The Electronic Communications and Wireless Telegraphy Regulations 2011

• Citation: S.I. 2011/1210
• Sections: 144

Section 1 Citation, commencement and extent

(1) These Regulations may be cited as the Electronic Communications and Wireless Telegraphy Regulations 2011.

(2) These Regulations come into force on 26th May 2011.

(3) Subject to paragraphs (4) and (5), these Regulations extend to England and Wales, Scotland and Northern Ireland.

(4) Paragraphs 2 and 101 of Schedule 1 extend to England and Wales only.

(5) Paragraph 102 of that Schedule extends to Scotland only.

Section 2 Implementation of Directives 2009/136/EC and 2009/140/EC

(1) Schedule 1 (which contains provision amending the Communications Act 2003 and other enactments for the purpose of implementing Directive 2009/136/EC of the European Parliament and of the Council and Directive 2009/140/EC of the European Parliament and of the Council ) has effect.

(2) Schedule 2 (which contains provision amending the Wireless Telegraphy Act 2006 for the purpose of implementing Directive 2009/140/EC ) has effect.

Section 3 6 month period for deciding application to install facilities

(1) This regulation applies where—

(a) a person authorised to provide public electronic communications networks applies to a competent authority for the granting of rights to install facilities on, over or under public or private property for the purposes of such a network,

(b) a person authorised to provide electronic communications networks other than to the public applies to a competent authority for the granting of rights to install facilities on, over or under public property for the purposes of such a network, or

(c) a person applies to OFCOM for a direction applying the electronic communications code in the person's case.

(2) Except in cases of expropriation, the competent authority must make its decision within 6 months of receiving the completed application.

(3) In this regulation “ public electronic communications network ”, “ electronic communications network ” and “ OFCOM ” have the same meanings as in Chapter 1 of Part 2 of the Communications Act 2003 .

Section 4 Transitional provisions

Schedule 3 (which contains transitional and saving provisions) has effect.

Section 5 Review of implementation

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

Section 1 Telecommunications Act 1984

In Schedule 2 to the Telecommunications Act 1984 (the Telecommunications Code), after paragraph 24 insert—

Electronic communications networks: determination of applications to install facilities

(24A) Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulation 2011 makes provision about the time within which certain applications under this code for the granting of rights to install facilities must be determined.

Section 2 New Roads and Street Works Act 1991

In Schedule 3 to the New Roads and Street Works Act 1991 (street works licences), after paragraph 2 insert—

Electronic communications networks: determination of applications to install facilities

(2A) Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 makes provision about the time within which certain applications for the granting of rights to install facilities must be determined.

Section 3 Office of Communications Act 2002

In the Schedule to the Office of Communications Act 2002 (further provision about OFCOM), after paragraph 2(4) insert—

(5) At the time of removing a person from office under sub-paragraph (4) the Secretary of State must make public the decision to remove the person.

(6) The Secretary of State must—

(a) give the person a statement of reasons for the removal, and

(b) if so requested by the person, publish the statement.

Section 4 Communications Act 2003

Amend the Communications Act 2003 as follows.

Section 5 Communications Act 2003

In section 4 (duties for purpose of fulfilling Community obligations)—

(a) after subsection (6) insert—

(6A) The fourth Community requirement does not apply to—

(a) the imposition, in relation to a wireless telegraphy licence, of a limitation of a kind falling within section 9ZA(1) of the Wireless Telegraphy Act 2006; or

(b) the review, variation or removal of such a limitation.

(b) in subsection (8)—

(i) in paragraph (a) omit the words from “in the markets” to the end,

(ii) after paragraph (a) omit “and” and insert—

(aa) efficient investment and innovation; and

(iii) in paragraph (b) for “such facilities” substitute “ associated facilities ” ,

(c) in subsection (10)—

(i) for “or” after paragraph (b)(ii) substitute “ and ” ,

(ii) after paragraph (c)(ii) omit “or” and insert—

(iia) the European Conference of Postal and Telecommunications Administrations; and

(d) in subsection (12), omit the definition of “the Framework Directive”, and

(e) after subsection (12) insert—

(13) In this section and sections 4A and 5, “ the Framework Directive ” has the same meaning as in Chapter 1 of Part 2.

Section 6

After section 4 insert—

Duty to take account of European Commission recommendations for harmonisation

(4A)

(1) This section applies to the following functions of OFCOM—

(a) their functions under Chapter 1 of Part 2;

(b) their functions under the enactments relating to the management of the radio spectrum;

(c) their functions under Chapter 3 of Part 2 in relation to disputes referred to them under section 185;

(d) their functions under sections 24 and 25 so far as they relate to information required for purposes connected with matters in relation to which functions specified in this subsection are conferred on OFCOM; and

(e) their functions under section 26 so far as they are carried out for the purpose of making information available to persons mentioned in subsection (2)(a) to (c) of that section.

(2) In carrying out those functions, OFCOM must take due account of all applicable recommendations issued (whether before or after the coming into force of this section) by the European Commission under Article 19(1) of the Framework Directive.

(3) Where OFCOM decide not to follow such a recommendation they must notify the Commission of their decision, and of the reasons for it.

Section 7

In section 5 (directions in respect of networks and spectrum functions)—

(a) after subsection (3) insert—

(3A) The Secretary of State may not give a direction under this section in respect of a function that Article 3(3a) of the Framework Directive requires OFCOM to exercise without seeking or taking instructions from any other body.

(b) after subsection (4) insert—

(4A) Before giving a direction under this section, the Secretary of State must take due account of the desirability of not favouring—

(a) one form of electronic communications network, electronic communications service or associated facility, or

(b) one means of providing or making available such a network, service or facility,

over another.

Section 8

In section 26 (publication of information and advice)—

(a) in subsection (1) for “may” substitute “ must ” , and

(b) after subsection (2)(b) insert—

(ba) any person affected by the application of the electronic communications code (within the meaning of section 106(1));

Section 9

In section 32 (meaning of electronic communications networks and services)—

(a) in subsection (1)(b)—

(i) omit “and” before sub-paragraph (iii), and

(ii) after that sub-paragraph insert—

; and

(iv) (except for the purposes of sections 125 to 127) other resources, including network elements which are not active.

(b) for subsection (3) substitute—

(3) In this Act “ associated facility ” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a) making the provision of that network or service possible;

(b) making possible the provision of other services provided by means of that network or service; or

(c) supporting the provision of such other services.

Section 10

In section 35 (notification of contravention of section 33)—

(a) in subsection (2) omit “and” after paragraph (a) and for paragraph (b) substitute—

(b) specifies the contravention in respect of which the determination has been made;

(c) specifies the period during which the person notified has an opportunity to make representations;

(d) specifies information to be provided by the person to OFCOM; and

(e) specifies any penalty which OFCOM are minded to impose in accordance with section 35A.

(b) omit subsections (3) to (7) and (10).

Section 11

After section 35 insert—

Penalties for contravention of section 33

(35A)

(1) This section applies where a person is given a notification under section 35 which specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

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

(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 36(4)(c) which requires immediate action; or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5) The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—

(a) appropriate; and

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

(6) The amount of any other penalty specified in a notification under section 35 is to be such amount not exceeding £10,000 as OFCOM determine to be—

(a) appropriate, and

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

(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (6).

(8) No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Section 12

In section 36 (enforcement notification for contravention of section 33)—

(a) for subsections (2) and (3) substitute—

(2) OFCOM may—

(a) give the notified provider a decision (a “confirmation decision”) confirming the imposition of requirements in accordance with the notification under section 35; or

(b) inform the notified provider that they are satisfied with the notified provider's representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of section 33.

(b) for subsection (4) substitute—

(4) A confirmation decision—

(a) must be given to the person without delay;

(b) must include reasons for the decision;

(c) may require immediate action by the person to comply with requirements imposed by virtue of section 35(2)(d), or may specify a period within which the person must comply with those requirements; and

(d) may require the person to pay—

(i) the penalty specified in the notification under section 35, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person's representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.

(c) in subsection (5)—

(i) for “an enforcement notification” substitute “ a confirmation decision ” , and

(ii) for “it” substitute “ any requirement imposed by it ” ,

(d) after subsection (6) insert—

(7) A penalty imposed by a confirmation decision—

(a) must be paid to OFCOM; and

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

(e) in the heading for “Enforcement notification” substitute “ Confirmation decision ” .

Section 13

Omit section 37.

Section 14

In section 38 (fixing of charges), omit subsection (6)(f).

Section 15

In section 40 (notification of non-payment of charges)—

(a) in subsection (3)(b) for “doing the things specified in subsection (4)” substitute “ making representations about the notified determination ” , and

(b) omit subsections (4) to (8) and (11).

Section 16

In section 41 (penalties for non-payment of charges)—

(a) in subsection (2) omit paragraph (b) (and “and” after paragraph (a)), and

(b) in subsection (7)(a) for “within one week of making their decision to impose the penalty,” substitute “ without delay, ” .

Section 17

In section 42 (suspending service provision for non-payment)—

(a) in subsection (1)—

(i) in paragraph (a) for “serious and repeated” substitute “ serious or repeated ” ,

(ii) after paragraph (b) insert—

(ba) that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;

(iii) in paragraph (c) after “that” insert “ , in the case of a repeated contravention, ”

(iv) in paragraph (d) after “that” insert “ , in the case of a repeated contravention, ” , and

(v) for paragraph (e) substitute—

(e) that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.

(b) for subsection (7) substitute—

(7) That period is such reasonable period as OFCOM may specify, beginning with the day of the giving of the notification.

(c) in subsection (9)(b) for “twelve” substitute “ 24 ” .

Section 18

In section 43(6) (enforcement of directions under section 42) for “94” substitute “ 96A ” .

Section 19

In section 45(8) (power of OFCOM to set conditions) —

(a) in paragraph (a) for “92” substitute “ 91 ” , and

(b) in paragraph (b) for “89” substitute “ 89A ” .

Section 20

In section 46(8)(b) (persons to whom conditions may apply) for “89” substitute “ 89A ” .

Section 21

In section 47 (test for setting or modifying conditions)—

(a) in subsection (2)(a), at the end insert “ (but this paragraph is subject to subsection (3)) ” , and

(b) after subsection (2) insert—

(3) Subsection (2)(a) does not apply in relation to the setting of a general condition.

Section 22

In section 48 (procedure for setting, modifying and revoking conditions)—

(a) for subsections (2) and (3) substitute—

(2) Where section 48A applies, OFCOM must comply with the applicable requirements of that section and section 48B before—

(a) setting conditions under section 45; or

(b) modifying or revoking a condition so set.

(2A) Where section 48A does not apply to the setting, modification or revocation of conditions because of subsection (2) of that section—

(a) the conditions, or their modification or revocation, must be temporary; and

(b) the notification published under subsection (1) of this section must state the period for which the conditions, or their modification or revocation, are to have effect.

(2B) Where OFCOM propose to extend or make permanent any such temporary conditions, modification or revocation—

(a) sections 48A and 48B(1) do not apply in relation to the proposal; and

(b) subsections (2) to (9) of section 48B apply in relation to the proposal as if the words from the beginning of subsection (2) to “appropriate” were omitted.

(b) in subsection (4) for “notification under subsection (2)” substitute “ proposal by OFCOM ” ,

(c) omit subsection (5),

(d) in subsection (6) after “this section” insert “ or section 48A ” , and

(e) in subsection (7), at the end insert “ , section 48A or section 48B ” .

Section 23

After section 48 insert—

Domestic consultation for section 45 conditions

(48A)

(1) This section applies where OFCOM propose to set, modify or revoke—

(a) SMP apparatus conditions; or

(b) any other conditions set under section 45 where what is proposed would, in OFCOM's opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2) But this section does not apply where the proposal is of EU significance and in OFCOM's opinion—

(a) there are exceptional circumstances; and

(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

(3) OFCOM must publish a notification—

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

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

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

(d) specifying the period within which representations may be made to OFCOM about their proposal.

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

(5) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

(6) OFCOM must—

(a) consider every representation about the proposal made to them during the period specified in the notification; and

(b) have 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.

(7) Where the proposal is not of EU significance, OFCOM may then give effect to it, with any modifications that appear to OFCOM to be appropriate.

EU consultation for section 45 conditions

(48B)

(1) This section applies where, after complying with section 48A(6) in relation to a proposal of EU significance, OFCOM wish to proceed with the proposal.

(2) After making any modifications of the proposal that appear to OFCOM to be appropriate, OFCOM must send a copy of the proposal, and of a statement setting out the reasons for it, to—

(a) the European Commission;

(b) BEREC; and

(c) the regulatory authorities in every other member State.

(3) If at the end of the period of one month referred to in Article 7(3) of the Framework Directive no notification has been given to OFCOM by the Commission under Article 7a(1) of that Directive, OFCOM may give effect to the proposal, with any modifications that appear to OFCOM to be appropriate.

(4) Before giving effect to the proposal under subsection (3), OFCOM must consider any comments made by—

(a) the Commission;

(b) BEREC; and

(c) any regulatory authority in any other member State.

(5) Subsections (6) to (9) apply where such a notification is given by the Commission to OFCOM during that period.

(6) During the period of 3 months beginning with the notification, OFCOM must co-operate with the Commission and BEREC to identify the most appropriate and effective measure.

(7) OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate, within one month (or such longer period as may be allowed under paragraph (6) of Article 7a of the Framework Directive) of the Commission—

(a) issuing a recommendation to amend or withdraw the proposal in accordance with paragraph (5)(a) of that Article; or

(b) taking a decision to lift its reservations in accordance with paragraph (5)(b) of that Article.

(8) In a case in which OFCOM give effect to the proposal despite a recommendation of the Commission to amend or withdraw the proposal, OFCOM must send to the Commission a copy of a reasoned justification for their decision.

(9) If at the end of the period of one month referred to in paragraph (5) of Article 7a of the Framework Directive the Commission has neither issued a recommendation nor lifted its reservations in accordance with that paragraph, OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate.

Delivery of copies of notifications etc. in respect of section 45 conditions

(48C)

(1) OFCOM must send to the Secretary of State a copy of every notification published under section 48(1) or 48A(3).

(2) OFCOM must send to the European Commission a copy of every notification published under section 48(1) with respect to—

(a) a universal service condition;

(b) an access-related condition falling within section 73(2);

(c) an SMP services condition.

(3) OFCOM must send to BEREC a copy of every notification published under section 48(1) with respect to a proposal of EU significance.

(4) Where a notification published under section 48(1) relates to a proposal to which section 48A did not apply because of subsection (2) of that section, OFCOM must send a copy of a statement setting out the reasons for the proposal and for the urgent need to act to—

(a) the Commission;

(b) BEREC; and

(c) the regulatory authorities in every other member State.

Section 24

In section 49 (directions and approvals for the purposes of a s. 45 condition)—

(a) in subsection (1)(b) after “that person” insert “ (referred to in this section and sections 49A to 49C as “the responsible person”) ” ,

(b) in subsection (2)—

(i) in the opening words for “A person” substitute “ The responsible person ” , and

(ii) at the end of paragraph (a) insert “ (but this paragraph is subject to subsection (2A)) ” ,

(c) after subsection (2) insert—

(2A) Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition.

(d) in subsection (3) for the words from the beginning to “OFCOM shall” substitute “ Where the responsible person is a person other than OFCOM, that person shall in giving, modifying or withdrawing the direction ” ,

(e) for subsections (4) to (10) substitute—

(4) Where section 49A applies, the applicable requirements of that section and section 49B must be complied with before the direction, approval or consent is given, modified or withdrawn.

(4A) Where section 49A does not apply because of subsection (2) of that section—

(a) the direction, approval or consent given, or its modification or withdrawal, must be temporary; and

(b) the instrument that gives, modifies or withdraws the direction, approval or consent must state the period for which it is to have effect.

(4B) Where it is proposed to extend or make permanent any such temporary direction, approval or consent, or modification or withdrawal—

(a) sections 49A and 49B(1) do not apply in relation to the proposal; and

(b) subsections (2) to (10) of section 49B apply in relation to the proposal as if for the words from the beginning of subsection (2) to “the person” were substituted “ The responsible person ” .

(4C) Where the responsible person is a person other than OFCOM, that person must refer to OFCOM such of the following questions as are relevant in the case in question—

(a) whether OFCOM is of the opinion mentioned in section 49A(1)(b);

(b) whether OFCOM is of the opinion mentioned in section 49A(2); and

(c) whether the proposal is of EU significance.

(4D) OFCOM must immediately determine any question so referred to them.

Section 25

After section 49 insert—

Domestic consultation for directions, approvals and consents

(49A)

(1) This section applies where the responsible person is proposing to give, modify or withdraw a direction, approval or consent for the purposes of—

(a) an SMP apparatus condition; or

(b) any other condition set under section 45 where what is proposed would, in OFCOM's opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2) But this section does not apply where the proposal is of EU significance and in OFCOM's opinion—

(a) there are exceptional circumstances; and

(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

(3) The responsible person must publish a notification—

(a) stating that there is a proposal to give, modify or withdraw the direction, approval or consent;

(b) identifying the responsible person;

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

(d) setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;

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

(f) specifying the period within which representations may be made about the proposal to the responsible person.

(4) That period must be one ending not less than one month after the day of the publication of the notification.

(5) But where the responsible person is satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period that person considers reasonable in those circumstances.

(6) The responsible person must—

(a) consider every representation about the proposal made to that person during the period specified in the notification; and

(b) have regard to every international obligation of the United Kingdom (if any) which has been notified to OFCOM for the purposes of this paragraph by the Secretary of State.

(7) Where the proposal is not of EU significance, the responsible person may then give effect to the proposal, with any modifications that appear to that person to be appropriate.

(8) The publication of a notification under this section must be in such manner as appears to the responsible person to be appropriate for bringing the contents of the notification to the attention of such persons as that person considers appropriate.

EU consultation for directions, approvals and consents

(49B)

(1) This section applies where, after complying with section 49A(6) in relation to a proposal of EU significance, the responsible person wishes to proceed with it.

(2) After the responsible person has made any modifications of the proposal that appear to the person to be appropriate, the person must send a copy of the proposal, and of a statement setting out the reasons for it, to—

(a) the European Commission;

(b) BEREC; and

(c) the regulatory authorities in every other member State.

(3) If at the end of the period of one month referred to in Article 7(3) of the Framework Directive no notification has been given to the responsible person by the Commission under Article 7a(1) of that Directive, the responsible person may give effect to the proposal, with any amendments that appear to the responsible person to be appropriate.

(4) Before giving effect to the proposal under subsection (3), the responsible person must consider any comments made by—

(a) the Commission;

(b) BEREC; and

(c) any regulatory authority in any other member State.

(5) Subsections (6) to (10) apply where such a notification is given by the Commission to the responsible person during that period.

(6) During the period of 3 months beginning with the notification, the responsible person must co-operate with the Commission and BEREC to identify the most appropriate and effective measure.

(7) The responsible person may give effect to the proposal, with any modifications that appear to that person to be appropriate, within one month (or such longer period as may be allowed under paragraph (6) of Article 7a of the Framework Directive) of the Commission—

(a) issuing a recommendation to amend or withdraw the proposal in accordance with paragraph (5)(a) of that Article; or

(b) taking a decision to lift its reservations in accordance with paragraph (5)(b) of that Article.

(8) In a case in which the responsible person is a person other than OFCOM and the Commission has recommended that the proposal be amended or withdrawn, the responsible person may give effect to the proposal only with the agreement of OFCOM.

(9) In a case in which the responsible person gives effect to the proposal despite a recommendation of the Commission to amend or withdraw it, the responsible person must send to the Commission a copy of the responsible person's reasoned justification for the decision.

(10) If at the end of the period of one month referred to in paragraph (5) of Article 7a of the Framework Directive the Commission has neither issued a recommendation nor lifted its reservations in accordance with that paragraph, the responsible person may give effect to the proposal, with any modifications that appear to that person to be appropriate.

Delivery of copies of notifications etc. in respect of directions, approvals and consents

(49C)

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

(a) a copy of every notification published under section 49A(3);

(b) a copy of every direction, approval or consent given for the purposes of a condition set under section 45; and

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

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

(a) a copy of every direction, approval or consent given for the purposes of a universal service condition, an access-related condition falling within section 73(2) or an SMP services condition; and

(b) a copy of every instrument modifying or withdrawing such a direction, approval or consent.

(3) The responsible person must send to BEREC—

(a) a copy of every direction, approval or consent given for the purposes of a condition set under section 45 where the proposal to give the direction, approval or consent was a proposal of EU significance;

(b) a copy of every instrument modifying or withdrawing a direction, approval or consent given for the purposes of a condition set under section 45 where the proposal to modify or withdraw the direction, approval or consent was a proposal of EU significance.

(4) In a case in which the responsible person is a person other than OFCOM, the responsible person must send to OFCOM—

(a) a copy of every notification published under section 49A(3);

(b) a copy of every direction, approval or consent given for the purposes of a condition set under section 45;

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

(d) a copy of every proposal and statement to which section 49B(2) applies;

(e) a copy of any comments about such a proposal made by the Commission, BEREC or any regulatory authority in any other member State;

(f) a copy of every notification given to the responsible person by the Commission under Article 7a(1) of the Framework Directive;

(g) a copy of every recommendation made in respect of the proposal by the Commission under Article 7a(5)(a) of the Framework Directive.

(5) Where because of subsection (2) of section 49A, that section did not apply in relation to a proposal to give a direction, approval or consent for the purposes of a condition, or to modify or withdraw such a direction, approval or consent, the responsible person must send a copy of a statement setting out the reasons for the proposal and for the urgent need to act to—

(a) the Commission;

(b) BEREC; and

(c) the regulatory authorities in every other member State.

(6) In a case in which the responsible person is a person other than OFCOM, references to OFCOM in section 395(4), (5) and (6A) are to be read as references to the responsible person in relation to copies of directions, approvals, consents, instruments and statements to which subsections (2), (3) and (5) of this section apply.

Section 26

Omit section 50.

Section 27

In section 51 (general conditions)—

(a) in subsection (1)(e) omit “or regulating”,

(b) in subsection (2)—

(i) at the end of paragraph (a) omit “and”, and

(ii) after paragraph (b) insert—

(c) specify requirements in relation to the provision of services to disabled end-users;

(d) require the provision, free of charge, of specified information, or information of a specified kind, to end-users;

(e) in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, impose minimum requirements in relation to the quality of public electronic communications networks;

(f) require a communications provider, in specified circumstances, to block access to telephone numbers or services in order to prevent fraud or misuse, and enable them to withhold fees payable to another communications provider in those circumstances;

(g) impose a limit on the duration of a contract between an end-user and a communications provider; and

(h) ensure that conditions and procedures for the termination of a contract do not act as a disincentive to an end-user changing communications provider.

(c) after subsection (2) insert—

(2A) Where OFCOM propose to set a general condition of a kind specified in subsection (2)(e), they must—

(a) notify the European Commission and BEREC, and

(b) take due account of comments and recommendations made by the Commission.

(d) in subsection (4)(b) for “92” substitute “ 91 ” .

Section 28

In section 52 (customer interests)—

(a) in subsection (2)(a) after “customers” insert “ , where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service ” ,

(b) in subsection (2)(b) after “customers” insert “ , where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service ” ,

(c) after subsection (2)(c) insert—

(ca) the payment of compensation to a person in respect of delay in porting a number to another public communications provider, or abuse of the process for porting a number;

(d) in subsection (3)(a), after “transparent” insert “ , non-discriminatory ” .

Section 29

In section 54(2)(b), after “transparent” insert “ , non-discriminatory ” .

Section 30

In section 56(1) (National Telephone Numbering Plan), after paragraph (b) omit “and” and insert—

(ba) such requirements as they consider appropriate, for the purpose of protecting consumers, in relation to the tariff principles and maximum prices applicable to numbers so adopted or available for allocation; and

Section 31

After section 56 insert—

Conditions for limitations on allocation of telephone numbers

(56A)

(1) When OFCOM allocate telephone numbers in accordance with the National Telephone Numbering Plan, they must specify whether an allocation may be transferred from one person to another, and may set out the conditions under which the allocation may be transferred.

(2) If OFCOM allocate telephone numbers for a limited period of time, the limitation must be objectively justifiable in relation to the services to which it relates, taking account of the need to allow for an appropriate period of investment amortisation.

Section 32

In section 58(1) (conditions about allocation and adoption of numbers), after paragraph (a) insert—

(aa) impose tariff principles and maximum prices for the purpose of protecting consumers in relation to the provision of an electronic communications service by means of telephone numbers adopted or available for use;

Section 33

In section 61 (withdrawal of telephone number allocations)—

(a) in subsection (3)(a) for “serious and repeated” substitute “ serious or repeated ” , and

(b) in subsection (8)—

(i) for paragraphs (a) and (b) substitute—

(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; and

(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 numbering conditions;

(ii) in the words following paragraph (b) for “notifications” substitute “ confirmation decisions ” .

Section 34

In section 64(4)(a) (must-carry obligations), after “listed service” insert “ (including, but not limited to, a service enabling access for disabled end-users) ” .

Section 35

In section 65 (universal service conditions) after subsection (4) insert—

(5) Before making or varying the universal service order, the Secretary of State must take due account of the desirability of not favouring—

(a) one form of electronic communications network, electronic communications service or associated facility, or

(b) one means of providing or making available such a network, service or facility,

over another.

Section 36

In section 67 (subject matter of universal service conditions), after subsection (1) insert—

(1A) OFCOM may also set universal service conditions which apply to a designated universal service provider who proposes to make a disposal to another person of a substantial part or all of the designated universal service provider's local access network assets.

(1B) But subsection (1A) does not apply where the disposal is made by a company to a connected company (within the meaning given by section 1122(2) of the Corporation Tax Act 2010).

Section 37

In section 68(6) (tariffs), after “providers” insert “ or, where there is no designated universal service provider, by other persons, ” .

Section 38

In section 73 (permitted subject-matter of access-related conditions)—

(a) in subsection (2)—

(i) in paragraph (a) omit the words from “on the part of” to the end,

(ii) in paragraph (b) omit “between them”, and

(iii) after paragraph (b) omit “and” and insert—

(ba) efficient investment and innovation; and

(b) in subsection (3) omit “, in cases where there are no viable alternative arrangements that may be made,”,

(c) after that subsection insert—

(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.

(d) omit subsection (4).

Section 39

In section 74 (specific types of access-related conditions), after subsection (1) insert—

(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.

Section 40

In section 75 (conditional access systems etc), omit subsection (1).

Section 41

After section 76 insert—

Information about electronic communications apparatus available for shared use

(76A)

(1) OFCOM may make available to such persons as they consider appropriate information about electronic communications apparatus that in OFCOM's opinion is suitable for shared use.

(2) OFCOM may impose such restrictions as they consider appropriate on the use and further disclosure of information made available under this section.

Section 42

In section 80 (proposals for identifying markets and for market power determinations)—

(a) for subsections (1) to (6) substitute—

(1) Where section 80A applies, OFCOM must comply with the applicable requirements of that section and section 80B 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) sections 80A and 80B(1) do not apply in relation to the proposal; and

(b) subsections (2) to (8) of section 80B apply in relation to the proposal as if the words from the beginning of subsection (2) to “appropriate” were omitted.

(b) in subsection (7) for the words from “give effect” to the end substitute “ identify a market or make a market power determination is subject to section 83 ” .

Section 43

After section 80 insert—

Domestic consultation for market identifications and market power determinations

(80A)

(1) This section applies where—

(a) OFCOM propose—

(i) to identify a market for the purposes of making a market power determination; or

(ii) to make a market power determination; and

(b) (in the case of a services market) the proposed identification or determination is in OFCOM's opinion likely to result in the setting, modification or revocation of SMP services conditions that will have a significant impact on the market.

(2) But this section does not apply where the proposal is of EU significance and in OFCOM's opinion—

(a) there are exceptional circumstances; and

(b) there is an urgent need to act in order to safeguard competition and to protect the interests of consumers.

(3) OFCOM must publish a notification of what they are proposing to do.

(4) Notifications for the purposes of subsection (3)—

(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 power determination in relation to that market; or

(c) may be contained in a single notification under section 48A(3) 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 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 proposing to make that determination.

(5) 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;

(b) set out the effect of the proposal;

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

(d) specify the period within which representations may be made to OFCOM about their proposal.

(6) That period must be a period of not less than one month after the day of the publication of the notification.

(7) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM considers reasonable in those circumstances.

(8) 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.

(9) OFCOM must—

(a) consider every representation about the proposal made to them during the period specified in the notification; and

(b) have 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.

(10) Where the proposal is not of EU significance, OFCOM may then give effect to it, with any modifications that appear to OFCOM to be appropriate.

EU consultation for market identifications and market power determinations

(80B)

(1) This section applies where, after complying with section 80A(9) in relation to a proposal of EU significance, OFCOM wish to proceed with the proposal.

(2) After making any modifications of the proposal that appear to OFCOM to be appropriate, OFCOM must send a copy of the proposal, and of a statement setting out the reasons for it, to—

(a) the European Commission;

(b) BEREC; and

(c) the regulatory authorities in every other member State.

(3) If at the end of the period of one month referred to in paragraph (3) of Article 7 of the Framework Directive no indication has been given to OFCOM by the Commission under paragraph (4) of that Article, OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate.

(4) Before giving effect to the proposal under subsection (3), OFCOM must consider any comments made by—

(a) the Commission;

(b) BEREC; and

(c) any regulatory authority in any other member State.

(5) Subsections (6) to (8) apply where such an indication is given by the Commission to OFCOM during that period.

(6) If under Article 7(5)(a) of the Framework Directive the Commission requires OFCOM to withdraw the proposal, OFCOM must amend or withdraw the proposal within 6 months of the date of the Commission's decision.

(7) Where the proposal is amended under subsection (6), section 80 applies in relation to the amended proposal as if it were a new proposal.

(8) OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate—

(a) if the Commission takes a decision to lift its reservations in accordance with paragraph (5)(b) of Article 7 of the Framework Directive; or

(b) if at the end of the period of 2 months referred to in paragraph (4) of that Article the Commission has neither required OFCOM to withdraw the proposal under paragraph (5)(a) nor lifted its reservations under paragraph (5)(b).

Section 44

For section 81 substitute—

Delivery of copies of notifications under sections 79 and 80A

(81)

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

(2) OFCOM must send to the European Commission a copy of every notification published under section 79(4) in relation to a services market.

(3) OFCOM must send to BEREC a copy of every notification published under section 79(4) where the proposal to identify the market or make a market power determination was a proposal of EU significance.

(4) Where a notification published under section 79(4) relates to a proposal to which section 80A did not apply because of subsection (2) of that section, OFCOM must send a copy of a statement setting out the reasons for the proposal and for the urgent need to act to—

(a) the Commission;

(b) BEREC; and

(c) the regulatory authorities in every other member State.

Section 45

Omit section 82.