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84 Conditions about network access pricing etc. | |
(1) OFCOM are not to set an SMP condition falling within section 83(9) except | |
where— | |
(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 | 5 |
arising from price distortion; and | |
(b) it also appears to them that the setting of the condition is appropriate | |
for the purposes of— | |
(i) promoting efficiency; | |
(ii) promoting sustainable competition; and | 10 |
(iii) conferring the greatest possible benefits on the end-users of | |
public electronic communications services. | |
(2) In setting an SMP condition falling within section 83(9) OFCOM must take | |
account of the extent of the investment in the matters to which the condition | |
relates of the person to whom it is to apply. | 15 |
(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, | |
or | |
(b) so impose a price squeeze, | 20 |
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— | |
(a) have regard to the prices at which services are available in comparable | |
competitive markets; | 25 |
(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 83. | |
85 Conditions about network access in exceptional cases | |
(1) This section applies where— | 30 |
(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 | 35 |
(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 | 40 |
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. | 45 |
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86 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 | 5 |
(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. | 10 |
(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 | 15 |
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— | 20 |
(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 | 25 |
the use of the facility. | |
(5) Where OFCOM set conditions authorised by this section, those conditions may | |
include provision imposing obligations as to 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; | 30 |
(b) the facilities for interconnection that are to be made available to a | |
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 | 35 |
which public electronic communications service provided wholly or | |
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 | 40 |
(ii) by designating in advance the selection that is to apply on every | |
occasion when no such selection as is mentioned in sub- | |
paragraph (i) is made. | |
87 Conditions about regulation of services etc. for end-users | |
(1) Where— | 45 |
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(a) OFCOM have made a determination that a person (“the dominant | |
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 | 5 |
(c) it appears to OFCOM that the test in subsection (2) is satisfied in the | |
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 | 10 |
specified in subsection (3), to perform, or fully to perform, their duties under | |
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 83 to 86. | 15 |
(4) The reference in subsection (2) to the market situation in the relevant market is | |
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 | 20 |
direct in relation to the provision by that provider of any public electronic | |
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 | 25 |
requires him, to the extent that they consider it appropriate— | |
(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 | 30 |
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 | |
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 | 35 |
conditions apply, in relation to the services regulated in accordance | |
with the conditions. | |
(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. | 40 |
88 Conditions about leased lines | |
(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 | 45 |
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(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 | |
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. | 5 |
(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. | |
(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 | 10 |
orientation and transparency in relation to the leased lines identified as | |
mentioned in subsection (1). | |
(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 | 15 |
communications networks. | |
SMP apparatus conditions: subject matter | |
89 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, | 20 |
they may— | |
(a) set such SMP conditions authorised by this section as they consider it | |
appropriate to apply to that person in respect of the supply of electronic | |
communications apparatus; and | |
(b) apply those conditions to that person. | 25 |
(2) The SMP conditions authorised by this section include conditions requiring the | |
dominant supplier to maintain such a separation for accounting purposes | |
between matters relating to the supply of electronic communications | |
apparatus and other matters as may be described in the conditions. | |
(3) The conditions so authorised also include conditions imposing price controls | 30 |
in relation to the supply (whether by sale or hire) of telephones for hardwiring | |
to an electronic communications network. | |
(4) For the purposes of this section a telephone is hardwired to an electronic | |
communications network where, in order for it to be used with that network— | |
(a) it has to be physically attached to apparatus comprised in the network; | 35 |
and | |
(b) the attachment has to be effected by a process that requires the use of a | |
tool. | |
Enforcement of conditions | |
90 Notification of contravention of condition | 40 |
(1) Where OFCOM determine that there are reasonable grounds for believing that | |
a person is contravening, or has contravened, a condition set under section 41, | |
they may give that person a notification under this section. | |
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(2) A notification under this section is one which— | |
(a) sets out the determination made by OFCOM; | |
(b) specifies the condition and contravention in respect of which that | |
determination has been made; and | |
(c) specifies the period during which the person notified has an | 5 |
opportunity of doing the things specified in subsection (3). | |
(3) Those things are— | |
(a) making representations about the matters notified; | |
(b) complying with notified conditions of which he remains in | |
contravention; and | 10 |
(c) remedying the consequences of notified contraventions. | |
(4) Subject to subsections (5) to (7) and section 94(3), the period for doing those | |
things must be the period of one month beginning with the day after the one | |
on which the notification was given. | |
(5) OFCOM may, if they think fit, allow a longer period for doing those things | 15 |
either— | |
(a) by specifying a longer period in the notification; or | |
(b) by subsequently, on one or more occasions, extending the specified | |
period. | |
(6) The person notified shall have a shorter period for doing those things if a | 20 |
shorter period is agreed between OFCOM and the person notified. | |
(7) The person notified shall also have a shorter period if— | |
(a) OFCOM have reasonable grounds for believing that the contravention | |
is a repeated contravention; | |
(b) they have determined that, in those circumstances, a shorter period | 25 |
would be appropriate; and | |
(c) the shorter period has been specified in the notification. | |
(8) A notification under this section— | |
(a) may be given in respect of more than one contravention; and | |
(b) if it is given in respect of a continuing contravention, may be given in | 30 |
respect of any period during which the contravention has continued. | |
(9) Where a notification under this section has been given to a person in respect of | |
a contravention of a condition, OFCOM may give a further notification in | |
respect of the same contravention of that condition if, and only if— | |
(a) the contravention is one occurring after the time of the giving of the | 35 |
earlier notification; | |
(b) the contravention is a continuing contravention and the subsequent | |
notification is in respect of so much of a period as falls after a period to | |
which the earlier notification relates; or | |
(c) the earlier notification has been withdrawn without a penalty having | 40 |
been imposed in respect of the notified contravention. | |
(10) OFCOM must not give a notification under this section in a case in which— | |
(a) they decide that the most appropriate way of proceeding in relation to | |
the contravention in question would be under the Competition Act | |
1998 (c. 41); and | 45 |
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(b) they publish a statement to that effect in such manner as they consider | |
appropriate for bringing their decision to the attention of the persons | |
who, in their opinion, are likely to be affected by it. | |
(11) For the purposes of this section a contravention is a repeated contravention, in | |
relation to a notification with respect to that contravention, if— | 5 |
(a) a previous notification under this section has been given in respect of | |
the same contravention or in respect of another contravention of the | |
same condition; and | |
(b) the subsequent notification is given no more than twelve months after | |
the day of the making by OFCOM of a determination for the purposes | 10 |
of section 91(2) or 92(2) that the contravention to which the previous | |
notification related did occur. | |
91 Enforcement notification for contravention of conditions | |
(1) This section applies where— | |
(a) a person (“the notified provider”) has been given a notification under | 15 |
section 90; | |
(b) OFCOM have allowed the notified provider an opportunity of making | |
representations about the matters notified; and | |
(c) the period allowed for the making of the representations has expired. | |
(2) OFCOM may give the notified provider an enforcement notification if they are | 20 |
satisfied— | |
(a) that he has, in one or more of the respects notified, been in | |
contravention of a condition specified in the notification under section | |
90; and | |
(b) that he has not, during the period allowed under that section, taken all | 25 |
such steps as they consider appropriate— | |
(i) for complying with that condition; and | |
(ii) for remedying the consequences of the notified contravention of | |
that condition. | |
(3) An enforcement notification is a notification which imposes one or both of the | 30 |
following requirements on the notified provider— | |
(a) a requirement to take such steps for complying with the notified | |
condition as may be specified in the notification; | |
(b) a requirement to take such steps for remedying the consequences of the | |
notified contravention as may be so specified. | 35 |
(4) A decision of OFCOM to give an enforcement notification to a person— | |
(a) must be notified by them to that person, together with the reasons for | |
the decision, no later than one week after the day on which it is taken; | |
and | |
(b) must fix a reasonable period for the taking of the steps required by the | 40 |
notification. | |
(5) It shall be the duty of a person to whom an enforcement notification has been | |
given to comply with it. | |
(6) That duty shall be enforceable in civil proceedings by OFCOM— | |
(a) for an injunction; | 45 |
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(b) for specific performance of a statutory duty under section 45 of the | |
Court of Session Act 1988 (c. 36); or | |
(c) for any other appropriate remedy or relief. | |
92 Penalties for contravention of conditions | |
(1) This section applies (in addition to section 91) where— | 5 |
(a) a person (“the notified provider”) has been given a notification under | |
section 90; | |
(b) OFCOM have allowed the notified provider an opportunity of making | |
representations about the matters notified; and | |
(c) the period allowed for the making of the representations has expired. | 10 |
(2) OFCOM may impose a penalty on the notified provider if he— | |
(a) has, in one or more of the respects notified, been in contravention of a | |
condition specified in the notification under section 90; and | |
(b) has not, during the period allowed under that section, taken the steps | |
OFCOM consider appropriate— | 15 |
(i) for complying with the notified condition; and | |
(ii) for remedying the consequences of the notified contravention of | |
that condition. | |
(3) Where a notification under section 90 relates to more than one contravention, | |
a separate penalty may be imposed in respect of each contravention. | 20 |
(4) Where such a notification relates to a continuing contravention, no more than | |
one penalty may be imposed in respect of the period of contravention specified | |
in the notification. | |
(5) OFCOM may also impose a penalty on the notified provider if he has | |
contravened, or is contravening, a requirement of an enforcement notification | 25 |
given under section 91 in respect of the notified contravention. | |
(6) Where OFCOM impose a penalty on a person under this section, they shall— | |
(a) within one week of making their decision to impose the penalty, notify | |
that person of that decision and of their reasons for that decision; and | |
(b) in that notification, fix a reasonable period after it is given as the period | 30 |
within which the penalty is to be paid. | |
(7) A penalty imposed under this section— | |
(a) must be paid to OFCOM; and | |
(b) if not paid within the period fixed by them, is to be recoverable by them | |
accordingly. | 35 |
93 Amount of penalty under s. 92 | |
(1) The amount of a penalty imposed under section 92 is to be such amount not | |
exceeding ten per cent. of the turnover of the notified provider’s relevant | |
business for the relevant period as OFCOM determine to be— | |
(a) appropriate; and | 40 |
(b) proportionate to the contravention in respect of which it is imposed. | |
(2) In making that determination OFCOM must have regard to— | |
(a) any representations made to them by the notified provider; | |
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