TELECOMMUNICATIONS Citation and commencement 1 These Regulations may be cited as the Telecommunications (Open Network Provision and Leased Lines) Regulations 1997 and shall come into force on 31st December 1997. Interpretation 2 1 In these Regulations— “the 1984 Act ” means the Telecommunications Act 1984 ; “ BT ” means British Telecommunications plc; “the BT licence” means the licence granted by the Secretary of State under section 7 of the 1984 Act to British Telecommunications on 22nd June 1984 to run the telecommunication systems referred to in Annex A thereof, in relation to which BT became the licensee as the nominated successor company on the transfer date ; “ the Commission ” means the Commission of the European Communities; “essential requirements” has the meaning given by Article 2 of the ONP Framework Directive ; “ Hull ” means Kingston upon Hull City Council and Kingston Communications (Hull) PLC ; “the Hull licence ” means the licences granted by the Secretary of State under section 7 of the 1984 Act to Hull on 30th November 1987 to run the telecommunication systems referred to in Annex A thereof; “the Leased Lines Directive ” means Council Directive 92/44/ EEC on the application of open network provision to leased lines , as amended by European Parliament and Council Directive 97/51/ EC for the purpose of adaptation to a competitive environment in telecommunications ; “the Leased Lines Directive Conditions” means the conditions set out in Schedule 1 to these Regulations; “ Mercury ” means Mercury Communications Limited; “the Mercury licence ” means the licence granted by the Secretary of State under section 7 of the 1984 Act to Mercury on 5th November 1984 to run the telecommunication systems referred to in Annex A thereof; “network termination point” means the physical point at which a user is provided with access to a public telecommunications network; “the ONP Committee ” means the committee referred to in Articles 9 and 10 of the ONP Framework Directive; “the ONP Framework Directive” means Council Directive 90/387/EEC on the establishment of the internal market for telecommunications services through the implementation of open network provision as amended by European Parliament and Council Directive 97/51/EC for the purpose of adaptation to a competitive environment in telecommunications; “the Principal Regulations ” means the Telecommunications (Leased Lines) Regulations 1993 ; “private circuit” means a telecommunications facility which provides for transparent transmission capacity between network termination points where both or all such points are situated within the European Economic Area and which does not include on-demand switching (that is to say, switching functions which the user can control as part of the private circuit provision); “public telecommunications network” means a telecommunications network used, in whole or in part, for the provision of publicly available telecommunication services; “Relevant Licences” means licences granted under section 7 of the 1984 Act to which section 8 of that Act applies; “relevant private circuit market” means any private circuit market which the Director considers, based on the type or types of private circuit offered in a particular geographical area which may cover the whole or part of the territory of the United Kingdom, to be such a market for the purpose of making a determination under regulations 7 or 8 of these Regulations; “technical specifications”, “standards” and “terminal equipment” have the meaning given by Article 1 of Council Directive 91/263/EEC ; “telecommunications network” means transmission systems and, where applicable, switching equipment and other resources which permit the conveyance of signals between defined termination points by wire, radio, optical or other electromagnetic means; and “users” means, except in regulation 5 of these Regulations, individuals, including consumers, or organisations using or requesting publicly available telecommunication services. 2 References in these Regulations to an organisation having significant market power are references to a holder of a Relevant Licence which the Director has determined in accordance with regulation 8 of these Regulations to be an organisation having such power and references in these Regulations to an organisation not having significant market power are references to a holder of a Relevant Licence which the Director has determined in accordance with that regulation to be an organisation not having such power. 3 References in these Regulations to the Relevant Licences are references to such licences as modified from time to time in accordance with sections 12 and 15 of the 1984 Act and regulations made under section 2(2) of the European Communities Act 1972. 4 Save as provided in paragraph (1) of this regulation, any word or expression used in these Regulations shall, unless the context otherwise requires, have the same meaning as it has in the 1984 Act. Technical standards and specifications 3 1 The Director shall encourage the use for the provision of technical interfaces and network functions of the standards and specifications to which, in accordance with Article 5(1) of the ONP Framework Directive, reference is made in the Official Journal of the European Communities. 2 As long as such standards or specifications are not adopted, the Director shall encourage the use of: a standards or specifications adopted by the European Telecommunications Standards Institute or the joint European standards institution known as CEN / Cenelec or other European standardisation bodies; b in the absence of such standards or specifications, international standards or recommendations adopted by the International Telecommunication Union, the International Organisation for Standardisation or the International Electrotechnical Committee; or c in the absence of such standards or specifications, any standards or specifications determined by the Director. Purpose and effect 4 1 Schedule 2 to these Regulations shall have effect for the purposes of providing for the presentation of the information required to be published in accordance with regulation 9(1) of these Regulations and Condition LLD3 of the Leased Lines Directive Conditions. 2 For the purposes of the 1984 Act, the modifications made by regulation 5 of these Regulations shall have effect as if they were made under section 12 of that Act by the Director. Modification of the Relevant Licences 5 1 Each of the Relevant Licences is hereby modified upon the coming into force of these Regulations by the insertion of the Leased Lines Directive Conditions as Part 6 of Schedule 1 to that licence. 2 Each of the BT licence, the Hull licence and the Mercury licence is hereby modified upon the coming into force of these Regulations by the deletion of all conditions or parts of conditions inserted or substituted by the Principal Regulations other than— a in the BT licence— i the definition of “users” inserted in paragraph 1 of Part 1 of Schedule 1; and ii the insertions made in paragraph 16.1 and paragraph 16.3 of condition 16; b in the Hull licence— i the definitions of “Telephone” and “users” inserted in paragraph 1 of Part 1 of Schedule 1; and ii the insertions made in paragraph 15.1 and paragraph 15.4 of condition 15; and c in the Mercury licence the definition of “users” inserted in paragraph 1 of Part 1 of Schedule 1. 3 The Hull licence is hereby further modified upon the coming into force of these Regulations by the insertion after the figure “40” in the headpiece of paragraph 54.13 of condition 54 of the words “and 41”. Functions of the Director and the Secretary of State 6 The Secretary of State and the Director shall exercise their powers and carry out their functions under sections 7 and 12 to 15 inclusive of the 1984 Act, these Regulations and the Leased Lines Directive Conditions so as to ensure— a that, subject to paragraph (d) of this regulation and to regulation 7 of these Regulations, at every point in the United Kingdom in respect of every relevant private circuit market the Leased Lines Directive Conditions apply to at least one holder of a Relevant Licence; b that the Leased Lines Directive Conditions are not applied in respect of a relevant private circuit market to an organisation not having significant market power in that market unless there is no organisation having significant market power in that market; c that the minimum set of private circuits with harmonised technical characteristics specified in Schedule 3 to these Regulations is provided throughout the United Kingdom; and d that Condition LLD9 of the Leased Lines Directive Conditions (tariffing principles and cost accounting) does not apply where no holder of a Relevant Licence is an organisation having significant market power in respect of a specific private circuit offering in a specific geographical area. Application of licence conditions in respect of tariffing principles and cost accounting 7 The Director may determine that Condition LLD9 of the Leased Lines Directive Conditions shall not apply in a specific geographical area where the Director is satisfied that there is effective competition in the relevant private circuit market as evidenced by tariffs that already comply with those requirements. Functions of the Director in relation to the determination of significant market power 8 1 For the purposes set out in regulation 6 of these Regulations the Director shall for each relevant private circuit market immediately upon the coming into force of these Regulations and thereafter whenever necessary either determine in respect of at least one holder of a Relevant Licence that it is an organisation having significant market power in that market or determine that no holder of a Relevant Licence is an organisation having significant market power in that market. 2 The Director shall whenever necessary determine as respects the holder of a Relevant Licence that it is no longer an organisation having significant market power in a relevant private circuit market. 3 Subject to paragraph (4) of this regulation, in making a determination under paragraphs (1) or (2) of this regulation the Director shall presume that a holder of a Relevant Licence is an organisation having significant market power in a relevant private circuit market when its share of that market is 25 per cent or more. 4 The Director may, after taking into account the matters referred to in paragraph (5) of this regulation: a determine that a holder of a Relevant Licence with a market share of less than 25 per cent of a relevant private circuit market is an organisation having significant market power in that market; or b determine that a holder of a Relevant Licence with a market share of 25 per cent or more of a relevant private circuit market is an organisation not having significant market power in that market. 5 In making a determination under paragraph (4) of this regulation, the Director shall take into account: a the ability of the holder of the Relevant Licence to influence the private circuit market conditions; b its turnover relative to the size of the market; c its access to financial resources; and d its experience in providing products and services in the market. Publication of information by the Director 9 1 The Director shall from time to time publish or ensure that there is published in an appropriate manner so as to provide easy access thereto for users— a information on the licensing and declaration requirements for private circuits in accordance with the presentation given in paragraph D of Schedule 2 to these Regulations; and b information in respect of the conditions for the attachment of terminal equipment to private circuits in accordance with the presentation given in paragraph E of the said Schedule 2. 2 The Director shall from time to time by notice published in the London, Edinburgh and Belfast Gazettes provide references to the publication of the information in respect of private circuits— a which holders of a Relevant Licence publish in accordance with Condition LLD3 of the Leased Lines Directive Conditions; and b which he publishes or ensures is published in accordance with paragraph (1) of this regulation. Control by the Director of measures in respect of infringement of usage conditions 10 The Director shall, in relation to any application for consent to the taking of any measure in accordance with Condition LLD8.1 of the Leased Lines Directive Conditions, adopt a procedure providing for a transparent decision-making process in which due respect is given to the rights of the parties and, without prejudice to the generality of the foregoing, the Director shall— a give both parties the opportunity to state their case; and b notify to the parties in writing the decision and the reasons for it within one week of its adoption. Provision of additional types of private circuits 11 The Director shall encourage provision of the additional types of private circuits specified in Schedule 4 to these Regulations, taking into account market demand and progress with standardisation. Provision of information by the Director and the Secretary of State 12 1 The Director shall notify— a the names of those organisations providing private circuits who are subject to requirements under the Leased Lines Directive Conditions; and b where appropriate, the types of private circuit that each organisation is required to provide in each geographical area to ensure compliance with regulation 6 of these Regulations and any cases where, under regulation 7 of these Regulations, Condition LLD9 of the Leased Lines Directive Conditions is not applied, to the Secretary of State, who shall thereupon submit such information to the Commission. 2 The Director shall— a where he approves a cost accounting system in accordance with Condition LLD9.3 of the Leased Lines Directive Conditions, inform the Secretary of State, who shall thereupon inform the Commission before the system is applied; and b keep available, with an adequate level of detail, information on the cost accounting systems applied by the holders of Relevant Licences to whom Condition LLD9 of the Leased Lines Directive Conditions has been applied and, upon receipt by the Secretary of State of a request from the Commission for this information, he shall submit it to the Secretary of State, who shall thereupon submit it to the Commission. 3 The Director shall— a at least for each calendar year, make available to the Secretary of State statistical reports showing the performance in relation to the supply conditions, in particular (but without prejudice to the generality of the foregoing) with respect to delivery time and repair time, published in accordance with Condition LLD3 of the Leased Lines Directive Conditions by the holders of Relevant Licences to whom that Condition has been applied and the Secretary of State shall send such reports to the Commission no later than five months after the end of the relevant calendar year; and b keep the data on all cases where the access to or use of private circuits has been restricted, as well as details of the measures taken, including the reasons for them and upon receipt by the Secretary of State of a request from the Commission for this data, he shall submit it to the Secretary of State, who shall thereupon submit it to the Commission. Location of network termination points 13 The Director shall define the location of network termination points and for the purposes of these Regulations such points shall represent a boundary of the public telecommunications network. Conciliation procedure 14 1 Where any user complains that he has been or may be injured by the infringement of the provisions of the Leased Lines Directive, particularly, but without prejudice to the generality of the foregoing, with regard to intra-Community private circuits and agreement cannot be reached at a national level, the aggrieved party may invoke the procedure provided for in Articles 12(3) and (4) of the Leased Lines Directive by way of a written notification to the Director and the Commission. 2 Where following such a notification the Director finds that there is a case for further examination, he can refer the matter to the Chairman of the ONP Committee. Revocation 15 1 The Principal Regulations and the Telecommunications (Leased Lines) (Amendment) Regulations 1994 are hereby revoked. 2 Any application for consent made under regulation 7(3) of the Principal Regulations in relation to which the Director has not taken a decision before the coming into force of these Regulations shall have effect as if made under regulation 10 of these Regulations and anything done before the coming into force of these Regulations in relation to the application shall have effect as if done under regulation 10 of these Regulations. Signed by authority of the Secretary of State Barbara Roche, Parliamentary Under Secretary of State for Small Firms, Trade and Industry, Department of Trade and Industry 9th December 1997