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73 Modification and revocation of conditions imposed under s. 72 | |
(1) This section applies in the case of conditions falling within section 72(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 | 5 |
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; | 10 |
(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 | 15 |
included in the list of must-carry services in section 61; | |
(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 | 20 |
access systems and other associated facilities. | |
(4) In this section “conditional access system” has the same meaning as in section | |
72. | |
Privileged supplier conditions | |
74 Imposition of privileged supplier conditions | 25 |
(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— | 30 |
(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 42 as a | |
privileged supplier condition is any provision that OFCOM consider | 35 |
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 | 40 |
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; | |
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(d) securing, by means other than the keeping of separate accounts, the | |
structural separation of the different parts of his undertaking. | |
(4) OFCOM is 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 |
(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 | 10 |
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 | 15 |
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 | 20 |
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— | 25 |
(a) an electronic communications network; or | |
(b) 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 | 30 |
Treaty establishing the European Community. | |
SMP conditions: procedure | |
75 Circumstances required for the setting of SMP conditions | |
(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 | 35 |
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 | 40 |
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 | |
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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 | 5 |
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. | |
76 Market power determinations | |
(1) Before making a market power determination, OFCOM must— | 10 |
(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. | 15 |
(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 | 20 |
(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 | 25 |
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 | 30 |
(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; | 35 |
(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 45(1) with | |
respect to the setting or modification of an SMP condition and either— | 40 |
(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. | 45 |
(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 | |
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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 | 5 |
commencement of this section and to a Community instrument made after the | |
commencement of this section. | |
77 Proposals for identifying markets and for market power determinations | |
(1) Before OFCOM— | |
(a) identify a market for the purposes of making a market power | 10 |
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; | 15 |
(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 45(2) with | |
respect to the setting or modification of an SMP condition and either— | 20 |
(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. | 25 |
(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; | 30 |
(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. | 35 |
(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 | 40 |
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 | 45 |
this paragraph by the Secretary of State. | |
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(7) The power of OFCOM to give effect to such a proposal is subject to sections 79 | |
and 80. | |
78 Delivery of copies of notifications under ss. 76 and 77 | |
(1) OFCOM must send a copy of every notification published under section 76(4) | |
or 77 to the Secretary of State. | 5 |
(2) OFCOM must send to the European Commission a copy of every notification | |
published under section 76(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 77 | |
which— | 10 |
(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. | 15 |
(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, | 20 |
a copy of a notification published under section 77 which relates to a proposal | |
to identify a services market or to make a market power determination in | |
relation to such a market. | |
79 European Commission’s powers in respect of proposals | |
(1) This section applies, in the case of a notification under section 77 with respect | 25 |
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 | 30 |
(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 | 35 |
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 | 40 |
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. | |
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(4) In this section “the representations period”, in relation to a notification under | |
section 77, means the period specified in that notification for the making of | |
representations about the proposals contained in it. | |
80 Special rules for transnational markets | |
(1) This section applies where a services market is for the time being identified by | 5 |
a decision of the European Commission under Article 15(4) of the Framework | |
Directive as a transnational market. | |
(2) Where the market area includes the whole or a part of the United Kingdom, | |
OFCOM must enter into and maintain arrangements with the other relevant | |
regulatory authorities about— | 10 |
(a) the extent to which the agreement of all the relevant regulatory | |
authorities is required for the doing of any of the things mentioned in | |
subsection (3); and | |
(b) the procedures to be followed for securing that agreement where it is | |
required. | 15 |
(3) Those things are— | |
(a) the identification of the whole or a part of the market as a market in | |
relation to which it is appropriate to determine whether a person has | |
significant market power; | |
(b) the making of such a determination in relation to the whole or a part of | 20 |
the market; | |
(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 | 25 |
accordance with arrangements maintained under that subsection. | |
(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 | 30 |
on behalf of some or all of the relevant regulatory authorities. | |
(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 | 35 |
“relevant regulatory authorities”, in relation to such a market, means the | |
regulatory authorities for each member State the whole or a part of | |
which is comprised in the market area. | |
81 Review of services market identifications and determinations | |
(1) This section applies where OFCOM have identified and analysed a services | 40 |
market for the purposes of making a market power determination. | |
(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; | 45 |
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(b) deciding whether to make proposals for the modification of SMP | |
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 | 5 |
the European Commission that affect the matters that were taken into account, | |
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 | 10 |
person with significant market power in that market, they must revoke every | |
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 | 15 |
to consider for the purpose of carrying out an earlier analysis. | |
(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 | 20 |
(b) those markets shall be the identified markets for the purposes of the | |
further analysis. | |
(7) Sections 76 to 80 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 | 25 |
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. | |
82 Review of apparatus market identifications and determinations | 30 |
(1) This section applies where OFCOM have identified and analysed an apparatus | |
market for the purposes of making a market power determination. | |
(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 | 35 |
analysis; | |
(b) deciding whether to make proposals for the modification of SMP | |
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 | 40 |
person with significant market power in that market, they shall revoke every | |
SMP apparatus condition applied to that person by reference to the market | |
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 | 45 |
to consider for the purpose of carrying out any earlier analysis. | |
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