(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)It shall be the duty of OFCOM, in carrying out any of those functions, to act in accordance with the [F15six requirements set out in the following provisions of this sectionF15] .
(3)F16The first ... requirement is a requirement to promote competition—
(a)in relation to the provision of electronic communications networks and electronic communications services;
(b)in relation to the provision and making available of services and facilities that are provided or made available in association with the provision of electronic communications networks or electronic communications services; and
(c)in relation to the supply of directories capable of being used in connection with the use of electronic communications networks or electronic communications services.
F17 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)The [F18secondF18] requirement is a requirement to promote the interests of all [F19members of the public in the United KingdomF19] .
(6)The [F20thirdF20] requirement is a requirement to take account of the desirability of OFCOM’s carrying out their functions in a manner which, so far as practicable, does not favour—
(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.
[F21 (6A)The [F22 thirdF22] 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.F21]
(7)The [F23fourthF23] requirement is a requirement to encourage, to such extent as OFCOM consider appropriate for the purpose mentioned in subsection (8), the provision of network access and service interoperability.
(8)That purpose is the purpose of securing—
(a)F24,F25efficiency and sustainable competition ...; ...
[F26 (aa)efficient investment and innovation; andF26]
(b)the maximum benefit for the persons who are customers of communications providers and of persons who make [F27associated facilitiesF27] available.
(9)The [F28fifthF28] requirement is a requirement to encourage such compliance with the standards mentioned in subsection (10) as is necessary for—
(a)facilitating service interoperability;
[F29 (aa)facilitating end-to-end connectivity;
(ab)facilitating the changing by end-users of their communications provider;
(ac)facilitating the retention by end-users of their telephone numbers after a change of communications provider; andF29]
(b)securing freedom of choice for the customers of communications providers.
(10)Those standards are—
(a)standards or specifications from time to time drawn up and published [F30by the European CommissionF30] in accordance with Article 17 of the Framework Directive[F31 or Article 39 of the EECC DirectiveF31][F32 (whether before or after IP completion day)F32] ;
(b)the standards and specifications from time to time adopted by—
(i)the European Committee for Standardisation;
(ii)the European Committee for Electrotechnical Standardisation; [F33andF33]
(iii)the European Telecommunications Standards Institute; and
(c)the international standards and recommendations from time to time adopted by—
(i)the International Telecommunication Union;
(ii)F34the International Organisation for Standardisation; ...
[F35 (iia)the European Conference of Postal and Telecommunications Administrations; andF35]
(iii)the International Electrotechnical Committee.
[F36 (10A)The [F37 sixthF37] requirement is a requirement to promote connectivity and access to very high capacity networks by members of the public and businesses in the United Kingdom.F36]
(11)Where it appears to OFCOM that any of the [F38six requirements in this sectionF38] conflict with each other, they must secure that the conflict is resolved in the manner they think best in the circumstances.
(12)In this section—
F39 ...
[F40 “end-to-end connectivity” has the meaning given by section 74(3); F40]
“network access” and “service interoperability” each has the same meaning as in Chapter 1 of Part 2.
[F41 “telephone number” has the meaning given by section 56(5). F41]
[F42 (12A) In this Act “very high capacity network” means an electronic communications network which—
(a)consists wholly of optical fibre elements at least up to the distribution point at the serving location; or
(b)is capable of delivering, under usual peak-time conditions, network performance that, in OFCOM’s opinion, is similar, in terms of available downlink and uplink bandwidth, resilience, error-related parameters and latency and its variation, to the network performance of a network falling within paragraph (a).
(12B)For the purposes of subsection (12A)(b), network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point.F42]
[F43 (13) In this section and sections 4A and 5, “the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140/EC of the European Parliament and of the Council. F43]
31.This section creates a duty, which applies only to certain functions of OFCOM. These are their functions under:
Chapter 1 of Part 2;
the enactments relating to the management of the radio spectrum;
*Section 405(1) defines the enactments relating to the management of the radio spectrum as the Wireless Telegraphy Act 1949, the Marine, &c., Broadcasting (Offences) Act 1967, the Wireless Telegraphy Act 1967, Part 6 of the Telecommunications Act 1984, the Wireless Telegraphy Act 1998, Chapter 2 of Part 2 of the Act and the other provisions of the Act so far as relating to any of those enactments.
Chapter 3 of Part 2 relating to network access disputes referred to them under section 185;
sections 24 and 25, so far as they relate to information required for purposes connected with matters in relation to OFCOM functions specified in this section; and
section 26, if carried out for the purpose of making information available to the customers of communications providers, the customers of persons who make associated facilities available and persons who use electronic communications networks, electronic communications services or associated facilities.
32.The duty is a duty to act in accordance with six Community requirements. In the event that there is any conflict between this duty and the section 3 duties, the former, which is required by the EC Communications Directives, is to take precedence.
33.The Community requirements are: (i) to promote competition; (ii) to ensure that OFCOM’s activities contribute to the development of the European internal market; (iii) to promote the interests of all persons who are citizens of the European Union; (iv) to take account of the desirability of carrying our their functions in a manner which, so far as practicable, does not favour one form of network, service or associated facility, or one means of providing or making available such a network, service or facility over another; (v) to encourage the provision of network access and service interoperability; and (vi) to encourage compliance with international standards to the extent necessary to facilitate service interoperability, and to secure a freedom of choice for customers.
*network access is defined in section 151 as meaning (1) interconnection of public electronic communications networks; or (2) any services, facilities or arrangements (other than interconnection) by means of which a communications provider or a person making associated facilities available is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of any network or apparatus comprised in a network, or any service or facility capable of being used to provide a service.
*service interoperability is defined in section 151 as interoperability between different electronic communications services.
34.Requirements (i) to (iv) implement Articles 7(1) & (2) and 8 of Directive 2002/21/EC (the “Framework Directive”). Requirement (v) implements Article 5(1) of Directive 2002/19/EC (“the Access Directive”) and Article 18 of the Framework Directive and requirement (vi) implements Article 17(2) and 18 of the Framework Directive. This section also implements Article 20 (3) of the Framework Directive and Article 7(3) of the Authorisation Directive.