Section 79: Market power determinations, Communications Act 2003

Before making a market power determination, OFCOM must—

identify (by reference, in particular, to area and locality) the markets which in their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and

carry out an analysis of the identified markets.

In identifying or analysing a services market for the purposes of this Chapter, OFCOM must conduct a forward-looking assessment of the market, taking into account expected or foreseeable developments that may affect competition in the market.

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In identifying or analysing a services market for the purposes of this Chapter, OFCOM may have regard to EECC materials relating to market identification and analysis.

In determining whether to identify a market for the purpose of considering whether to make a market power determination, OFCOM must consider whether the criteria in subsection (2B) are met; and OFCOM may not identify that market for that purpose unless they consider that the criteria are met.

Those criteria are—

that high and non-transitory structural, legal or regulatory barriers to entry are present;

that there is a market structure which, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry, does not tend towards effective competition within such period as OFCOM determine to be appropriate in relation to the review;

that competition law alone is insufficient adequately to address the identified market failure.

In considering whether to make or revise a market power determination in relation to a services market, OFCOM may have regard to EECC materials relating to market analysis or the determination of what constitutes significant market power.

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The way in which—

a market is to be identified for the purposes of this section, or

a market power determination is to be made,

is by the publication of a notification containing the identification or determination.

Notifications for the purposes of subsection (4)—

may be given separately;

may be contained in a single notification relating to both the identification of a market and the making of a market determination in relation to that market; or

may be contained in a single notification under section 48(1) with respect to the setting or modification of an SMP condition and either—

the making of the market power determination by reference to which OFCOM set or modify that condition; or

the making of that market power determination and the identification of the market in relation to which they make that determination.

The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM's opinion, are likely to be affected by the matters notified.

In this section "EECC materials" means recommendations or guidelines published by the European Commission, and guidelines published by BEREC, under the Framework Directive or the EECC Directive (including those published after IP completion day).

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Section 79: Market power determinations

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