s.45Conditions on significant market power sectoral providers
45
Section 45Part 7 — Significant market power

Conditions on significant market power sectoral providers

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The Office may impose specific conditions on sectoral providers determined to have significant market power in the relevant markets, including obligations relating to —
cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems;
the publication of a reference offer ensuring equivalence of access or interconnection to any of those services or facilities in which the sectoral provider has significant market power at tariffs based on an efficient sectoral provider's costs;
the submission of regulatory accounts or financial statements separating out the key business activities of the sectoral provider;
retail prices;
sharing of infrastructure, facilities and systems used for the provision of ICT services as defined in section 2 of the Information and Communications Technology Authority Act (2019 Revision);
technical compatibility of and access to conditional access systems used in the provision of content;
offering services to the businesses which comprise the sectoral providers and their parent companies on a non-discriminatory, commercial basis;
provision of standard terms of business, which should be published and accessible to customers;
provision of service level guarantees with associated compensation payment to retail customers; and
such other obligations as the Office may consider necessary in pursuance of the electronic communications policy objectives and the sector policy.
Prior to imposing any obligations under subsection (1), the Office —
shall review the market in which the sectoral provider has significant market power;
shall consider the regulatory burden and the benefits to consumers of imposing any such obligation on a sectoral provider;
shall ensure that any cost recovery mechanism or pricing methodology that is mandated serves to promote efficiency and sustainable competition and maximise consumer benefits;
shall take into account the investment made by the relevant sectoral provider and allow the sectoral provider a reasonable rate of return on capital efficiently employed, taking into account the risks involved;
shall ensure that, where implementation of a cost accounting system is mandated in order to support price controls, a determination of the cost accounting system is made publicly available, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs; and
may also take account of prices available in comparable markets.
Significant market power sectoral providers shall —
not unduly discriminate against particular persons or a particular description of persons in relation to utility services offered by them;
provide technical specifications, or other relevant information about any interconnection, essential facilities or other mandated wholesale services on a reasonable and timely basis, when the information is required by another sectoral provider to provide its licensable services and when the information is not readily available from other sources; and
not adopt technical specifications for a network that prevents interconnection or interoperability with a network or facility of a competitor.
Nothing done in any manner by a significant market power sectoral provider shall be regarded as undue discrimination if and to the extent that the sectoral provider is required or expressly permitted to do such thing in that manner under this Act or any other Law.
Where a significant market power sectoral provider is made subject to an obligation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs including a reasonable rate of return on capital efficiently employed shall lie with the significant market power sectoral provider concerned.
For the purpose of calculating the cost of efficient services, the Office may direct the significant market power sectoral provider to employ specific cost accounting methods or the Office may use cost accounting methods independent of those used by the relevant sectoral provider.
The Office may require the significant market power sectoral provider to provide full justification for its prices, and may, where appropriate, require prices to be adjusted.
On the date of commencement of this Act, the obligations of a licensee that are set out in regulations pursuant to sectoral legislation or as licence conditions shall apply until such time as the licensee is determined to be a significant market power licensee pursuant to section 44(1).
Significant market power does not apply to a sectoral provider who holds a licence to provide utility services in an exclusive service area.

Defined Terms

significant market powersectoral providerrelevant marketOfficeutility serviceslicensee

Cross References

Referenced By