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Communications Bill


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

    76

 

SMP conditions: procedure

 76    Circumstances required for the setting of SMP conditions

     (1)    For the purposes of this Chapter a person shall be taken to have significant

market power in relation to a market if he enjoys a position which amounts to

or is equivalent to dominance of the market.

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     (2)    References in this section to dominance of a market must be construed in

accordance with any applicable provisions of Article 14 of the Framework

Directive.

     (3)    A person is to be taken to enjoy a position of dominance of a market if he is one

of a number of persons who enjoy such a position in combination with each

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other.

     (4)    A person or combination of persons may also be taken to enjoy a position of

dominance of a market by reason wholly or partly of his or their position in a

closely related market if the links between the two markets allow the market

power held in the closely related market to be used in a way that influences the

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other market so as to strengthen the position in the other market of that person

or combination of persons.

     (5)    The matters that must be taken into account in determining whether a

combination of persons enjoys a position of dominance of a services market

include, in particular, the matters set out in Annex II to the Framework

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Directive.

 77    Market power determinations

     (1)    Before making a market power determination, OFCOM must—

           (a)           identify (by reference, in particular, to area and locality) the markets

which in their opinion are the ones which in the circumstances of the

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United Kingdom are the markets in relation to which it is appropriate

to consider whether to make the determination; and

           (b)           carry out an analysis of the identified markets.

     (2)    In identifying or analysing any services market for the purposes of this

Chapter, OFCOM must take due account of all applicable guidelines and

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recommendations which—

           (a)           have been issued or made by the European Commission in pursuance

of the provisions of a Community instrument; and

           (b)           relate to market identification and analysis.

     (3)    In considering whether to make or revise a market power determination in

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relation to a services market, OFCOM must take due account of all applicable

guidelines and recommendations which—

           (a)           have been issued or made by the European Commission in pursuance

of the provisions of a Community instrument; and

           (b)           relate to market analysis or the determination of what constitutes

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significant market power.

     (4)    The way in which—

           (a)           a market is to be identified for the purposes of this section, or

           (b)           a market power determination is to be made,

 

 

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

    77

 

            is by the publication of a notification containing the identification or

determination.

     (5)    Notifications for the purposes of subsection (4)—

           (a)           may be given separately;

           (b)           may be contained in a single notification relating to both the

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identification of a market and the making of a market determination in

relation to that market; or

           (c)           may be contained in a single notification under section 46(1) with

respect to the setting or modification of an SMP condition and either—

                  (i)                 the making of the market power determination by reference to

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which OFCOM set or modify that condition; or

                  (ii)                the making of that market power determination and the

identification of the market in relation to which they make that

determination.

     (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 to the attention of the persons who, in OFCOM’s opinion, are likely

to be affected by the matters notified.

     (7)    References in this section to guidelines and recommendations issued by the

European Commission and to a Community instrument include references,

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respectively, to guidelines and recommendations issued after the

commencement of this section and to a Community instrument made after the

commencement of this section.

 78    Proposals for identifying markets and for market power determinations

     (1)    Before OFCOM—

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           (a)           identify a market for the purposes of making a market power

determination, or

           (b)           make a market power determination,

            they must publish a notification of what they are proposing to do.

     (2)    Notifications for the purposes of subsection (1)—

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           (a)           may be given separately;

           (b)           may be contained in a single notification relating to both the

identification of a market and the making of a market determination in

relation to that market; or

           (c)           may be contained in a single notification under section 46(2) with

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respect to the setting or modification of an SMP condition and either—

                  (i)                 the making of the market power determination by reference to

which OFCOM are proposing to set or modify that condition; or

                  (ii)                the making of that market power determination and the

identification of the market in relation to which they are

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proposing to make that determination.

     (3)    A notification under this section relating to a proposal to identify a market or

to make a market power determination must—

           (a)           state that OFCOM are proposing to identify that market or to make that

market power determination;

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           (b)           set out the effect of the proposal;

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

 

 

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

    78

 

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

OFCOM about their proposal.

     (4)    That period must be a period of not less than one month after the day of the

publication of the notification.

     (5)    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 to the attention of the persons who, in OFCOM’s opinion, are likely

to be affected by the matters notified.

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

respect to which they have given a notification under this section only if—

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

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.

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     (7)    The power of OFCOM to give effect to such a proposal is subject to sections 80

and 81.

 79    Delivery of copies of notifications under ss. 77 and 78

     (1)    OFCOM must send a copy of every notification published under section 77(4)

or 78 to the Secretary of State.

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     (2)    OFCOM must send to the European Commission a copy of every notification

published under section 77(4) with respect to a market power determination in

relation to a services market.

     (3)    OFCOM must send a copy of every notification published under section 78

which—

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           (a)           relates to a proposal to identify a services market or to make a market

power determination in relation to such a market; and

           (b)           in OFCOM’s opinion would affect trade between member States,

            to the European Commission and to the regulatory authorities of every other

member State.

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     (4)    OFCOM must, in every other case in which it appears to them appropriate to

do so, send—

           (a)           to the European Commission, and

           (b)           to such of the regulatory authorities of the other member States as

OFCOM think fit,

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            a copy of a notification published under section 78 which relates to a proposal

to identify a services market or to make a market power determination in

relation to such a market.

 80    European Commission’s powers in respect of proposals

     (1)    This section applies, in the case of a notification under section 78 with respect

40

to a proposal—

           (a)           to identify a particular market; or

           (b)           to make a market power determination.

 

 

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

    79

 

     (2)    If, within the representations period, OFCOM are notified by the European

Commission for the purposes of Article 7(4) of the Framework Directive

(market identifications that do not conform to Commission recommendations

and determinations that affect trade between member States)—

           (a)           that the Commission considers that giving effect to the proposal would

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create a barrier in relation to the single European market, or

           (b)           that the Commission has serious doubts as to whether giving effect to

the proposal would be compatible with the requirements of any

Community obligations,

            OFCOM are not to give effect to the proposal before the end of a further two

10

months beginning with the end of the representations period.

     (3)    Where, before the end of that two month period, the European Commission

makes a decision in accordance with Article 7(4) of the Framework Directive

that the proposal should be withdrawn, OFCOM—

           (a)           must withdraw it; and

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           (b)           shall not be entitled to give effect to it.

     (4)    In this section “the representations period”, in relation to a notification under

section 78, means the period specified in that notification for the making of

representations about the proposals contained in it.

 81    Special rules for transnational markets

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     (1)    This section applies where a services market is for the time being identified by

a decision of the European Commission under Article 15(4) of the Framework

Directive as a transnational market.

     (2)    Where the market area includes the whole or a part of the United Kingdom,

OFCOM must enter into and maintain arrangements with the other relevant

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regulatory authorities about—

           (a)           the extent to which the agreement of all the relevant regulatory

authorities is required for the doing of any of the things mentioned in

subsection (3); and

           (b)           the procedures to be followed for securing that agreement where it is

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required.

     (3)    Those things are—

           (a)           the identification of the whole or a part of the market as a market in

relation to which it is appropriate to determine whether a person has

significant market power;

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           (b)           the making of such a determination in relation to the whole or a part of

the market;

           (c)           the setting of a condition the setting of which requires such a

determination to have been made;

           (d)           the modification or revocation of such a condition.

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     (4)    OFCOM must not do any of the things mentioned in subsection (3) except in

accordance with arrangements maintained under that subsection.

     (5)    Those arrangements may include arrangements requiring OFCOM, when

doing any of those things, to comply with—

           (a)           a decision made, by one or more other regulatory authorities; or

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           (b)           a decision made by a person appointed under the arrangements to act

on behalf of some or all of the relevant regulatory authorities.

 

 

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

    80

 

     (6)    In this section—

                    “market area”, in relation to a services market identified by the European

Commission as a transnational market, means the area identified by

that Commission as the area for which the market operates; and

                    “relevant regulatory authorities”, in relation to such a market, means the

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regulatory authorities for each member State the whole or a part of

which is comprised in the market area.

 82    Review of services market identifications and determinations

     (1)    This section applies where OFCOM have identified and analysed a services

market for the purposes of making a market power determination.

10

     (2)    OFCOM must, at such intervals as they consider appropriate, carry out further

analyses of the identified market for one or both of the following purposes—

           (a)           reviewing market power determinations made on the basis of an earlier

analysis;

           (b)           deciding whether to make proposals for the modification of SMP

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conditions set by reference to a market power determination made on

such a basis.

     (3)    It shall be the duty of OFCOM to carry out such a further analysis of a services

market as soon as reasonably practicable after recommendations are made by

the European Commission that affect the matters that were taken into account,

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or could have been taken into account, in the case of the last analysis by

OFCOM of that market.

     (4)    Where on, or in consequence of, a further analysis under this section, OFCOM

determine that a person to whom any SMP conditions apply is no longer a

person with significant market power in that market, they must revoke every

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SMP services condition applied to that person by reference to the market

power determination made on the basis of the earlier analysis.

     (5)    Before carrying out a further analysis under subsection (2), OFCOM may

review any decision of theirs identifying the markets which it was appropriate

to consider for the purpose of carrying out an earlier analysis.

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     (6)    Where, on such a review, OFCOM conclude that the appropriate markets have

changed—

           (a)           they must identify the markets they now consider to be the appropriate

ones; and

           (b)           those markets shall be the identified markets for the purposes of the

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further analysis.

     (7)    Sections 77 to 81 apply—

           (a)           in relation to the identification of a services market for the purposes of

reviewing a market power determination under this section, as they

apply in relation to the identification of such a market for the purpose

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of making a market determination; and

           (b)           in relation to the review of such a determination, as they apply in

relation to the making of such a determination.

 

 

 
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