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Communications Bill


Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    68

 

           (a)           regulations under section 63 require the financial burden of so

complying to be taken into account in determining whom to designate,

and

           (b)           the regulations provide for a particular method of calculating that

burden to be used for the purposes of that determination,

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            that must be the method of calculation applied on a review under this section.

     (3)    Where subsection (2) does not apply, the financial burden of so complying is to

be taken to be the amount calculated by OFCOM to be the net cost of

compliance after allowing for market benefits accruing to the designated

universal service provider from—

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           (a)           his designation; and

           (b)           the application to him of universal service conditions.

     (4)    After carrying out a review under this section OFCOM must either—

           (a)           cause the calculations made by them on the review to be audited by a

person who appears to them to be independent of designated universal

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service providers; or

           (b)           themselves carry out an audit of those calculations.

     (5)    OFCOM must ensure, in the case of every audit carried out under subsection

(4), that a report on the audit—

           (a)           is prepared; and

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           (b)           if not prepared by OFCOM, is provided to them.

     (6)    It shall be the duty of OFCOM, in the case of every review under this section,

to publish—

           (a)           their conclusions on the review; and

           (b)           a summary of the report of the audit which was carried out as respects

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the calculations made for the purposes of that review.

     (7)    The publication of anything under subsection (6) must be a publication in such

manner as OFCOM consider appropriate for bringing it to the attention of the

persons who, in their opinion, are likely to be affected by it.

 68    Sharing of burden of universal service obligations

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     (1)    This section applies where OFCOM—

           (a)           have concluded, on a review under section 67, that complying in

relation to any matter with universal service conditions imposes a

financial burden on a particular designated universal service provider;

and

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           (b)           have published that conclusion in accordance with that section.

     (2)    OFCOM must determine, in the case of the designated universal service

provider, whether they consider it would be unfair for that provider to bear, or

to continue to bear, the whole or any part of so much of the burden.

     (3)    If—

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           (a)           OFCOM determine that it would be unfair for the designated universal

service provider to bear, or to continue to bear, the whole or a part of

the burden, and

           (b)           an application for a determination under this subsection is made to

OFCOM by that provider,

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Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    69

 

            OFCOM may determine that contributions are to be made by communications

providers to whom general conditions are applicable for meeting that burden.

     (4)    The making of any of the following must be in accordance with regulations

made by OFCOM—

           (a)           a determination by OFCOM of the extent of the financial burden that

5

exists for the designated universal service provider of complying in

relation to any matter with universal service conditions;

           (b)           an application for the purposes of subsection (3)(b);

           (c)           a determination by OFCOM of whether it is or would be unfair for the

designated universal service provider to bear, or to continue to bear,

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the burden of complying in relation to any matter with universal

service conditions;

           (d)           a determination of the extent (if any) to which that is or would be

unfair.

     (5)    The assessment, collection and distribution of contributions under subsection

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(3) is not to be carried out except in accordance with a mechanism provided for

in a scheme contained in regulations made by OFCOM.

     (6)    It shall be the duty of OFCOM to exercise their power to make regulations

under this section in the manner which they consider will secure that the

assessment, collection and distribution of contributions under subsection (3) is

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carried out—

           (a)           in an objective and transparent manner;

           (b)           in a manner that does not involve, or tend to give rise to, any undue

discrimination against particular communications providers or

particular designated universal service providers, or against a

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particular description of them; and

           (c)           in a manner that avoids, or (if that is impracticable) at least minimises,

any distortion of competition or of customer demand.

     (7)    Regulations made by OFCOM under this section may provide for a scheme

containing the provision mentioned in subsection (5), and for any fund set up

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for the purposes of such a scheme, to be administered either—

           (a)           by OFCOM; or

           (b)           by such other person as may be specified in the regulations.

     (8)    A person other than OFCOM is not to be specified in regulations under this

section as the administrator of such a scheme or fund unless he is a person who

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OFCOM are satisfied is independent of both—

           (a)           the persons who are designated universal service providers; and

           (b)           communications providers to whom general conditions are applicable.

     (9)    Section 396 applies to the powers of OFCOM to make regulations under this

section.

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 69    Report on sharing mechanism

     (1)    This section applies where regulations under section 68 provide for a scheme

for the assessment, collection and distribution of contributions under

subsection (3) of that section.

     (2)    OFCOM must prepare and publish a report setting out, in relation to the period

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to which it applies—

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    70

 

           (a)           every determination by OFCOM that has had effect in relation to a time

in that period as a determination of the costs of providing anything

contained in the universal service order;

           (b)           the market benefits for each designated universal service provider that

have accrued to him during that period from his designation and from

5

the application to him of universal service conditions; and

           (c)           the contribution made under section 68(3) by every person who has

made a contribution during that period.

     (3)    The first report under this section must be prepared in relation to the period of

twelve months beginning with the coming into force of the first regulations to

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be made under section 68.

     (4)    Every subsequent report must be prepared in relation to the period of twelve

months beginning with the end of the period to which the previous report

applied.

     (5)    Every report under this section—

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           (a)           must be prepared as soon as practicable after the end of the period to

which it is to apply; and

           (b)           must be published as soon as practicable after its preparation is

complete.

     (6)    OFCOM is not required under this section—

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           (a)           to publish any matter that is confidential in accordance with subsection

(7) or (8); or

           (b)           to publish anything that it would not be reasonably practicable to

publish without disclosing such a matter.

     (7)    A matter is confidential under this subsection if—

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           (a)           it relates specifically to the affairs of a particular body; and

           (b)           publication of that matter would or might, in OFCOM’s opinion,

seriously and prejudicially affect the interests of that body.

     (8)    A matter is confidential under this subsection if—

           (a)           it relates to the private affairs of an individual; and

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           (b)           publication of that matter would or might, in OFCOM’s opinion,

seriously and prejudicially affect the interests of that individual.

     (9)    The publication of a report under this section must be a publication in such

manner as OFCOM consider appropriate for bringing it to the attention of the

persons who, in their opinion, are affected by the matters to which it relates.

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Access-related conditions

 70    Permitted subject-matter of access-related conditions

     (1)    The only conditions that may be set under section 42 as access-related

conditions are those authorised by this section.

     (2)    Access-related conditions may include conditions relating to the provision of

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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;

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    71

 

           (b)           sustainable competition between them; and

           (c)           the greatest possible benefit for the end-users of public electronic

communications services.

     (3)    Access-related conditions may include conditions appearing to OFCOM to be

appropriate for securing that persons to whom the electronic communications

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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.

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     (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 84(3); and

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           (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

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services condition.

     (5)    Access-related conditions may include conditions containing any provision

required by section 72(2).

 71    Specific types of access-related conditions

     (1)    The conditions that may be set by virtue of section 70(2) include conditions

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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

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           (b)           require the interconnection of the networks.

     (2)    The conditions that may be set by virtue of section 70(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—

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           (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

which—

                  (i)                 are fair and reasonable; and

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                  (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

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subsection (4), of facilities contained in other software;

 

 

Communications Bill
Part 2 — Networks, services and the radio spectrum
Chapter 1 — Electronic communications networks and services

    72

 

                    “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

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                  (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

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other; and

                  (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

each other.

     (4)    The matters mentioned in subsection (3), in the definition of “application

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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

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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 70(2).

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 72    Conditional access systems and access to digital services

     (1)    It shall be the duty of OFCOM, when setting a condition falling within section

70(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—

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           (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 of the Access

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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

services requires—

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                  (a)                 a subscription to the service or to a service that includes that

service; or

                  (b)                 an authorisation to view it, or to listen to it, on a particular

occasion;

                    “protected programme service” means a programme service the

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programmes included in which cannot be viewed or listened to in an

intelligible form except by the use of a conditional access system.

 

 

 
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