71 Permitted subject-matter of access-related conditions
(1) The only conditions that may be set under section 43 as access-related
conditions are those authorised by this section.
(2) Access-related conditions may include conditions relating to the provision of
such network access and service interoperability as appears to OFCOM
appropriate for the purpose of securing—
(a) efficiency on the part of communications providers and persons
making associated facilities available;
(b) sustainable competition between them; and
(c) the greatest possible benefit for the end-users of public electronic
(3) Access-related conditions may include conditions appearing to OFCOM to be
appropriate for securing that persons to whom the electronic communications
code applies participate, in cases where there are no viable alternative
arrangements that may be made, in arrangements for—
(a) sharing the use of electronic communications apparatus; and
(b) apportioning and making contributions towards costs incurred in
relation to shared electronic communications apparatus.
(4) Access-related conditions may include one which—
(a) is of a technical or operational nature;
(b) appears to OFCOM to be appropriate for securing the proper operation
of an electronic communications network in compliance with any SMP
services condition falling within section 85(3); and
(c) is applied to—
(i) a person who is required by such an SMP services condition to
confer any entitlements to network access; or
(ii) a person on whom such an entitlement is or may be conferred
in pursuance of a requirement imposed by such an SMP
(5) Access-related conditions may include conditions containing any provision
required by section 73(2).
72 Specific types of access-related conditions
(1) The conditions that may be set by virtue of section 71(2) include conditions
which, for the purpose of securing end-to-end connectivity for the end-users of
public electronic communications services provided by means of a series of
electronic communications networks—
(a) impose obligations on a person controlling network access to any of
those networks; and
(b) require the interconnection of the networks.
(2) The conditions that may be set by virtue of section 71(2) also include such
conditions imposing obligations on a person providing facilities for the use of
application programme interfaces or electronic programme guides as OFCOM
consider to be necessary for securing—
(a) that persons are able to have access to such programme services
provided in digital form as OFCOM may determine; and
(b) that the facility for using those interfaces or guides is provided on terms
(i) are fair and reasonable; and
(ii) do not involve, or tend to give rise to, any undue discrimination
against any person or description of persons.
(3) In this section—
“application programme interface” means a facility for allowing software
to make use, in connection with any of the matters mentioned in
subsection (4), of facilities contained in other software;
“electronic programme guide” means a facility by means of which a
person has access to any service which consists of—
(a) the listing or promotion, or both the listing and the promotion,
of some or all of the programmes included in any one or more
programme services; and
(b) a facility for obtaining access, in whole or in part, to the
programme service or services listed or promoted in the guide;
“end-to-end connectivity” means the facility—
(a) for different end-users of the same public electronic
communications service to be able to communicate with each
(b) for the end-users of different such services to be able, each using
the service of which he is the end-user, to communicate with
(4) The matters mentioned in subsection (3), in the definition of “application
programme interface”, are—
(a) allowing a person to have access to programme services;
(b) allowing a person, other than a communications provider or a person
who makes associated facilities available, to make use of an electronic
communications network by means of which a programme service is
broadcast or otherwise transmitted;
(c) allowing a person to become the end-user of a description of public
electronic communications service.
(5) This section is not to be construed as restricting the provision that may be made
under section 71(2).
73 Conditional access systems and access to digital services
(1) It shall be the duty of OFCOM, when setting a condition falling within section
71(4), to ensure that it contains all such provision as they consider appropriate
for the purpose of taking account of the relevant international standards.
(2) It shall be the duty of OFCOM to ensure—
(a) that access-related conditions are applied to every person who
provides a conditional access system in relation to a protected
programme service; and
(b) that those conditions make all such provision as required by the
provision contained from time to time in Part I of Annex I to the Access
Directive (conditions relating to access to digital programme services).
(3) In this section—
“conditional access system” means any system, facility, arrangements or
technical measure under or by means of which access to programme
(a) a subscription to the service or to a service that includes that
(b) an authorisation to view it, or to listen to it, on a particular
“protected programme service” means a programme service the
programmes included in which cannot be viewed or listened to in an
intelligible form except by the use of a conditional access system.
74 Modification and revocation of conditions imposed under s. 73
(1) This section applies in the case of conditions falling within section 73(2) which
have been set by OFCOM in relation to a particular person (“the system
(2) OFCOM must not give effect to a proposal to modify or revoke any of the
(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
(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
included in the list of must-carry services in section 62;
(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
access systems and other associated facilities.
(4) In this section “conditional access system” has the same meaning as in section
Privileged supplier conditions
75 Imposition of privileged supplier conditions
(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—
(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 43 as a
privileged supplier condition is any provision that OFCOM consider
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
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
(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) 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
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
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
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
(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
Treaty establishing the European Community.