Communications Act 2003

• (b) must be published as soon as practicable after its preparation is complete.

• (6) OFCOM are 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.

Access-related conditions

Permitted subject-matter of access-related conditions

73

• (1) The only conditions that may be set under section 45 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...;

• (b) sustainable competition ...; ...

• (bza) the bringing into operation, where OFCOM consider it appropriate, of very high capacity networks;

• (ba) efficient investment and innovation; and

• (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 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.

• (3A) The power to set access-related conditions falling within subsection (3) is to be exercised for the purpose of—

• (a) encouraging efficient investment in infrastructure; and

• (b) promoting innovation.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4A) Access-related conditions may include conditions permitted by section 74A.

• (5) Access-related conditions may include conditions containing any provision required by section 75(2).

Specific types of access-related conditions

74

• (1) The conditions that may be set by virtue of section 73(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.

• (1A) The conditions that may be set by virtue of section 73(2) also include conditions which impose such obligations on a person controlling network access to customers as OFCOM consider necessary for the purpose of securing service interoperability.

• (2) The conditions that may be set by virtue of section 73(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 which—

• (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.

• (2A) The conditions that may be set by virtue of section 73(2) also include conditions imposing on a person who provides an electronic communications network that includes a line or associated facility to which this subsection applies, or who owns such a line or associated facility, obligations for the purposes of giving to other persons such entitlements as OFCOM may from time to time direct as respects the availability and use of the line or associated facility in cases where OFCOM are satisfied that it would be economically inefficient or physically impracticable for those other persons to replicate the line or associated facility.

• (2B) Subsection (2A) applies—

• (a) to a line or associated facility that is—

• (i) in a building, or

• (ii) between the network termination point as determined by OFCOM and the first concentration or distribution point as so determined; and

• (b) in a case where OFCOM consider, having regard where applicable to any analysis of a services market under section 79, that obligations imposed by virtue of paragraph (a) will not in their opinion sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, to a line or associated facility that is outside a building beyond the first concentration or distribution point to a point determined by OFCOM to be the closest point to end-users that is capable of hosting a sufficient number of end-user connections to be commercially viable for those seeking access.

• (2C) OFCOM may not apply a condition authorised by virtue of subsection (2B)(b) to a person providing an electronic communications network if—

• (a) the network concerned is not publicly funded and the person providing the network makes available a viable and similar alternative means of reaching end-users by providing any undertaking with access to a very high capacity network on fair, non-discriminatory and reasonable terms and conditions; or

• (b) the obligations would compromise the economic or financial viability of the bringing of a new network into operation.

• (2D) The conditions authorised by subsection (2A) may include provision—

• (a) for securing fairness and reasonableness in the way in which requests for entitlements are made and responded to;

• (b) for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions;

• (c) requiring the person to whom the condition applies (“the relevant provider”) not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with the entitlements mentioned in subsection (2A);

• (d) requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;

• (e) requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which the relevant provider is willing to enter into a contract giving the entitlements mentioned in subsection (2A);

• (f) requiring the terms and conditions on which the relevant provider is willing to enter into such a contract to include such terms and conditions as may be specified or described in the condition;

• (g) requiring the relevant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which that provider is willing to enter into such a contract;

• (h) imposing rules about the apportionment and recovery of costs.

• (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—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; anda 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—for different end-users of the same public electronic communications service to be able to communicate with each other; andfor 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.

• “line” means any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service.

• (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 73(2).

Conditional access systems and access to digital services

75

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 is required by the provision contained ... in Part I of Annex 2 to the EECC Directive (conditions relating to access to digital programme services) as it had effect immediately before IP completion day.

• (2A) For the purposes of subsection (2)(b), Part 1 of Annex 2 to the EECC Directive is to be read as if—

• (a) the reference to viewers and listeners in the Union were a reference to viewers and listeners in the United Kingdom;

• (b) the reference to member States were a reference to OFCOM;

• (c) the words “in accordance with Article 62” were omitted;

• (d) in point (a), the references to Union competition law were references to any provision relating to competition that is contained in or made under an enactment.

• (2B) OFCOM may also apply access-related conditions to any person who provides a conditional access system in relation to services which are not protected programme services but appear to OFCOM to be complementary to protected programme services; and those conditions may contain any provision of the kind mentioned in subsection (2)(b).

• (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 subscription to the service or to a service that includes that service; oran 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 intelligible form except by the use of a conditional access system.

Modification and revocation of conditions imposed under s. 75

76

• (1) This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).

• (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 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—

• (a) the accessibility to any persons of services that are for the time being included in the list of must-carry services in section 64;

• (b) the prospects for effective competition in the market for programme services provided by being broadcast or otherwise transmitted in digital form; and

• (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 75.

Privileged supplier conditions

Imposition of privileged supplier conditions

77

• (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.

• (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.

• (3) The provision that may be contained in a condition set under section 45 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 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 published;

• (d) securing, by means other than the keeping of separate accounts, the structural separation of the different parts of his undertaking.

• (4) OFCOM are 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 all his communications activities that is less than £45 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 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—

• (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 sterling 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 (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 of—an electronic communications network; oran electronic communications service;

• “qualified auditor” means a person who—is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, andif the appointment to carry out such auditing as is mentioned in subsection (3)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement);

• “special or exclusive rights” has the same meaning as in Article 106 of the Treaty on the Functioning of the European Union .

SMP conditions: procedure

Circumstances required for the setting of SMP conditions

78

• (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.

• (2) References in this section to dominance of a market are to be construed, so far as it is appropriate to do so for the purposes of this Chapter, in the same way as the reference in section 18(1) of the Competition Act 1998 to a dominant position in a market.

• (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 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 other market so as to strengthen the position in the other market of that person or combination of persons.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Market power determinations

79

• (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 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.

• (1A) In identifying or analysing a services market for the purposes of this Chapter, OFCOM must conduct a forward-looking assessment of the market, taking into account expected or foreseeable developments that may affect competition in the market.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2ZA) In identifying or analysing a services market for the purposes of this Chapter, OFCOM may have regard to EECC materials relating to market identification and analysis.

• (2A) In determining whether to identify a market for the purpose of considering whether to make a market power determination, OFCOM must consider whether the criteria in subsection (2B) are met; and OFCOM may not identify that market for that purpose unless they consider that the criteria are met.

• (2B) Those criteria are—

• (a) that high and non-transitory structural, legal or regulatory barriers to entry are present;

• (b) that there is a market structure which, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry, does not tend towards effective competition within such period as OFCOM determine to be appropriate in relation to the review;

• (c) that competition law alone is insufficient adequately to address the identified market failure.

• (2BA) In considering whether to make or revise a market power determination in relation to a services market, OFCOM may have regard to EECC materials relating to market analysis or the determination of what constitutes significant market power.

• (2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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,

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 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 48(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 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 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.

• (6A) In this section “EECC materials” means recommendations or guidelines published by the European Commission, and guidelines published by BEREC, under the Framework Directive or the EECC Directive (including those published after IP completion day).

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proposals for identifying markets and for market power determinations

80

• (1) Where section 80A applies, OFCOM must comply with the applicable requirements of that section ... before—

• (a) identifying a market for the purposes of making a market power determination, or

• (b) making a market power determination.

• (1A) Where section 80A does not apply because of subsection (2) of that section—

• (a) any identification of a market or market power determination must be temporary; and

• (b) the notification published under section 79(4) containing the identification or determination must state the period for which the identification or determination is to have effect.

• (1B) Where OFCOM propose to extend or make permanent any such temporary identification or determination—

• (a) section 80A does not apply in relation to the proposal; ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delivery of copies of notifications under ss. 79 and 80

81

• (1) OFCOM must send to the Secretary of State a copy of every notification published under section 79(4) or 80A(3).

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

European Commission’s powers in respect of proposals

82

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special rules for transnational markets

83

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Review of services market identifications and determinations

84

• (1) This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.

• (2) OFCOM must, when required to do so by section 84A and at such other times as they may 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 conditions set by reference to a market power determination made on such a basis.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 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.

• (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 further analysis.

• (7) Sections 79 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 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.

Review of apparatus market identifications and determinations

85

• (1) This section applies where OFCOM have identified and analysed an apparatus market for the purposes of making a market power determination.

• (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 conditions set by reference to any such market power determination.

• (3) 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 shall revoke every SMP apparatus condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

• (4) Before carrying out any 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 any earlier analysis.

• (5) Where on such a review OFCOM conclude that the appropriate markets have changed—

• (a) they shall 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 further analysis.

• (6) Where on such a review OFCOM conclude that there is no person at all with significant market power in relation to the identified market—

• (a) they must so inform the Secretary of State; and

• (b) the Secretary of State may by order remove or restrict OFCOM’s power under this Chapter to set SMP apparatus conditions by reference to that market.

• (7) Sections 79, 80, 80A and 81(1) apply—

• (a) in relation to the identification of a apparatus 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 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.

Cases where review required

86

• (1) OFCOM must not set an SMP services condition by a notification which does not also make the market power determination by reference to which the condition is set unless—

• (a) the condition is set by reference to a market power determination which has been reviewed under section 84 and, in consequence of that review, is confirmed in the notification setting the condition; or

• (b) the condition is set by reference to a market power determination made in relation to a market in which OFCOM are satisfied there has been no material change since the determination was made.

• (2) OFCOM must not modify or revoke SMP services conditions applying to a person except in a case falling within subsection (3) or (4).

• (3) The first case is where, for the purpose of determining whether to make the modification or revocation, OFCOM have—

• (a) carried out a further analysis under section 84 of the market in question; and

• (b) reviewed the market power determination for the time being in force in that person’s case.

• (4) The second case is where OFCOM are satisfied that there has not—

• (a) in the case of an unmodified condition, since the condition was set, or

• (b) in any other case, since the condition was last modified,

been a material change in the market identified or otherwise used for the purposes of the market power determination by reference to which the condition was set or last modified.

• (5) OFCOM must not modify SMP apparatus conditions applying to a person except where, for the purpose of determining whether to make the modification or revocation, they have—

• (a) carried out a further analysis under section 85 of the market in question; and

• (b) reviewed the market power determination for the time being in force in that person’s case.

• (6) A change is a material change for the purposes of subsection (1) or (4) if it is one that is material to—

• (a) the setting of the condition in question; or

• (b) the modification or revocation in question.

SMP services conditions: subject-matter

Conditions about network access etc.

87

• (1) Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—

• (a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and

• (b) apply those conditions to that person.

• (2) This section applies to—

• (a) a person who provides a public electronic communications network; and

• (b) a person who makes available facilities that are associated facilities by reference to such a network.

• (3) This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects—

• (a) the provision of network access to the relevant network;

• (b) the use of the relevant network; and

• (c) the availability of the relevant facilities.

• (3A) The assets as respects which entitlements may be given under subsection (3) include, in the case of assets which are not active, any which, although forming part of the relevant network or the relevant facilities, do not form part of the services market to which the determination relates.

• (4) In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—

• (a) the technical and economic viability (including the viability of other network access products, whether provided by the dominant provider or another person) , having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;

• (b) the feasibility of the provision of the proposed network access;

• (ba) any technological developments that, in OFCOM’s opinion, are likely to affect the design and management of the relevant network or (as the case may be) the relevant facilities;

• (bb) the need to ensure that the provision of the proposed network access does not have the effect of favouring one form of technology over another in relation to the design and management of electronic communications networks;

• (c) the investment made by the person initially providing or making available the network or other facility in respect of which an entitlement to network access is proposed (taking account of any public investment made);

• (d) the need to secure effective competition (including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition) in the long term and to support innovative business models that support sustainable competition; and

• (e) any rights to intellectual property that are relevant to the proposal; ...

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) The conditions authorised by subsection (3) may include provision—

• (a) for securing fairness and reasonableness in the way in which requests for network access are made and responded to; and

• (b) for securing that the obligations contained in the conditions are complied with within the periods and at the times required by or under the conditions.

• (5A) The SMP conditions authorised by this section also include a condition which—

• (a) is of a technical or operational nature; and

• (b) appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with a condition under subsection (3).

• (5B) A condition falling within subsection (5A) may provide that compliance with the condition is not required unless a person on whom an entitlement is or may be conferred in pursuance of a requirement imposed by a condition under subsection (3) fulfils such technical or operational requirements as may be specified by OFCOM.

• (5C) It shall be the duty of OFCOM, when setting a condition falling within subsection (5A), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.

• (6) The SMP conditions authorised by this section also include one or more of the following—

• (a) a condition requiring the dominant provider not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with network access to the relevant network or with the availability of the relevant facilities;

• (b) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;

• (c) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which he is willing to enter into an access contract;

• (d) a condition requiring the terms and conditions on which the dominant provider is willing to enter into an access contract to include such terms and conditions as may be specified or described in the condition;

• (e) a condition requiring the dominant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which he is willing to enter into an access contract.

• (7) The SMP conditions authorised by this section also include conditions requiring the dominant provider to maintain a separation for accounting purposes between such different matters relating—

• (a) to network access to the relevant network, or

• (b) to the availability of the relevant facilities,

as OFCOM may from time to time direct.

• (8) The SMP conditions authorised by subsection (7) include conditions imposing requirements about the accounting methods to be used in maintaining the separation.

• (9) The SMP conditions authorised by this section also include (subject to section 88) conditions imposing on the dominant provider—

• (a) such price controls as OFCOM may direct in relation to matters connected with the provision of network access to the relevant network, or with the availability of the relevant facilities;

• (b) such rules as they may make in relation to those matters about the recovery of costs and cost orientation;

• (c) such rules as they may make for those purposes about the use of cost accounting systems; and

• (d) obligations to adjust prices in accordance with such directions given by OFCOM as they may consider appropriate.

• (10) The SMP conditions authorised by subsection (9) include conditions requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations imposed by virtue of that subsection.

• (11) Where OFCOM set a condition authorised by this section which imposes rules on the dominant provider about the use of cost accounting systems, it shall be their duty also to set, and to apply to him, an SMP condition which imposes on him an obligation—

• (a) to make arrangements for a description to be made available to the public of the cost accounting system used in pursuance of that condition; and

• (b) to include in that description details of—

• (i) the main categories under which costs are brought into account for the purposes of that system; and

• (ii) the rules applied for the purposes of that system with respect to the allocation of costs.

• (12) In this section—

• “access contract” means—a contract for the provision by a person to whom this section applies to another person of network access to the relevant network; ora contract under which the relevant facilities are made available by a person to whom this section applies to another person;

• “the relevant facilities”, in relation to a person to whom this section applies, means the associated facilities made available by that person in relation to a public electronic communications network; and

• “the relevant network”, in relation to such a person, means the public electronic communications network provided by him.

Conditions about network access pricing etc.

88

• (1) OFCOM are not to set an SMP condition falling within section 87(9) except where—

• (a) it appears to them from the market analysis carried out for the purpose of setting that condition that there is a relevant risk of adverse effects arising from price distortion; and

• (b) it also appears to them that the setting of the condition is appropriate for the purposes of—

• (i) promoting efficiency;

• (ii) promoting sustainable competition; ...

• (iii) conferring the greatest possible benefits on the end-users of public electronic communications services having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and

• (iv) where relevant to the market analysis, promoting the availability and use of new and enhanced networks.

• (1A) Even if the tests in subsection (1)(a) and (b) are satisfied, OFCOM may consider not imposing an SMP condition if they consider—

• (a) that a demonstrable retail price constraint is present; and

• (b) that obligations imposed by SMP conditions not falling within section 87(9) ensure effective and non-discriminatory access.

• (2) In setting an SMP condition falling within section 87(9), OFCOM must take account of—

• (a) the extent of the investment in the matters to which the condition relates of the person to whom it is to apply; and

• (b) where the condition involves price controls on the provision of network access to existing network elements, the benefits of predictable and stable wholesale prices in ensuring—

• (i) efficient market entry; and

• (ii) sufficient incentives for all undertakings to bring into operation new and enhanced networks.

• (3) For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—

• (a) so fix and maintain some or all of his prices at an excessively high level, or

• (b) so impose a price squeeze,

as to have adverse consequences for end-users of public electronic communications services.

• (4) In considering the matters mentioned in subsection (1)(b) OFCOM may—

• (a) have regard to the prices at which services are available in comparable competitive markets;

• (b) determine what they consider to represent efficiency by using such cost accounting methods as they think fit.

• (5) In this section “the dominant provider” has the same meaning as in section 87.

Conditions about network access in exceptional cases

89

• (1) This section applies where—

• (a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market;

• (b) that person is the provider of an electronic communications network or a person who makes associated facilities available; and

• (c) OFCOM consider that there are exceptional circumstances making it appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.

• (2) OFCOM may set the additional SMP conditions and apply them to the dominant provider ...

Conditions about carrier selection and pre-selection

90

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conditions about regulation of services etc. for end-users

91

• (1) Where—

• (a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market (“the relevant market”),

• (b) the relevant market is one for the end-users of public electronic communications services that are available in that market, and

• (c) it appears to OFCOM that the test in subsection (2) is satisfied in the case of that provider,

they shall set, and apply to that provider, such SMP conditions authorised by this section as they consider appropriate.

• (2) That test is that OFCOM are unable, by the setting of conditions of the sorts specified in subsection (3), to perform, or fully to perform, their duties under section 4 in relation to the market situation in the relevant market.

• (3) The sorts of conditions referred to in subsection (2) are—

• (a) access-related conditions; and

• (b) SMP conditions authorised or required by sections 87 to 89 .

• (4) The reference in subsection (2) to the market situation in the relevant market is a reference to the situation revealed by such market analyses of that market as may have been carried out for the purposes of this Chapter.

• (5) The SMP conditions authorised by this section are conditions imposing on the dominant provider such regulatory controls as OFCOM may from time to time direct in relation to the provision by that provider of any public electronic communications service to the end-users of that service.

• (6) Where OFCOM set a condition which is authorised by this section and imposes regulatory control on tariffs or other matters to which costs are relevant, they shall also set, and apply to the dominant provider, an SMP condition which requires him, to the extent that they consider it appropriate—

• (a) to use such cost accounting systems as may be determined by them;

• (b) to have the use of those systems audited annually by a qualified auditor; and

• (c) to publish an annual statement about compliance by the dominant provider with the obligations imposed by virtue of paragraph (a).

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) In this section “qualified auditor” means a person who—

• (a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and

• (b) if the appointment to carry out such auditing as is mentioned in subsection (6)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).

Conditions about leased lines

92

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SMP apparatus conditions: subject-matter

Conditions about apparatus supply

93

• (1) Where OFCOM have made a determination that a person (“the dominant supplier”) has significant market power in an identified apparatus market, they may—

• (a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the supply of electronic communications apparatus; and

• (b) apply those conditions to that person.

• (2) This section authorises the setting of SMP conditions of each of the following descriptions—

• (a) conditions requiring the dominant supplier to maintain such a separation for accounting purposes between matters relating to the supply of electronic communications apparatus and other matters as may be described in the conditions;

• (b) conditions imposing requirements about the accounting methods to be used in maintaining the separation; and

• (c) conditions imposing such rules as OFCOM may make, for the purpose of securing the maintenance of the separation, about the use of cost accounting systems.

• (3) This section also authorises the setting of SMP conditions imposing price controls in relation to the hiring of telephones which are hardwired to an electronic communications network.

• (4) Conditions set under this section must not make provision in relation to the supply of electronic communications apparatus unless the apparatus is of a description of apparatus as respects the supply of which the dominant supplier has been found to have significant market power.

• (5) For the purposes of this section a telephone is hardwired to an electronic communications network where, in order for it to be used with that network—

• (a) it has to be physically attached to apparatus comprised in the network; and

• (b) the attachment has to be effected by a process that requires the use of a tool.

Enforcement of conditions

Notification of contravention of conditions

94

• (1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, an SMP apparatus condition 5, they may give that person a notification under this section.

• (2) A notification under this section is one which—

• (a) sets out the determination made by OFCOM;

• (b) specifies the condition and contravention in respect of which that determination has been made; and

• (c) specifies the period during which the person notified has an opportunity of doing the things specified in subsection (3).

• (3) Those things are—

• (a) making representations about the matters notified;

• (b) complying with notified conditions of which he remains in contravention; and

• (c) remedying the consequences of notified contraventions.

• (4) Subject to subsections (5) to (7) and section 98(3), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

• (5) OFCOM may, if they think fit, allow a longer period for doing those things either—

• (a) by specifying a longer period in the notification; or

• (b) by subsequently, on one or more occasions, extending the specified period.

• (6) The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

• (7) The person notified shall also have a shorter period if—

• (a) OFCOM have reasonable grounds for believing that the contravention is a repeated contravention;

• (b) they have determined that, in those circumstances, a shorter period would be appropriate; and

• (c) the shorter period has been specified in the notification.

• (8) A notification under this section—

• (a) may be given in respect of more than one contravention; and

• (b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

• (9) Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

• (a) the contravention is one occurring after the time of the giving of the earlier notification;

• (b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

• (c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

• (10) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

• (10A) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.

• (10B) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.

• (11) For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

• (a) a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same condition; and

• (b) the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 95(2) or 96(2) that the contravention to which the previous notification related did occur.

Enforcement notification for contravention of conditions

95

• (1) This section applies where—

• (a) a person (“the notified provider”) has been given a notification under section 94;

• (b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

• (c) the period allowed for the making of the representations has expired.

• (2) OFCOM may give the notified provider an enforcement notification if they are satisfied—

• (a) that he has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and

• (b) that he has not, during the period allowed under that section, taken all such steps as they consider appropriate—

• (i) for complying with that condition; and

• (ii) for remedying the consequences of the notified contravention of that condition.

• (3) An enforcement notification is a notification which imposes one or both of the following requirements on the notified provider—

• (a) a requirement to take such steps for complying with the notified condition as may be specified in the notification;

• (b) a requirement to take such steps for remedying the consequences of the notified contravention as may be so specified.

• (4) A decision of OFCOM to give an enforcement notification to a person—

• (a) must be notified by them to that person, together with the reasons for the decision, no later than one week after the day on which it is taken; and

• (b) must fix a reasonable period for the taking of the steps required by the notification.

• (5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.

• (6) That duty shall be enforceable in civil proceedings by OFCOM—

• (a) for an injunction;

• (b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

• (c) for any other appropriate remedy or relief.

Penalties for contravention of conditions

96

• (1) This section applies (in addition to section 95) where—

• (a) a person (“the notified provider”) has been given a notification under section 94;

• (b) OFCOM have allowed the notified provider an opportunity of making representations about the matters notified; and

• (c) the period allowed for the making of the representations has expired.

• (2) OFCOM may impose a penalty on the notified provider if he—

• (a) has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and

• (b) has not, during the period allowed under that section, taken the steps OFCOM consider appropriate—

• (i) for complying with the notified condition; and

• (ii) for remedying the consequences of the notified contravention of that condition.

• (3) Where a notification under section 94 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

• (4) Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

• (5) OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 95 in respect of the notified contravention.

• (6) Where OFCOM impose a penalty on a person under this section, they shall—

• (a) within one week of making their decision to impose the penalty, notify that person of that decision and of their reasons for that decision; and

• (b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

• (7) A penalty imposed under this section—

• (a) must be paid to OFCOM; and

• (b) if not paid within the period fixed by them, is to be recoverable by them accordingly.

Amount of penalty under s. 96

97

• (1) The amount of a penalty imposed under section 96 or notified under section 96A (other than a penalty falling within section 96B(4)) is to be such amount not exceeding ten per cent. of the turnover of the person ’s relevant business for the relevant period as OFCOM determine to be—

• (a) appropriate; and

• (b) proportionate to the contravention in respect of which it is imposed.

• (2) In making a determination in relation to a penalty imposed under section 96 OFCOM must have regard to—

• (a) any representations made to them by the person ;

• (b) any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94; and

• (c) any steps taken by him for remedying the consequences of those contraventions.

• (3) For the purposes of this section—

• (a) the turnover of a person’s relevant business for a period shall be calculated in accordance with such rules as may be set out by order made by the Secretary of State; and

• (b) provision may also be made by such an order for determining what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made.

• (4) No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

• (5) In this section—

• “relevant business” means (subject to the provisions of an order under subsection (3) and to subsections (6) and (7)) so much of any business carried on by the person as consists in any one or more of the following—the provision of an electronic communications network;the provision of an electronic communications service;the making available of associated facilities;the supply of directories for use in connection with the use of such a network or service;the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service;any business not falling within any of the preceding paragraphs which is carried on in association with any business in respect of which any access-related condition is applied to the person carrying it on;

• “relevant period”, in relation to a contravention by a person of a condition set under section 45 or of a commitment that is made binding by a commitments decision, means—except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 94 or 96A;in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; andin the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.

• (6) In the case of a contravention of an SMP apparatus condition the relevant business is so much of any business carried on by the person in respect of whose contravention the penalty is imposed as consists in the supply of electronic communications apparatus.

• (7) So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—

• (a) a contravention of an access-related condition imposed in respect of that business; or

• (b) a contravention of an enforcement notification given under section 95 or a confirmation decision under section 96C relating to such a condition.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to deal with urgent cases

98

• (1) This section applies where OFCOM determine—

• (a) that they are entitled to give a notification under section 96A with respect to a contravention by a person (“the contravening provider”) of a condition set under section 45 or of a commitment that is made binding by a commitments decision, ...;

• (b) that there are reasonable grounds for suspecting that the case is an urgent case; and

• (c) that the urgency of the case makes it appropriate for OFCOM to take action under this section.

• (2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

• (a) a serious threat to the safety of the public, to public health or to national security;

• (b) serious economic or operational problems for persons (other than the contravening provider) who are communications providers or persons who make associated facilities available; or

• (c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) OFCOM shall ... have power to give to the contravening provider—

• (a) a direction that his entitlement to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

• (b) a direction that that entitlement is restricted in the respects set out in the direction.

• (5) A direction under subsection (4)—

• (a) must specify the networks, services and facilities to which it relates; and

• (b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

• (6) A direction under subsection (4)—

• (a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

• (b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting his customers.

• (7) Those conditions may include a condition requiring the making of payments—

• (a) by way of compensation for loss or damage suffered by the contravening provider’s customers as a result of the direction; or

• (b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

• (8) OFCOM have power to revoke a direction given under subsection (4)—

• (a) with effect from such time as they may direct;

• (b) subject to compliance with such requirements as they may specify; and

• (c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.

Confirmation of directions under s. 98

99

• (1) As soon as reasonably practicable after giving a direction under section 98(4), OFCOM must give the person to whom it is given—

• (a) an opportunity of making representations to them about the grounds on which it was given and its effect; and

• (b) an opportunity of proposing steps to remedy the situation.

• (2) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction under section 98(4) was given) , they must determine—

• (a) whether the contravention providing the grounds for the giving of the direction did occur; and

• (b) whether the circumstances made it an urgent case justifying the giving of the direction.

• (2A) The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

• (a) require additional time to consider representations received; or

• (b) decide that it is necessary to obtain additional information from the person in order to make a determination under subsection (2).

• (3) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

• (4) If not, they must exercise their power to revoke it.

• (5) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.

• (6) Conditions included in a direction by virtue of section 98(7) have effect only if the direction is confirmed.

Suspending service provision for contraventions of conditions

100

• (1) OFCOM may give a direction under this section to a person where—

• (a) either Condition A or Condition B is satisfied in relation to the person; and

• (b) the giving of a direction is appropriate and proportionate to the contravention in respect of which it is imposed.

• (1A) Condition A is that—

• (a) the person is in serious contravention of a condition set under section 45, other than SMP apparatus conditions; and

• (b) the proposed direction has been notified to the person under section 96A and confirmed by a confirmation decision under section 96C.

• (1B) Condition B is that—

• (a) the person has repeatedly contravened a condition set under section 45, other than SMP apparatus conditions; and

• (b) an attempt, by the imposition of penalties or the giving of notifications under section 96A and confirmation decisions under section 96C, or both, to secure compliance with the contravened conditions has failed.

• (1C) Where Condition A is satisfied, a direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.

• (1D) Where Condition B is satisfied, a direction under this section is to be given in accordance with the procedure set out in section 102.

• (2) A direction under this section is—

• (a) a direction that the entitlement of the person to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

• (b) a direction that that entitlement is restricted in the respects set out in the direction.

• (3) A direction under this section—

• (a) must specify the networks, services and facilities to which it relates; and

• (b) except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

• (4) A direction under this section—

• (a) in providing for the effect of a suspension or restriction to be postponed, may provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

• (b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the person as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

• (5) Those conditions may include a condition requiring the making of payments—

• (a) by way of compensation for loss or damage suffered by the person ’s customers as a result of the direction; or

• (b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

• (6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

• (a) with effect from such time as they may direct;

• (b) subject to compliance with such requirements as they may specify; and

• (c) to such extent and in relation to such networks, services or facilities, or parts of a network, service or facility, as they may determine.

• (7) For the purposes of this section there are repeated contraventions by a person of conditions set under section 45 to the extent that—

• (a) in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(2) in respect of the contravention;

• (b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition under section 45;

• (c) the previous confirmation decision and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

• (8) This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition set under section 45, other than an SMP apparatus condition.

Suspending apparatus supply for contraventions of conditions

101

• (1) OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—

• (a) that he is or has been in serious and repeated contravention of any SMP apparatus conditions;

• (b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 or both, to secure compliance with the contravened conditions has failed; and

• (c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.

• (2) A direction under this section is—

• (a) a direction to the contravening supplier to cease to act as a supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description); or

• (b) a direction imposing such restrictions as may be set out in the direction on the supply by that supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description).

• (3) A direction under this section takes effect, except so far as it otherwise provides, for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

• (4) A direction under this section—

• (a) may provide for a prohibition or restriction to take effect only at a time determined by or in accordance with the terms of the direction; and

• (b) in connection with a prohibition or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening supplier as appear to OFCOM to be appropriate for the purpose of protecting that supplier’s customers.

• (5) Those conditions may include a condition requiring the making of payments—

• (a) by way of compensation for loss or damage suffered by the contravening supplier’s customers as a result of the direction; or

• (b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

• (6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may at any time revoke a direction under this section or modify its conditions—

• (a) with effect from such time as they may direct;

• (b) subject to compliance with such requirements as they may specify; and

• (c) to such extent and in relation to such apparatus or descriptions of apparatus as they may determine.

• (7) For the purposes of this section there are repeated contraventions by a person of SMP apparatus conditions to the extent that—

• (a) in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

• (b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of an SMP apparatus condition; and

• (c) the previous notification and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

Procedure for directions under ss. 100 and 101

102

• (1) Except in an urgent case, or a case where Condition A in section 100 is satisfied, OFCOM are not to give a direction under section 100 or 101 unless they have—

• (a) notified the contravening provider or contravening supplier of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;

• (b) provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and

• (c) considered every representation and proposal made to them during the period allowed by them for the contravening provider or the contravening supplier to take advantage of that opportunity.

• (2) That period must be—

• (a) in relation to a direction under section 100, such reasonable period as OFCOM may determine, and

• (b) in relation to a direction under section 101, a period ending not less than 30 days after the day of the giving of the notification.

• (3) As soon as practicable after giving a direction under section 100 or 101 in an urgent case, OFCOM must, provide the contravening provider or contravening supplier with an opportunity of—

• (a) making representations about the effect of the direction and of any of its conditions; and

• (b) proposing steps for remedying the situation.