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
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,
the burden of complying in relation to any matter with universal
(d) a determination of the extent (if any) to which that is or would be
(5) The assessment, collection and distribution of contributions under subsection
(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
(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
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
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
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
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
to which it applies—
(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
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
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
(5) Every report under this section—
(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
(6) OFCOM is not required under this section—
(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—
(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
(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.
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
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 84(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 72(2).
71 Specific types of access-related conditions
(1) The conditions that may be set by virtue of section 70(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 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—
(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 70(2).
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—
(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.