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Session 2002 - 03
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Communications Bill


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

    72

 

Access-related conditions

 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

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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;

           (b)           sustainable competition between them; and

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           (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

code applies participate, in cases where there are no viable alternative

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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—

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           (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—

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                  (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

services condition.

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     (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

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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.

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     (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—

 

 

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

    73

 

           (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;

                    “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

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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

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communications service to be able to communicate with each

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.

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     (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

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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

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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.

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     (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

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provision contained from time to time in Part I of Annex I to the Access

Directive (conditions relating to access to digital programme services).

 

 

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

    74

 

     (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—

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

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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

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

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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

provider”).

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     (2)    OFCOM must not give effect to a proposal to modify or revoke any of the

conditions unless—

           (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

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imposed;

           (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—

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           (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

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           (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

73.

Privileged supplier conditions

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 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.

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     (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.

 

 

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

    75

 

     (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

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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

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published;

           (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

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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

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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—

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           (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

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(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

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of—

                  (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;

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                    “special or exclusive rights” has the same meaning as in Article 86 of the

Treaty establishing the European Community.

 

 

 
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