Communications Act 2003, section 45

Power of OFCOM to set conditions

Part 2 Networks, services and the radio spectrum

(1)OFCOM shall have the power to set conditions under this section binding the persons to whom they are applied in accordance with section 46.

(2)A condition set by OFCOM under this section must be either—

(a)a general condition; or

(b)a condition of one of the following descriptions—

(i)a universal service condition;

[F160 (ia)a social tariff condition;F160]

(ii)an access-related condition;

(iii)a privileged supplier condition;

(iv) a significant market power condition (an “SMP condition”).

(3)A general condition is a condition which contains only provisions authorised or required by one or more of sections 51, 52, 57, 58 or 64.

(4)A universal service condition is a condition which contains only provisions authorised or required by section 67.

[F161 (4A)A social tariff condition is a condition which contains only provision authorised by section 72F.F161]

(5)An access-related condition is a condition which contains only provisions authorised by section 73.

(6)A privileged supplier condition is a condition which contains only the provision required by section 77.

(7)An SMP condition is either—

(a)an SMP services condition; or

(b)an SMP apparatus condition.

(8)An SMP services condition is a condition which contains only provisions which—

(a)are authorised or required by one or more of sections 87 to [F16291F162] ; or

(b)in the case of a condition applying to a person falling within section 46(8)(b), correspond to provision authorised or required by one or more of sections 87 to [F16389AF163] .

(9)An SMP apparatus condition is a condition containing only provisions authorised by section 93.

(10)OFCOM’s power to set a condition under this section making provision authorised or required by this Chapter includes each of the following—

(a)power to impose a requirement on the person or persons to whom the condition is applied to comply with such directions with respect to the matters to which the condition relates as may be given from time to time by OFCOM or by another person specified in the condition;

(b)power to impose an obligation with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;

(c)power, for the purposes of provision made by virtue of either of the preceding paragraphs, to confer a discretion exercisable from time to time by OFCOM or by another person specified in the condition or determined in accordance with provision contained in it;

(d)power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and

(e)power to revoke or modify the conditions for the time being in force.

(11)The directions that may be authorised by virtue of subsection (10) do not include directions withdrawing, suspending or restricting a person’s entitlement—

(a)to provide, in whole or in part, any electronic communications network or electronic communications service; or

(b)to make available, in whole or in part, any associated facilities.

Definitions used in section 45 14

OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act
general condition

“general condition” means a condition set as a general condition under section 45;

Defined in s.151(1) · see it in the full Act
universal service condition

“universal service condition” means a condition set as a universal service condition under section 45;

Defined in s.151(1) · see it in the full Act
social tariff condition

“social tariff condition” means a condition set as a social tariff condition under section 45;

Defined in s.151(1) · see it in the full Act
access-related condition

“access-related condition” means a condition set as an access-related condition under section 45;

Defined in s.151(1) · see it in the full Act
privileged supplier condition

“privileged supplier condition” means a condition set as a privileged supplier condition under section 45;

Defined in s.151(1) · see it in the full Act
significant market power

“significant market power” is to be construed in accordance with section 78;

Defined in s.151(1) · see it in the full Act
SMP condition

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act

“SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

Defined in s.151(1) · see it in the full Act
SMP services condition

“SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

Defined in s.151(1) · see it in the full Act
SMP apparatus condition

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.9(16) · see it in the full Act

“SMP condition” means a condition set as an SMP condition under section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

Defined in s.151(1) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act
electronic communications network

(1) In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; ...

(iii)software and stored data ; and

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

Defined in s.32(1) · see it in the full Act

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
electronic communications service

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
associated facility

(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.

Defined in s.32(3) · see it in the full Act

“associated facility” has the meaning given by section 32;

Defined in s.405(1) · see it in the full Act

Cases considering section 45 6

British Telecommunications plc v Office Of Communications (OFCOM) & Ors

[2017] EWCA Civ 330 · 4 May 2017Limits

The court distinguished the prospective power to impose or modify regulatory conditions from Ofcom’s separate power to remedy past breaches of existing conditions. (see paras [23]-[25]) The power to revoke or modify conditions is prospective, consistent with the ex ante regulatory scheme. (see paras [23]-[25]) The provision identifies SMP conditions among the conditions Ofcom may impose under its regulatory powers. (see para [23])

Vodafone Ltd & Ors v British Telecommunications Plc & Anor

[2010] EWCA Civ 391 · 20 April 2010Limits

Provides the statutory power under which Ofcom set the SMP services condition. The judgment interprets the related modification power within the same forward-looking statutory scheme. (see paras [15], [36]–[40]) The power to set conditions binding persons to whom they are applied is directed to binding future behaviour. The court used that forward-looking character to construe the power to modify conditions as prospective only. (see paras [15], [37], [39]–[40]) The power to revoke or modify conditions for the time being in force is subject to the same forward-looking constraints and purposes as the power to set conditions. It does not authorise retrospective alteration of elapsed obligations. (see paras [36]–[42]) Identifies the types of conditions Ofcom may set under section 45. It forms part of the statutory context, but the court’s operative construction concerned the modification power in section 45(10)(e). (see para [15]) Cited only. Cited only. Cited only. Cited only. Cited only. Cited only. Cited only.

Sky UK Limited v The Office of Communications

[2025] EWCA Civ 1118 · 22 August 2025

The court identified this provision as part of the statutory basis limiting Ofcom’s power to impose generally applicable conditions to providers of electronic communications networks or services (see para [12]). The court identified this provision as part of the statutory basis limiting Ofcom’s power to impose generally applicable conditions to providers of electronic communications networks or services (see para [12]).

What each judgment says about section 45 is in the case-law panel in the full Act.

Explanatory note

113.Under the regulatory framework provided for in Part 2, any person to whom OFCOM applies a condition under section 46 must comply with that condition. Section 45 gives OFCOM the power to set two categories of conditions – general conditions and specific conditions, the latter comprising universal service conditions, access-related conditions, privileged supplier conditions or significant market power (SMP) conditions. Subsection (10)(e) provides that the power to set conditions includes the power to revoke or modify conditions.

114.General conditions are conditions of general application and must be set in accordance with sections 51, 52, 57, 58 or 64. The ability to set such conditions implements Article 6(1) of, and partially implements Part A of the Annex to, the Authorisation Directive. It also implements Article 4(1) and 4(3) of the Access Directive.

115.Universal service conditions are conditions authorised or required under section 67 for the purpose of ensuring that certain minimum electronic communications networks and services and associated facilities are available at all times throughout the UK. The ability to set such conditions implements Article 6(2) of the Authorisation Directive and Articles 3 to 7 and 9 to 11 and Part A of Annex I to of the Universal Service Directive.

116.Access-related conditions are conditions authorised under section 73 for the purpose of ensuring adequate network access within communications infrastructure. The ability to set such conditions implements Article 6(2) of the Authorisation Directive and Articles 5(1) and (2) and 6 of the Access Directive.

  • *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.

117.Privileged supplier conditions can be applied where a communications provider enjoys special or exclusive rights in relation to the provision of any non-communications services. They are intended to ensure the separation of the provider’s activities as a communications provider from other aspects of his undertaking, and must comply with section 77. The ability to set such conditions implements Article 13 of the Framework Directive.

118.SMP conditions may be either an SMP services condition authorised or required under sections 87 to 92 or an SMP apparatus condition authorised under section 93. The ability to set SMP services conditions implements Article 6(2) of the Authorisation Directive, Articles 8 to 13 of the Access Directive, Article 16(2) of the Framework Directive and Articles 17 to 19 of the Universal Service Directive. SMP apparatus conditions are out with the scope of the EC Communications Directives because the supply of apparatus is not part of the provision of an electronic communications network or service. The power to set such conditions is therefore additional to the requirements of the Directives.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F160S. 45(2)(b)(ia) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 10(2)
  2. F161S. 45(4A) inserted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 10(3)
  3. F162Word in s. 45(8)(a) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 19(a) (with Sch. 3 para. 2)
  4. F163Word in s. 45(8)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 19(b) (with Sch. 3 para. 2)

Commencement

  1. I71S. 45 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
  2. I72S. 45 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)