
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82 Cases where review required | |
(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 | 5 |
which has been reviewed under section 80 and, in consequence of that | |
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. | 10 |
(2) OFCOM must not modify or revoke SMP services conditions applying to a | |
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 80 of the market in question; | 15 |
and | |
(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 | 20 |
(b) in any other case, since the condition was last modified, | |
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 | 25 |
except where, for the purpose of determining whether to make the | |
modification or revocation, they have— | |
(a) carried out a further analysis under section 81 of the market in question; | |
and | |
(b) reviewed the market power determination for the time being in force in | 30 |
that person’s case. | |
(6) A change is a material change for the purposes of subsection (1) or (4) if it is one | |
that is material to— | |
(a) the setting of the condition in question; or | |
(b) the modification or revocation in question. | 35 |
SMP services conditions: subject matter | |
83 Conditions about network access etc. | |
(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— | 40 |
(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 | |
or relevant facilities; and | |
(b) apply those conditions to that person. | |
(2) This section applies to— | 45 |
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(a) a person who provides a public electronic communications network; | |
and | |
(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 | 5 |
give such entitlements as OFCOM may from time to time direct as respects— | |
(a) the provision of network access to the relevant network; | |
(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 | 10 |
particular case, OFCOM must take into account, in particular, the following | |
factors— | |
(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; | 15 |
(b) the feasibility of the provision of the proposed network access; | |
(c) the investment made by the person initially providing or making | |
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; | 20 |
(e) any rights to intellectual property that are relevant to the proposal; and | |
(f) the desirability of securing that electronic communications services are | |
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 | 25 |
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 | 30 |
following— | |
(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;. | 35 |
(b) a condition requiring the dominant provider to publish, in such | |
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 | 40 |
manner as OFCOM may from time to time direct, the terms and | |
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; | 45 |
(e) a condition requiring the dominant provider to make such | |
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. | |
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(7) The SMP conditions authorised by this section also include conditions | |
requiring the dominant provider to maintain a separation for accounting | |
purposes between such different matters relating— | |
(a) to network access to the relevant network, or | |
(b) to the availability of the relevant facilities, | 5 |
as OFCOM may from time to time direct. | |
(8) The SMP conditions authorised by subsection (7) include conditions imposing | |
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 | 10 |
84) conditions imposing on the dominant provider— | |
(a) such price controls as OFCOM may direct in relation to matters | |
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 | 15 |
recovery of costs and cost orientation; | |
(c) such rules as they may make for those purposes about the use of cost | |
accounting systems; and | |
(d) obligations to adjust prices in accordance with such directions given by | |
OFCOM as they may consider appropriate. | 20 |
(10) The SMP conditions authorised by subsection (9) include conditions requiring | |
the application of presumptions in the fixing and determination of costs and | |
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 | 25 |
on the dominant provider about the use of cost accounting systems, it shall be | |
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 | 30 |
condition; and | |
(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 | 35 |
the allocation of costs. | |
(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 | 40 |
network; or | |
(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 | 45 |
relation to a public electronic communications network; and | |
“the relevant network”, in relation to such a person, means the public | |
electronic communications network provided by him. | |
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