Sch 1 para 42
(1) Section 88 (conditions about network access pricing etc.) is amended as follows. (2) In subsection (1)(b)— (i) at the end of sub-paragraph (ii), omit “and”; (ii) at the end of sub-paragraph (iii), insert “ having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and ” ; (iii) after sub-paragraph (iii) insert— (iv) where relevant to the market analysis, promoting the availability and use of new and enhanced networks. (3) After subsection (1) insert— (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. (4) For subsection (2) substitute— (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.