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Communications Bill


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

    43

 

           (d)           every notification treated as given to them under that section by a

transitional provision made under subsection (12) of that section.

     (3)    Information recorded in the register must be so recorded in such manner as

OFCOM consider appropriate.

     (4)    It shall be the duty of OFCOM to publish a notification setting out—

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           (a)           the times at which the register is for the time being available for public

inspection; and

           (b)           the fees that must be paid for, or in connection with, an inspection of

the register.

     (5)    The publication of a notification under subsection (4) must be in such manner

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

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

     (6)    OFCOM must make the register available for public inspection—

           (a)           during such hours, and

           (b)           on payment of such fees,

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            as are set out in the notification for the time being in force under subsection (4).

Conditions of entitlement to provide network or service etc.

 43    Power of OFCOM to set conditions

     (1)    OFCOM shall have the power to set conditions under this section binding the

persons to whom they are applied in accordance with section 44.

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     (2)    A condition set by OFCOM under this section must be either—

           (a)           a general condition; or

           (b)           a condition of one of the following descriptions—

                  (i)                 a universal service condition;

                  (ii)                an access-related condition;

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                  (iii)               a privileged supplier condition;

                  (iv)                a significant market power condition (an “SMP condition”).

     (3)    A general condition is a condition which contains only provisions authorised

or required by one or more of sections 49, 50, 55, 56 or 62.

     (4)    A universal service condition is a condition which contains only provisions

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authorised or required by section 65.

     (5)    An access-related condition is a condition which contains only provisions

authorised by section 71.

     (6)    A privileged supplier condition is a condition which contains only the

provision required by section 75.

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     (7)    An SMP condition is either—

           (a)           an SMP services condition; or

           (b)           an SMP apparatus condition.

     (8)    An SMP services condition is a condition which contains only provisions

which—

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           (a)           are authorised or required by one or more of sections 85 to 90; or

 

 

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

    44

 

           (b)           in the case of a condition applying to a person falling within section

44(8)(b), correspond to provision authorised or required by one or more

of sections 85 to 87.

     (9)    An SMP apparatus condition is a condition containing only provisions

authorised by section 91.

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     (10)   OFCOM’s power to set a condition under this section making provision

authorised or required by this Chapter includes each of the following—

           (a)           power to impose a requirement on the person or persons to whom the

condition is applied to comply with such directions with respect to the

matters to which the condition relates as may be given from time to

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time by OFCOM or by another person specified in the condition;

           (b)           power to impose an obligation with respect to those matters that is

framed by reference to, or is conditional upon, the giving of a consent

or of an approval, or on the making of a recommendation, by OFCOM

or by another person so specified;

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           (c)           power, for the purposes of provision made by virtue of either of the

preceding paragraphs, to confer a discretion exercisable from time to

time by OFCOM or by another person specified in the condition or

determined in accordance with provision contained in it;

           (d)           power (subject to section 49(3)) to set different conditions for different

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cases (including different conditions in relation to different parts of the

United Kingdom); and

           (e)           power to revoke or modify the conditions for the time being in force.

     (11)   The directions that may be authorised by virtue of subsection (10) do not

include directions withdrawing, suspending or restricting a person’s

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entitlement—

           (a)           to provide, in whole or in part, any electronic communications network

or electronic communications service; or

           (b)           to make available, in whole or in part, any associated facilities.

 44    Persons to whom conditions may apply

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     (1)    A condition set under section 43 is not to be applied to a person except in

accordance with the following provisions of this section.

     (2)    A general condition may be applied generally—

           (a)           to every person providing an electronic communications network or

electronic communications service; or

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           (b)           to every person providing such a network or service of a particular

description specified in the condition.

     (3)    A universal service condition, access-related condition, privileged supplier

condition or SMP condition may be applied to a particular person specified in

the condition.

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     (4)    A privileged supplier condition may also be applied generally—

           (a)           to every person to whom such a condition is required to apply under

section 75; or

           (b)           to every such person who is of a particular description specified in the

condition.

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     (5)    The particular person to whom a universal service condition is applied—

 

 

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

    45

 

           (a)           except in the case of a condition relating to matters mentioned in

subsection (3) of section 64, must be a communications provider

designated in accordance with regulations under that section; and

           (b)           in that excepted case, must be a communications provider so

designated or a person who is not such a provider but who is so

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designated for the purposes only of conditions relating to those

matters.

     (6)    The particular person to whom an access-related condition is applied—

           (a)           in the case of a condition falling within section 72(1), may be any person

whatever; and

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           (b)           in any other case, must be a person who provides an electronic

communications network or makes associated facilities available.

     (7)    The particular person to whom an SMP services condition is applied must—

           (a)           be a communications provider or a person who makes associated

facilities available; and

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           (b)           fall within subsection (8).

     (8)    A person falls within this subsection if—

           (a)           he is a person whom OFCOM have determined to be a person having

significant market power in a specific market for electronic

communications networks, electronic communications services or

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associated facilities (a “services market”); or

           (b)           it appears to OFCOM that he is a person on whom it is necessary, for

the purpose of securing compliance with an international obligation of

the United Kingdom, to impose a condition containing provision that

corresponds to provision which, in the case of a person falling within

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paragraph (a), must be made (or may be made) under any of sections

85 to 87.

     (9)    The particular person to whom an SMP apparatus condition is applied must

be—

           (a)           a person who supplies electronic communications apparatus; and

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           (b)           a person whom OFCOM have determined to be a person having

significant market power in a specific market for electronic

communications apparatus (an “apparatus market”).

 45    Test for setting or modifying conditions

     (1)    OFCOM must not, in exercise or performance of any power or duty under this

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Chapter—

           (a)           set a condition under section 43, or

           (b)           modify such a condition,

            unless they are satisfied that the condition or (as the case may be) the

modification satisfies the test in subsection (2).

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     (2)    That test is that the condition or modification is—

           (a)           objectively justifiable in relation to the networks, services, facilities,

apparatus or directories to which it relates;

           (b)           not such as to discriminate unduly against particular persons or against

a particular description of persons;

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           (c)           proportionate to what the condition or modification is intended to

achieve; and

 

 

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

    46

 

           (d)           in relation to what it is intended to achieve, transparent.

 46    Procedure for setting, modifying and revoking conditions

     (1)    Subject to the following provisions of this Chapter—

           (a)           the way in which conditions are to be set or modified under section 43

is by the publication of a notification setting out the conditions or

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modifications; and

           (b)           the way in which such a condition is to be revoked is by the publication

of a notification stating that the condition is revoked.

     (2)    Before setting conditions under section 43, or modifying or revoking a

condition so set, OFCOM must publish a notification—

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           (a)           stating that they are proposing to set, modify or revoke the conditions

that are specified in the notification;

           (b)           setting out the effect of those conditions, modifications or revocations;

           (c)           giving their reasons for making the proposal; and

           (d)           specifying the period within which representations may be made to

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OFCOM about their proposal.

     (3)    That period must end no less than one month after the day of the publication

of the notification.

     (4)    In the case of a notification under subsection (2) with respect to an SMP

condition, the applicable requirements of sections 77 to 84 must also be

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complied with.

     (5)    OFCOM may give effect, with or without modifications, to a proposal with

respect to which they have published a notification under subsection (2) only

if—

           (a)           they have considered every representation about the proposal that is

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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

this paragraph by the Secretary of State.

     (6)    The publication of a notification under this section must be in such manner as

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appears to OFCOM to be appropriate for bringing the contents of the

notification—

           (a)           in the case of a notification setting general conditions, to the attention

of such persons as OFCOM consider appropriate; and

           (b)           in any other case, to the attention of the persons who, in OFCOM’s

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opinion, are likely to be affected by the contents of the notification.

     (7)    Nothing in the following provisions of this Chapter imposing a duty on

OFCOM to set or modify a condition shall be taken as dispensing with any of

the requirements of this section.

 47    Directions and approvals for the purposes of a s. 43 condition

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     (1)    This section applies where—

           (a)           a condition set under section 43 has effect by reference to directions,

approvals or consents given by a person (whether OFCOM themselves

or another); and

 

 

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

    47

 

           (b)           that person is proposing to give a direction, approval or consent that

affects the operation of that condition or to modify or withdraw a

direction, approval or consent so as to affect the condition’s operation.

     (2)    A person must not give, modify or withdraw the direction, approval or consent

unless he is satisfied that to do so is—

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           (a)           objectively justifiable in relation to the networks, services, facilities,

apparatus or directories to which it relates;

           (b)           not such as to discriminate unduly against particular persons or against

a particular description of persons;

           (c)           proportionate to what it is intended to achieve; and

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           (d)           in relation to what it is intended to achieve, transparent.

     (3)    In giving, modifying or withdrawing the direction, approval or consent, a

person other than OFCOM shall be under the same duty as OFCOM to act in

accordance with the six Community requirements set out in section 4.

     (4)    Before the direction, approval or consent is given, modified or withdrawn, a

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notification must be published—

           (a)           stating that there is a proposal to give, modify or withdraw it;

           (b)           identifying the person whose proposal it is;

           (c)           setting out the direction, approval or consent to which the proposal

relates;

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           (d)           setting out the effect of the direction, approval or consent or of its

proposed modification or withdrawal;

           (e)           giving reasons for the making of the proposal; and

           (f)           specifying the period within which representations may be made about

the proposal to the person whose proposal it is.

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     (5)    That period must be one ending not less than one month after the day of the

publication of the notification.

     (6)           But, where—

           (a)           the person giving the notification is satisfied that there are exceptional

circumstances justifying the use of a shorter period, and

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           (b)           the notification is not one that is required to be sent to the European

Commission under section 48(4) or (5),

            the period specified as the period for making representations may be whatever

shorter period that person considers reasonable in those circumstances.

     (7)    In a case in which—

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           (a)           a person other than OFCOM is proposing to give, modify or withdraw

a direction, approval or consent, and

           (b)           the condition for the purposes of which the direction, approval or

consent has effect, or will have effect, provides for notifications of

proposals for the purposes of that condition to be given by that person,

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            the obligation of publishing the notification for the purposes of subsection (4)

of that proposal falls on that person.

     (8)    In any other case, the obligation of publishing a notification for the purposes of

subsection (4) falls on OFCOM.

     (9)    The person who is authorised to give the direction, approval or consent may

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give effect, with or without modifications, to a proposal with respect to which

a notification has been given under subsection (4) only if—

 

 

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

    48

 

           (a)           he has considered every representation about the proposal that is made

to him within the period specified in the notification; and

           (b)           he has had regard to every international obligation of the United

Kingdom (if any) which has been notified to OFCOM for the purposes

of this paragraph by the Secretary of State.

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     (10)   The publication of a notification under this section must be in such manner as

appears to the person publishing it to be appropriate for bringing the contents

of the notification to the attention of such persons as he considers appropriate.

 48    Delivery of copies of notifications etc.

     (1)    The relevant person must send to the Secretary of State—

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           (a)           a copy of every notification published under section 46(1) or (2);

           (b)           a copy of every notification published under section 47(4);

           (c)           a copy of every direction, approval or consent given for the purpose of

giving effect to a proposal required to be published under section 47(4);

and

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           (d)           a copy of every instrument modifying or withdrawing a direction,

approval or consent for the purpose of giving effect to such a proposal.

     (2)    The relevant person must send to the European Commission—

           (a)           a copy of every notification published under section 46(1) with respect

to an SMP services condition;

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           (b)           a copy of every direction, approval or consent given for the purposes of

such a condition; and

           (c)           a copy of every instrument modifying or withdrawing such a direction,

approval or consent.

     (3)    OFCOM must send to the European Commission and to the regulatory

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authorities of every other member State a copy of every notification published

by them under section 46(2) with respect to a proposal which—

           (a)           relates to the setting, modification or revocation of an access-related

condition falling within section 71(2) or (4) or of an SMP services

condition; and

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           (b)           is a proposal which, in OFCOM’s opinion, would affect trade between

member States.

     (4)    OFCOM must send to the European Commission and to the regulatory

authorities of every other member State a copy of every notification published

by them under section 47(4) with respect to a proposal which—

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           (a)           relates to the giving of a direction, approval or consent for the purposes

of—

                  (i)                 an access-related condition falling within section 71(2) or (4), or

                  (ii)                an SMP services condition,

                         or to the modification or withdrawal of such a direction, approval or

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consent; and

           (b)           is a proposal which, in OFCOM’s opinion, would affect trade between

member States.

     (5)           Where it is a person other than OFCOM who is the relevant person who is

required to publish a notification under section 47(4) relating to the giving,

45

modification or withdrawal of a direction, approval or consent given for

purposes mentioned in subsection (4)(a) of this section—

 

 

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

    49

 

           (a)           that person must refer to OFCOM the question whether, in their

opinion, the proposal would affect trade between member States;

           (b)           OFCOM must immediately determine that question on that reference;

and

           (c)           the relevant person must send a copy of the notification to the

5

European Commission and to the regulatory authorities of every other

member State if OFCOM determine that the proposal is one which, in

their opinion, would affect trade between member States.

     (6)    The relevant person must, in every other case in which it appears to him

appropriate to do so, send a copy of—

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           (a)           every notification published under section 46(1) or (2) or 47(4),

           (b)           every direction, approval or consent given for the purposes of a

condition set under section 43, and

           (c)           every instrument modifying or withdrawing such a direction, approval

or consent,

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            to the European Commission and to such of the regulatory authorities of the

other member States as the relevant person thinks fit.

     (7)    Subsection (6) does not apply where—

           (a)           the notification or the notified proposal relates to an SMP apparatus

condition, or to a direction, approval or consent for the purposes of

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such a condition;

           (b)           the direction, approval or consent given, modified or withdrawn is for

the purposes of such a condition.

     (8)    In this section “the relevant person”, in relation to a notification, direction,

approval or consent—

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           (a)           except in a case falling within paragraph (b), means the person by

whom it is published or (as the case may be) the person by whom it has

been or is to be given, modified or withdrawn; and

           (b)           in the case of a direction, approval or consent given, modified or

withdrawn by a person other than OFCOM for the purpose of giving

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effect to a proposal published by OFCOM under section 47(4), means

OFCOM.

General conditions: subject-matter

 49    Matters to which general conditions may relate

     (1)    Subject to sections 50 to 62, the only conditions that may be set under section

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43 as general conditions are conditions falling within one or more of the

following paragraphs—

           (a)           conditions making such provision as OFCOM consider appropriate for

protecting the interests of the end-users of public electronic

communications services;

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           (b)           conditions making such provision as OFCOM consider appropriate for

securing service interoperability and for securing, or otherwise relating

to, network access;

           (c)           conditions making such provision as OFCOM consider appropriate for

securing the proper and effective functioning of public electronic

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communications networks;

 

 

 
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