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Communications Bill


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

    62

 

provider, or his customers, of an electronic communications network or

electronic communications service provided by another.

     (3)    In this section “number” has the same meaning as in section 53.

General conditions: must-carry obligations

 61    Must-carry obligations

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     (1)    General conditions may include conditions making any provision that

OFCOM consider appropriate for securing that particular services are

broadcast or otherwise transmitted by means of the electronic communications

networks described in the conditions.

     (2)    A general condition containing provision authorised by this section is not

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(subject to subsection (4)) to require a service to be broadcast or otherwise

transmitted by means of an electronic communications network unless—

           (a)           the service is included in the list of must-carry services; and

           (b)           the effect of the requirement is confined to networks by means of which

public electronic communications services are provided that are used

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by a significant number of end-users as their principal means of

receiving television programmes.

     (3)    That list is as follows—

           (a)           any service of television programmes provided by the BBC so far as it

is provided in digital form and is a service in relation to which OFCOM

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have functions;

           (b)           the Channel 3 services so far as provided in digital form;

           (c)           Channel 4 so far as provided in digital form;

           (d)           Channel 5 so far as provided in digital form;

           (e)           S4C Digital;

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           (f)           the digital public teletext service.

     (4)           General conditions making provision authorised by this section in relation to a

listed service must, to such extent as OFCOM consider appropriate (and

subject to subsection (5))—

           (a)           apply the requirement to broadcast or otherwise transmit that service

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to every service which is an ancillary service by reference to the listed

service; and

           (b)           provide for the listed service to be treated for the purposes of the

conditions as constituting such other services comprised in or provided

with that service as may be determined by OFCOM.

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     (5)    General conditions making provision authorised by this section must also

comply with all such restrictions (if any) as may be imposed by order made by

the Secretary of State as to the maximum and minimum amounts, or

proportions, of available capacity that are to be required by such conditions to

be used in the case of a network for the broadcasting or other transmission of

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particular services, or descriptions of service.

     (6)    In making an order under subsection (5) the Secretary of State must have

regard to—

           (a)           the objective of securing that services included in the list of must-carry

services, and the other services to which conditions set in accordance

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with this section are likely to be applied by virtue of subsection (4), are

 

 

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

    63

 

available for reception by as many members of the public in the United

Kingdom as practicable; and

           (b)           the need to secure that the amount of capacity available in the case of

every network for making other services available is reasonable and,

accordingly, that the burden of complying with conditions set in

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accordance with this section is proportionate to the public benefit to be

secured by that objective.

     (7)    It shall be the duty of the Secretary of State from time to time to review—

           (a)           the list of must-carry services; and

           (b)           any requirements for the time being in force under this section with

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respect to the terms on which services must be broadcast or otherwise

transmitted.

     (8)    Where the Secretary of State carries out such a review, he must consult the

following about the matters under review—

           (a)           OFCOM; and

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           (b)           such persons who, in his opinion, are likely to be affected by a

modification of the list of must-carry services, or who represent any of

those persons, as he thinks fit.

     (9)    If, on such a review, he considers it appropriate to do so, the Secretary of State

may by order modify the list of must-carry services.

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     (10)   In determining whether it is appropriate for the purposes of subsection (9) to

add a service to the list of must-carry services or to remove it, the Secretary of

State must have regard, in particular, to—

           (a)           the public benefit to be secured by the addition of the service to the list,

or by its retention in the list;

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           (b)           the extent to which the service (if it were not included in the list) would

nevertheless be made available to an acceptable technical standard by

means of the networks to which conditions set in accordance with this

section apply;

           (c)           the capacity left available, after the requirements of those conditions

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have been complied with, for the broadcasting or other transmission of

material by means of each of those networks; and

           (d)           the need to secure that the burden of complying with conditions so set

is proportionate to the objective of securing that the services in the list

of must-carry services, and the other services to which conditions set in

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accordance with this section are likely to applied by virtue of

subsection (4), are available for reception by as many members of the

public in the United Kingdom as practicable.

     (11)   The Secretary of State may also, if (whether on such a review or in any other

circumstances) he considers it appropriate to do so, by order make provision

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imposing requirements as to what, as between—

           (a)           the person providing a must-carry service, and

           (b)           the person providing a network by means of which it is to be provided,

            are to be the terms on which the service is to be broadcast or otherwise

transmitted, in pursuance of general conditions set in accordance with this

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section, by means of that network.

     (12)   An order under subsection (11) may provide for the terms to be determined by

OFCOM in accordance with the provisions of the order.

 

 

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

    64

 

     (13)   Before making an order under subsection (5), and before making an order

under subsection (11) in a case in which there has been no review under

subsection (7), the Secretary of State must consult—

           (a)           OFCOM, and

           (b)           such persons who, in his opinion, are likely to be affected by the order,

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or who represent any of those persons, as he thinks fit.

     (14)   Section 355 applies for construing this section as it applies for the purposes of

Part 3.

Universal service conditions

 62    Obligations to be secured by universal service conditions

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     (1)    The Secretary of State must by order (“the universal service order”) set out the

extent to which the things falling within subsection (2) must, for the purpose

of securing compliance with Community obligations for the time being in

force, be provided, made available or supplied throughout the United

Kingdom.

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     (2)    Those things are—

           (a)           electronic communications networks and electronic communications

services;

           (b)           facilities capable of being made available as part of or in connection

with an electronic communications service;

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           (c)                         particular methods of billing for electronic communications services or

of accepting payment for them;

           (d)           directories capable of being used in connection with the use of an

electronic communications network or electronic communications

service; and

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           (e)           directory enquiry facilities capable of being used for purposes

connected with the use of such a network or service.

     (3)    The universal service order may contain guidance about matters relating to the

pricing of things that the order says must be provided, made available or

supplied.

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     (4)    Before making or varying the universal service order, the Secretary of State

must consult OFCOM and such other persons as he considers appropriate.

 63    Designation of universal service providers

     (1)    OFCOM may by regulations make provision for the designation of the persons

to whom universal service conditions are to be applicable.

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     (2)    Subject to subsection (3), those regulations are not to authorise the designation

of a person other than a communications provider.

     (3)    The regulations may provide for a person other than a communications

provider to be designated for the purposes only of conditions relating to—

           (a)           the supply of directories capable of being used in connection with the

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use of an electronic communications network or electronic

communications service; and

           (b)           the making available of directory enquiry facilities capable of being

used for purposes connected with the use of such a network or service.

 

 

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

    65

 

     (4)    OFCOM may from time to time—

           (a)           review the designations for the time being in force in accordance with

regulations under this section; and

           (b)           on such a review, consider what (if any) universal service conditions

should continue to apply to each of the designated persons.

5

     (5)    The procedure to be followed in the case of every such review must be the

procedure provided for in regulations made by OFCOM.

     (6)    Regulations made by OFCOM under this section must provide for a person’s

designation as a person to whom universal service conditions are to be

applicable to cease to have effect where, in any such case as may be described

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in the regulations, the universal service conditions applied to him are all

revoked.

     (7)    Regulations made by OFCOM under this section providing a procedure for the

designation of persons, or for the conduct of a review under subsection (4),

must not provide for any procedure other than one appearing to OFCOM—

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           (a)           to be efficient, objective and transparent; and

           (b)           not to involve, or to tend to give rise to, any undue discrimination

against any person or description of persons.

     (8)    Where—

           (a)           OFCOM designate a person in accordance with regulations under this

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section, or

           (b)           a designation of a person in accordance with any such regulations

ceases to have effect,

            they must give a notification of that designation, or of that fact, to the European

Commission.

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     (9)    A notification under this section must identify the person who has been

designated, or the person whose designation has ceased to have effect.

     (10)   Section 396 applies to the power of OFCOM to make regulations under this

section.

 64    Subject-matter of universal service conditions

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     (1)    OFCOM may set any such universal service conditions as they consider

appropriate for securing compliance with the obligations set out in the

universal service order.

     (2)    Universal service conditions applied to a person must include a condition

requiring him to publish information about his performance in complying with

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the universal service conditions that apply to him.

     (3)    A condition set in accordance with subsection (2) must contain provision

which—

           (a)           requires information published in accordance with it to be updated

from time to time and published again;

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           (b)           requires information so published to satisfy the requirements that

OFCOM consider appropriate for securing that it is adequate; and

           (c)           requires information so published to be framed by reference to the

quality of service parameters, definitions and measurement methods

for the time being set out in Annex III to the Universal Service Directive.

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

    66

 

     (4)    A condition set in accordance with that subsection may impose requirements

as to—

           (a)           the times at which information published in accordance with it is to be

published; and

           (b)           the manner in which that information is to be published.

5

     (5)    Universal service conditions may impose an obligation on a person to whom

they apply to do one or both of the following, if required to do so by OFCOM—

           (a)           to make facilities available for enabling information published in

pursuance of a condition applied to that person under subsection (2) to

be independently audited;

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           (b)           to meet the costs of any independent auditing of that information that

is required by OFCOM.

     (6)    The reference in subsection (5) to the independent auditing of information is a

reference to its being audited by a qualified auditor—

           (a)           for accuracy; and

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           (b)           for its usefulness in the making of comparisons with information

published by other designated universal service providers.

     (7)    Universal service conditions may impose performance targets on designated

universal service providers with respect to any of the matters in relation to

which obligations may be imposed by such conditions.

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     (8)    In setting a universal service condition, OFCOM must have regard to any

guidance about matters relating to pricing that is contained in the universal

service order.

     (9)    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

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auditor.

 65    Tariffs etc. for universal services

     (1)    It shall be the duty of OFCOM—

           (a)           to keep under review universal service tariffs; and

           (b)           to monitor changes to those tariffs.

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     (2)    Universal service conditions may require one or more of the following—

           (a)           the use of a common tariff, or of common tariffs, in relation to anything

mentioned in section 62(2);

           (b)           the use, in such cases as may be specified or described in the conditions,

of such special tariffs in relation to anything so mentioned as may be so

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specified or described;

           (c)           the fixing of tariffs used in accordance with the conditions by the use of

such methods, and by reference to such methods of computing costs, as

may be so specified or described.

     (3)    Universal service conditions must secure that customers of a designated

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universal service provider are not required to subsidise other services by

means of—

           (a)           the universal service tariffs of that provider; or

           (b)           other terms and conditions on which anything is provided, made

available or supplied to them in accordance with a universal service

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condition.

 

 

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

    67

 

     (4)    For the purposes of subsection (3) customers of a designated universal service

provider subsidise other services to the extent that payments made by those

customers are used—

           (a)           to meet the cost of the provision, availability or supply (whether to

those customers or to other persons) of anything that is not required to

5

be provided, made available or supplied in pursuance of a universal

service condition applying to that provider; or

           (b)           otherwise to pay for the provision, availability or supply of any thing

that is not so required.

     (5)    It shall be the duty of OFCOM, in setting a universal service condition about

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universal service tariffs, to have regard to anything ascertained by them in the

performance of their duty under subsection (1).

     (6)    References in this section to a universal service tariff are references to any of

the tariffs used by designated universal service providers in relation to the

things for the time being required by the universal service order.

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     (7)    In this section “tariff” includes a pricing structure.

 66    Directories and directory enquiry facilities

     (1)    This section applies where universal service conditions require a designated

universal service provider—

           (a)           to supply a directory capable of being used in connection with the use

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of an electronic communications network or electronic

communications service; or

           (b)           to make available directory enquiry facilities capable of being used for

purposes connected with use of such a network or service.

     (2)    The universal service conditions applied to the provider must include the

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conditions that OFCOM consider appropriate for securing that the provider

does not unduly discriminate against a source of relevant information—

           (a)           in the compiling of the directory or the answering of directory

enquiries; or

           (b)           in the treatment in the directory, or for the purposes of the facilities, of

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any relevant information from that source.

     (3)    In this section—

           (a)           references to relevant information are references to information

provided for inclusion in the directory or for use in the answering of

directory enquiries; and

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           (b)           references to a source of relevant information are references to a

communications provider or designated universal service provider

who provides relevant information.

 67    Review of compliance costs

     (1)    OFCOM may from time to time review the extent (if any) of the financial

40

burden for a particular designated universal service provider of complying in

relation to any matter with any one or more of the universal service conditions

applied to him.

     (2)    Where—

 

 

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,

5

            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—

10

           (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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