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43 Tests for setting or modifying conditions | |
(1) OFCOM must not, in exercise or performance of any power or duty under this | |
Chapter— | |
(a) set a condition under section 41, or | |
(b) modify such a condition, | 5 |
unless they are satisfied that the condition or (as the case may be) the | |
modification satisfies the test in subsection (2). | |
(2) That test is that the condition or modification is— | |
(a) objectively justifiable in relation to the networks, services, facilities | |
apparatus or directories to which it relates; | 10 |
(b) not such as to discriminate unduly against particular persons or against | |
a particular description of persons; | |
(c) proportionate to what the condition or modification is intended to | |
achieve; and | |
(d) in relation to what it is intended to achieve, transparent. | 15 |
44 Procedure for setting, modifying and revoking conditions | |
(1) Subject to the following provisions of this Chapter— | |
(a) the way in which conditions are to be set or modified under section 41 | |
is by the publication of a notification setting out the conditions or | |
modifications; and | 20 |
(b) the way in which such a condition is to be revoked is by the publication | |
of a notification stating that the condition is revoked. | |
(2) Before setting conditions under section 41, or modifying or revoking a | |
condition so set, OFCOM must publish a notification— | |
(a) stating that they are proposing to set, modify or revoke the conditions | 25 |
that are specified in the notification; | |
(b) setting out the effect of those conditions, modifications or revocations; | |
(c) giving their reasons for making the proposal; and | |
(d) specifying the period within which representations may be made to | |
OFCOM about their proposal. | 30 |
(3) That period must end no less than one month after the day of the publication | |
of the notification. | |
(4) In the case of a notification under subsection (2) with respect to an SMP | |
condition, the applicable requirements of sections 75 to 82 must also be | |
complied with. | 35 |
(5) OFCOM may give effect, with or without modifications, to a proposal with | |
respect to which they have published a notification under subsection (2) only | |
if— | |
(a) they have considered every representation about the proposal that is | |
made to them within the period specified in the notification; and | 40 |
(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. | |
(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 | 45 |
notification— | |
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(a) in the case of a notification setting general conditions, to the attention | |
of such persons as OFCOM consider appropriate; and | |
(b) in any other case, to the attention of the persons who, in OFCOM’s | |
opinion, are likely to be affected by the contents of the notification. | |
(7) Nothing in the following provisions of this Chapter imposing a duty on | 5 |
OFCOM to set or modify a condition shall be taken as dispensing with any of | |
the requirements of this section. | |
45 Directions and approvals for the purposes of a s. 41 condition | |
(1) This section applies where— | |
(a) a condition set under section 41 has effect by reference to directions, | 10 |
approvals or consents given by a person (whether OFCOM themselves | |
or another); and | |
(b) that person is proposing to give a direction, approval or consent that | |
affects the operation of that condition or to modify or withdraw a | |
direction, approval or consent so as to affect the condition’s operation. | 15 |
(2) A person must not give, modify or withdraw the direction, approval or consent | |
unless he is satisfied that to do so is— | |
(a) objectively justifiable in relation to the networks, services, facilities, | |
apparatus or directories to which it relates; | |
(b) not such as to discriminate unduly against particular persons or against | 20 |
a particular description of persons; | |
(c) proportionate to what it is intended to achieve; and | |
(d) in relation to what it is intended to achieve, transparent. | |
(3) In giving, modifying or withdrawing the direction, approval or consent, a | |
person other than OFCOM shall be under the same duty as OFCOM to act in | 25 |
accordance with the six Community requirements set out in section 4. | |
(4) Before the direction, approval or consent is given, modified or withdrawn, a | |
notification must be given— | |
(a) stating that there is a proposal to give, modify or withdraw it; | |
(b) identifying the person whose proposal it is; | 30 |
(c) setting out the direction, approval or consent to which the proposal | |
relates; | |
(d) setting out the effect of the direction, approval or consent or of its | |
proposed modification or withdrawal; | |
(e) giving reasons for the making of the proposal; and | 35 |
(f) specifying the period within which representations may be made to | |
about the proposal to the person whose proposal it is. | |
(5) That period must be one ending not less than one month after the day of the | |
publication of the notification. | |
(6) In a case in which— | 40 |
(a) a person other than OFCOM is proposing to give, modify or withdraw | |
a direction, approval or consent, and | |
(b) the condition for the purposes of which the direction, approval or | |
consent has effect, or will have effect, provides for notifications of | |
proposals for the purposes of that condition to be given by that person, | 45 |
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the obligation of publishing the notification for the purposes of subsection (4) | |
of that proposal falls on that person. | |
(7) In any other case, the obligation of publishing a notification for the purposes of | |
subsection (4) falls on OFCOM. | |
(8) The person who is authorised to give the direction, approval or consent may | 5 |
give effect, with or without modifications, to a proposal with respect to which | |
a notification has been given under subsection (4) only if— | |
(a) he has considered every representation about the proposal that is made | |
to him within the period specified in the notification; and | |
(b) he has had regard to every international obligation of the United | 10 |
Kingdom (if any) which has been notified to OFCOM for the purposes | |
of this paragraph by the Secretary of State. | |
(9) The publication of a notification under this section must be in such manner as | |
appears to the person publishing it to be appropriate for bringing the contents | |
of the notification to the attention of such persons as he considers appropriate. | 15 |
46 Delivery of copies of notifications etc. | |
(1) The relevant person must send to the Secretary of State a copy of— | |
(a) every notification published under section 44(1) or (2); | |
(b) a copy of every notification published under section 45(4); | |
(c) a copy of every direction, approval or consent given for the purpose of | 20 |
giving effect to a proposal required to be published under section 45(4); | |
and | |
(d) a copy of every instrument modifying or withdrawing a direction, | |
approval or consent for the purpose of giving effect to such a proposal. | |
(2) The relevant person must send to the European Commission— | 25 |
(a) a copy of every notification published under section 44(1) with respect | |
to an SMP services condition; | |
(b) a copy of every direction, approval or consent given for the purposes of | |
such a condition; and | |
(c) a copy of every instrument modifying or withdrawing such a direction, | 30 |
approval or consent. | |
(3) OFCOM must send to the European Commission and to the regulatory | |
authorities of every other member State a copy of every notification published | |
under section 44(2) with respect to a proposal which— | |
(a) relates to the setting modification or revocation of an access-related | 35 |
condition falling within section 69(2) or (4) or of an SMP services | |
condition; and | |
(b) is a proposal which, in OFCOM’s opinion, would affect trade between | |
member States. | |
(4) The relevant person must send to the European Commission and to the | 40 |
regulatory authorities of every other member State a copy of every notification | |
published under section 45(4) with respect to a proposal which— | |
(a) relates to the giving of a direction, approval or consent for the purposes | |
of— | |
(i) an access-related condition falling within section 69(2) or (4), or | 45 |
(ii) an SMP services condition, | |
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or to the modification or withdrawal of such a direction, approval or | |
consent; and | |
(b) is a proposal which, in OFCOM’s opinion, would affect trade between | |
member States. | |
(5) The relevant person must, in every other case in which it appears to him | 5 |
appropriate to do so, send a copy of— | |
(a) every notification published under section 44(1) or (2) or 45(4), | |
(b) every direction, approval or consent given for the purposes of a | |
condition set under section 41, and | |
(c) every instrument modifying or withdrawing such a direction, approval | 10 |
or consent, | |
to the European Commission and to such of the regulatory authorities of the | |
other member States as the relevant person thinks fit. | |
(6) Subsection (5) does not apply where— | |
(a) the notification or the notified proposal relates to an SMP apparatus | 15 |
condition, or to a direction, approval or consent for the purposes of | |
such a condition; | |
(b) the direction, approval or consent given, modified or withdrawn is for | |
the purposes of such a condition. | |
(7) In this section “the relevant person”, in relation to a notification, direction, | 20 |
approval or consent— | |
(a) except in a case falling within paragraph (b), means the person by | |
whom it is published or (as the case may be) the person by whom it has | |
been or is to be given, modified or withdrawn; and | |
(b) in the case of a direction, approval or consent given, modified or | 25 |
withdrawn by a person other than OFCOM for the purpose of giving | |
effect to a proposal published by OFCOM under section 45(4), means | |
OFCOM. | |
General conditions: subject matter | |
47 Matters to which general conditions may relate | 30 |
(1) Subject to sections 48 to 60, the only conditions that may be set under section | |
41 as general conditions are conditions falling within one or more of the | |
following paragraphs— | |
(a) conditions making such provision as OFCOM consider appropriate for | |
protecting the interests of the end-users of public electronic | 35 |
communications services; | |
(b) conditions making such provision as OFCOM consider appropriate for | |
securing service interoperability and for securing, or otherwise relating | |
to, network access; | |
(c) conditions making such provision as OFCOM consider appropriate for | 40 |
securing the proper and effective functioning of public electronic | |
communications networks; | |
(d) conditions for giving effect to determinations or regulations made | |
under section 67; | |
(e) conditions requiring or regulating the provision, availability and use, | 45 |
in the event of a disaster, of electronic communications networks, | |
electronic communications services and associated facilities; | |
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(f) conditions making such provision as OFCOM consider appropriate for | |
securing the protection of public health by the prevention or avoidance | |
of the exposure of individuals to electro-magnetic fields created in | |
connection with the operation of electronic communications networks; | |
(g) conditions requiring compliance with relevant international standards. | 5 |
(2) The power under subsection (1)(a) to set conditions for protecting the interests | |
of the end-users of public electronic communications services includes power | |
to set conditions for that purpose which— | |
(a) relate to the supply, provision or making available of goods, services or | |
facilities in association with the provision of public electronic | 10 |
communications services; and | |
(b) give effect to Community obligations to provide protection for such | |
end-users in relation to the supply, provision or making available of | |
those goods, services or facilities. | |
(3) The power to set general conditions in relation to a description of electronic | 15 |
communications network or electronic communications service does not | |
include power— | |
(a) to set conditions that are made applicable according to the identity of | |
the provider of a network or service; or | |
(b) to set conditions that differ according to the identity of the provider of | 20 |
the networks or services to which they relate. | |
(4) The power to set general conditions falling within subsection (1)(b) does not | |
include power to set conditions containing provision which under— | |
(a) section 69, or | |
(b) any of sections 83 to 88, | 25 |
must be or may be included, in a case in which it appears to OFCOM to be | |
appropriate to do so, in an access-related condition or SMP condition. | |
(5) The conditions falling within subsection (1)(c) include conditions making such | |
provision as OFCOM consider appropriate for the purpose, in accordance with | |
Community obligations, of preventing or restricting electro-magnetic | 30 |
interference— | |
(a) with the provision of an electronic communications network or | |
electronic communications service; or | |
(b) with, or with the receipt of, anything conveyed or provided by means | |
of such a network or service. | 35 |
(6) In this section “electro-magnetic interference” means interference by means of | |
the emission or reflection of electro-magnetic energy in the course of, or in | |
connection with, the provision any electronic communications network or | |
electronic communications service; | |
(7) In this section “disaster” includes any major incident having a significant effect | 40 |
on the general public; and for this purpose a major incident includes any | |
incident of contamination involving radioactive substances or other toxic | |
materials. | |
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