[OFTEL LETTERHEAD]
Office of Telecommunications
SOUTH HERTFORDSHIRE BROADBAND CABLE FRANCHISE
MODIFICATIONS OF THE CONDITIONS OF THE Licence GRANTED TO JONES CABLE GROUP OF
SOUTH HERTFORDSHIRE LIMITED ON 15 OCTOBER 1990
Whereas the Secretary of State granted to Jones Cable Group of South
Hertfordshire Limited on 15 October 1990 a Licence ("the Licence") under
section 7 of the Telecommunications Act 1984 ("the Act") for the running of the
telecommunication systems specified in Annex A to the License;
Whereas the Director General of Telecommunications ("the Director"), in
accordance with section 12 of the Act, published on 3 September 1992 and on 18
November 1993 notices ("the Notices") stating that he proposed to make the
modifications specified in the Notices and setting out their effect, stating
the reasons why he proposed to make the modifications and specifying that
representations and objections to the proposed modifications could be made no
later than 1 November 1992 and 20 December 1993 respectively;
Whereas the Director has considered pursuant to Section 12 of the Act all the
representations and objections made to him concerning the proposed
modifications;
Whereas copies of the Notices have been sent to the Licensee and the Licensee
has consented to the making of the modifications;
And whereas copies of the Notices have been sent by the Director to the
Secretary of State and the Secretary of State has not directed the Director
not to make any of the modifications;
Now therefore the Director, in exercise of the powers conferred on him by
section 12 of the Act, hereby makes the following modifications of the
Conditions in Schedule 1 to the License.
1. The modifications set out in the attached Annex shall have effect and
shall come into force on the date on which they are made.
2. The Interpretation Act 1978 shall apply to this instrument as though
it were an Act of Parliament.
/s/ Anna Walker
MRS A WALKER
a person authorised in that behalf under
paragraph 8 of Schedule 1 to the Act
Annex
TELECOMMUNICATIONS ACT 1984
Modifications of the Conditions of the Licence granted to Jones Cable Group of
South Hertfordshire Limited on 15 October 1990 to run telecommunication
systems in the area of South Hertfordshire
Condition Subject Page
Installation of the
1 Applicable Cabled Systems...... 2
3 Directory Information.......... 3
8 Interconnection................ 4
8A Equal Access................... 10
8b Essential Interfaces........... 17
10 Retailers/Service Providers.... 21
11 Price Notifications............ 24
15 Voice Telephony................ 25
International Simple Resale
15A Services....................... 27
25 Metering, Billing, etc......... 32
29A Numbering Arrangements......... 36
32A Controlled Services............ 43
Provision of Special
32B Facilities..................... 47
Private Circuits to other
40 PTOs........................... 49
41 Changes in Shareholders........ 52
44 Financial Statements........... 54
45 Agreement Documents............ 55
Exceptions and Limitations
46 on Obligations in Schedule 1... 56
Minor and Consequential
Amendments..................... 57
CONDITION 1
INSTALLATION OF APPLICABLE CABLED SYSTEMS AND PROVISION OF TELECOMMUNICATION
SERVICES
In Condition 1.2(a), as modified by determinations made by the Director on 17
May 1991 and 7 November 1991, after the words
" (i) 1 March 1992 not less than 5,000 premises;"
substitute the following:-
" ii) 31 December 1993 not less than 28,000 premises; and
(iii) 31 December 1994 not less than 60,000 premises;".
In Condition 1 in paragraph 1.2(b), for the words:-
"1 March 1994" substitute:-
"31 December 1995".
In Condition 1.3, for the words "at any time before 1 March 1993" substitute
"at any time before 31 December 1994".
CONDITION 3
DIRECTORY INFORMATION
For Condition 3.2(b) substitute:-
"(b) supply to the operator of that Other System, whether by
providing on-line access to the Licensee's electronic database
referred to in paragraph 3.2(c) or by providing directories of
the kind ref erred to in paragraph 3.1(b) or by providing the
totality of the contents of that database in machine readable
form, directory information about persons to whom the Licensee
provides switched voice telephony services and do so for the
purpose of enabling that operator to provide directory
information about such services provided by means of the
Applicable Cabled Systems and that Other System when connected
together and to route calls, and do so in a form which is
sufficient to meet any reasonable request of that operator for
those purposes having regard in particular to the cost to, and
the reasonable convenience of, the Licensee and that operator
and to the desirability of that operator being able to use
complete and up to date directory information; and
(c) where the operator of that Other System requests the Licensee
pursuant to and in accordance with paragraph 3.2(b) to provide
access including on-line access or including the provision of an
appropriate storage medium containing the data in machine
readable form, to all the names, addresses and telephone
numbers on the electronic database which is used by the
Licensee to provide by means of the Applicable Cabled Systems
directory information services to persons to whom the Licensee
provides switched voice telephony services then the Licensee
shall grant such access on reasonable terms (which may include
recovery of fully allocated costs and a reasonable return on
capital employed) provided that:
(i) the operator of that Other System undertakes to use the
directory information only for the purpose of providing
directory information services or to route calls;
(ii) the Licensee may lawfully provide such information to
the operator of the Other System; and
(iii) the Licensee shall not be required to do anything in
contravention of the Data Protection Act 1984.".
In Condition 3.5 after "3.2" insert "(a)".
CONDITION 8
INTERCONNECTION
For Condition 8.5(a) substitute:-
"(a) that the cost of anything done pursuant to or in connection
with the agreement including fully allocated costs attributable
to the services to be provided and taking into account relevant
overheads and a reasonable rate of return on attributable
assets is apportioned equitably between the Licensee and the
Operator;".
At the end of paragraph 8.5 add:-
"(g) that without prejudice to paragraph 8.5A the Licensee may be
required to carry out any work which the agreement requires it
to carry out within an appropriate period of time having regard
to all the circumstances which would be reasonable for an
efficient telecommunications operator who was not required to
give the particular work priority over work for the Licensee's
customers generally.".
After paragraph 8.5 insert:-
"8.5A where in pursuance of such an application as is referred to in
paragraph 8.5 the Director determines any charge (or the means
of calculating any charge) payable in respect of the
establishment of a connection between the Applicable Cabled
Systems and the system of the Operator he shall do so in
accordance with the following provisions:
1 Any costs incurred in the establishment of such a connection,
including (without limitation) the provision of dedicated capacity at a point
(a 'point of connection') at which the Applicable Cabled Systems and the
Operator's system are connected, but not transmission capacity, shall be
shared between the parties according to the proportions in which each of them
will bill the customers originating calls which are to be conveyed over the
point of connection. The proportions shall be derived from forecasts by each
party of the capacity required to convey those calls for which the respective
parties will bill customers originating them. These costs shall be assessed
on the basis of:
(a) the Licensee's or the Operator's respective fully allocated
costs of the establishment of the connection including a
reasonable contribution to relevant overheads; and
(b) the application to relevant capital employed of a reasonable
rate of return on attributable assets.
2 Any determination of any charge (or the means of calculating the
same) to be payable under paragraph 1 above may include a provision that no
such charge shall be payable where the party imposing the charge fails to
provide the connection within six months (or such longer period as the
Licensee and the Operator may agree) of the date of the request therefor,
provided that this provision shall not apply in any particular case unless it
is reasonable in all the circumstances for it to apply. It shall be deemed not
to be reasonable if:
(a) it was not reasonably practicable for any reason for the first
party to provide the connection in time;
(b) the other party's request for the connection was unreasonable
in quantum having regard to its current and future needs; or
(c) in order to comply with the time period the Licensee would have
had to give priority to making the connection beyond that given
to its own customers generally.
3 The period referred to in paragraph 2 shall be extended by such
period as equates to or, if there is no period that equates, as is reasonably
commensurate with, delays attributable to any default or lack of cooperation
by the Operator, or to force majeure of any kind.
4 Where one party has in pursuance of a provision in the agreement
required the other party to provide a connection and subsequently cancels the
order, it shall reimburse the other party for all costs (assessed on the basis
of that party's fully allocated costs, together with a reasonable rate of
return on attributable assets) incurred by the other party in the provision of
the connection up to the date of cancellation.".
After paragraph 8.8 insert:-
"8.8A.1 This paragraph 8.8A applies where:
(a) an Operator establishes a prima facie case that the Licensee is
unreasonably not performing an obligation which he is required
to perform under an agreement entered into under paragraph 8.1;
(b) the Director considers that:
(i) the obligation ought to be performed in order to achieve
the purposes of paragraph 8.1;
(ii) the Operator is not able satisfactorily to enforce the
agreement so that the obligation is performed within such
time as the Director considers necessary and the balance
of convenience requires the Director to take action
under this paragraph rather than leave it to the Courts;
and
(iii) the Operator has performed all its obligations which are
relevant to the Licensee's obligation that is allegedly
not being performed; and
(c) paragraph 8.8 does not apply.
8.8A.2 Where this paragraph 8.8A applies the Director may require the
Licensee to perform the obligation subject to such conditions as are
reasonable in the circumstances having regard, in particular, to the permitted
terms and conditions which apply and to anything which the Operator may
reasonably be expected to do in order to mitigate the effects of the
Licensee's failure to perform its obligation.
8.8A.3 Before making a requirement under paragraph 8.8A.2 the Director shall
notify the Licensee of the prima facie case established by the Operator, his
conclusions thereon, and on the matters referred to in paragraph 8.8A.1(b) and
the direction he proposes to make. The Licensee shall be afforded adequate
time in which to make representations.
8.8B.1 Notwithstanding, and without prejudice to, any of the foregoing
provisions of this Condition, if the Director considers that there is likely
to be a category comprising a sufficient number of Operators seeking
determinations under paragraph 8.5 for whom standard terms and conditions
would be appropriate, he may require the Licensee to publish standard
provisions (including, without limitation, charges or the method for
calculating them) which set out the terms on which the Licensee will enter
into an agreement under paragraph 8.1 with Operators of that particular
category.
8.8B.2 If on an application by an Operator in that category the Director is
satisfied that the Operator has established a prima facie case that any such
standard term or condition proposed by the Licensee is unreasonable and that
the Licensee has acted unreasonably in relation to negotiations on that term
or condition, the Director may, if he considers it necessary to do so, either
determine that the Licensee shall modify that standard provision in such a
way as to make the term reasonable in the agreement with the Operator, or
modify that standard provision in such a way in the provisions published under
paragraph 8.8B.1.
In applying this paragraph 8.8B.2:
(a) any such standard provision shall be confined to the subject
matter of the term or condition proposed by the Licensee
except that, where the Director considers that a term or
condition is essential in relation to subject matter not
covered by any term or condition proposed by the Licensee, he
may determine a term or condition to cover the subject matter;
(b) the Licensee shall not be deemed to have acted unreasonably
merely by virtue of having proposed the term or condition in
question; and
(c) no determination may be made in relation to any provision which
would be subject to the Unfair Contract Terms Act 1977.
8.8B.3 Before making a determination under paragraph 8.8B.2 the Director
shall notify to the Licensee and the Operator the grounds of the Operator's
application and his conclusions thereon and the modification he proposes to
make or require the Licensee to make, and shall afford the Licensee and the
Operator adequate time, being not less than 28 days, in which to make
representations.
8.8B.4 Where an Operator makes an application to the Director under
paragraph 8.5, the Director may treat the application as an application under
paragraph 8.8B.2 above and act accordingly.
8.8B.5 For the avoidance of doubt the provisions of paragraphs 8.5 and 8.5A
shall apply in respect of any determination made under this paragraph as they
apply in relation to a determination made under paragraph 8.5.".
CONDITION 8A
EQUAL ACCESS
After Condition 8 insert:-
"Condition 8A
EQUAL ACCESS
8A.1 This Condition applies in respect of any Long Line Public
Telecommunications Operator (the term 'Operator' referring in this Condition
8A to such an Operator) with whom the Licensee has entered into an agreement
as required by Condition 8.1 and where the Director has made a direction under
paragraph 8A.2.
8A.2 (a) At any time after the date on which the Licensee first provides
25 per cent of the available Exchange Lines either in any local
call charge area of British Telecommunications plc or in the
Licensed Area the Director may, subject to the provisions of
paragraph 8A.3, make a direction that whenever an Operator so
requests after a date specified in the direction the Licensee
shall make Equal Access available in respect of that Operator,
in an area or areas in relation to which the condition set out
above is met, on the basis set out in this Condition 8A;
(b) The direction shall contain a functional specification of
exchange software for the provision of Equal Access. The
specification shall be that submitted to the Director by the
Licensee (following receipt of a request from the Director) or,
if the Director, having carried out such consultation as
appears to him appropriate, considers that specification to be
unsatisfactory, in a form determined by the Director. Before
making such a determination the Director shall notify the
Licensee as to why the Licensee's specification is
unsatisfactory and give the Licensee the opportunity to make
representations.
8A.3 The Director shall not make a direction under paragraph 8A.2 unless:
(a) he has carried out a cost-benefit analysis comparing the likely
benefits to telecommunications customers to be gained from the
introduction of Equal Access with all costs likely to be
incurred, including opportunity costs, which analysis indicates
that the gains outweigh the likely costs; and
(b) in his opinion sufficient arrangements in relation to the
pricing of telecommunication services provided by the Licensee
have been made in relation to the following matters to achieve
fair competition:
(i) the extent to which the Licensee has been able to balance
its charges to align them more appropriately with costs;
(ii) the extent to which regulatory controls, whether imposed
by this Licence or otherwise and including voluntary
commitments, affect the balance referred to in paragraph
8A.3(b)(i);
(iii) the amount and structure of charges payable to the
Licensee by virtue of agreements with Operators entered
into by the Licensee under Condition 8; and
(iv) the extent to which charges are payable to the Licensee
by virtue of Condition 20.
8A.4 When carrying out the cost-benefit analysis referred to in paragraph
8A.3(a), the Director shall consult the Licensee and such other persons as
appear to him appropriate, affording them a reasonable period, being not less
than 28 days, in which to make representations, and he shall take their
representations into account when reaching his conclusions. On conclusion of
the analysis he shall make it available to the Licensee and such other
persons.
8A.5 (a) In this Condition 'Equal Access' means a facility provided to
an Operator whereby he can arrange with a customer of the
Licensee that, following a request by that customer to the
Licensee, the customer may choose over which public
telecommunications system, being a system run by a Long Line
Public Telecommunications Operator, to route National and
International calls made by means of an Exchange Line provided
to him by the Licensee. The choice shall be exercisable in
either of the following ways, at the option of the customer:
(i) by preselection, that is to say that the customer may, by
registering a preference with the Licensee, name a
particular such Operator for the conveyance of all such
calls. The Licensee may offer to provide a facility to
override the preference in the case of any particular
call; or
(ii) on a call-by-call basis, that is to say that the
customer must, for each call, exercise his choice by
dialling a short initial code designated for the
particular such Operator (or the Licensee) chosen by the
customer for the call in question. The respective
initial codes for the Licensee and for all Operators
shall be of equal length.
'National' and 'International' calls shall be defined by
reference to the Licensee's charges and other terms and
conditions published in accordance with Condition 11.
(b) The Licensee shall not require the customer to acquire any
special equipment or to pay any fee as a prerequisite to his
being able to obtain the Equal Access facility. For the
avoidance of doubt the Licensee may impose a charge if a
customer who has registered a preference changes that
preference in any way.
8A.6 Where a Long Line Public Telecommunications Operator (within the
meaning of that term in Condition 8) requires the Licensee to provide Equal
Access, and specifies exchanges forming part of the Applicable Cabled Systems
at which it is to be provided, and the Licensee has not, after a reasonable
period, entered into an agreement with that Operator for the provision of
Equal Access, the Director may, on the application of either the Licensee or
the Operator, determine the terms and conditions of the agreement, being
terms and conditions necessary for the provision of Equal Access, or such
terms and conditions which the Licensee and the Operator have failed to
agree.
8A.7 Before making a determination under paragraph 8A.6, the Director shall:
(a) carry out in relation to the operator concerned an
analysis taking into account the results of the analysis
referred to in paragraph 8A.3(a) comparing the benefits likely
to be gained with all the costs incurred and likely to be
incurred, including opportunity costs. The provisions of
paragraph 8A.4 shall apply to the analysis. The purpose shall
be to decide whether, in relation to that Operator's request
for Equal Access, the costs will outweigh the benefits; and
(i) if the Director concludes that the costs will outweigh
the benefits, his determination shall secure that no part
of those costs shall be borne by the Licensee;
(ii) if the Director concludes that the benefits will outweigh
the costs, his determination shall secure that the costs
are apportioned as provided in paragraph 8A.10; and
(b) notify the Licensee and that Operator in respect of which terms
and conditions he proposes to make a determination, and why,
and shall afford the Licensee and that Operator adequate time,
being not less than 28 days, in which to make representations.
8A.8 In making a determination under paragraph 8A.6, the Director shall:
(a) subject to paragraph 8A.10, secure that the principles set out
in Condition 8.5(a) to (g), so far as applicable, are achieved;
and
(b) secure that the Licensee's obligation in relation to the
provision of Equal Access is limited to:
(i) the acceptance of registrations of such preference as is
referred to in sub-paragraph 8A.5(a)(i);
(ii) the delivering of calls to the Operator's system in
accordance with the choice of the Licensee's customers as
described in paragraph 8A.5; and
(iii) the provision of facilities contained in the
specification referred to in paragraph 8A.2(b).
8A.9 (a) Where the Director makes a determination under paragraph 8A.6
he shall secure that any development of the Applicable Cabled
Systems made necessary thereby is consistent with the
Licensee's then planned programme of network modernisation
and development and in particular that the Licensee is not
required to introduce Equal Access at any exchange if to do so
would involve either:
(i) modernising the exchange in a case where, but for the
proposed introduction of Equal Access, the exchange would
not have been modernised at that time; or
(ii) a significant risk of impairment to the quality of
telecommunication services provided by means of the
Applicable Cabled Systems.
(b) Subject to paragraph 8A.9(a), where the Director makes a
determination under paragraph 8A.6 the following shall apply in
relation to the preparation of exchanges for Equal Access.
(i) The determination may require the Licensee to introduce
Equal Access within a reasonable period. At a digital
exchange to which the determination relates which does
not require conversion for the introduction of Equal
Access, a reasonable period for adapting the exchange to
provide Equal Access shall be six months. In relation
to such an exchange which does require conversion, or any
other exchange of an exchange type which is capable of
conversion to provide Equal Access, a reasonable period
for conversion and adaptation shall, subject to paragraph
8A.9(a), be eighteen months. Different periods may be
specified for different exchanges.
(ii) Where at the date of the determination an exchange to
which it relates is not digital, and is of an exchange
type which is not capable of conversion to provide Equal
Access, the Licensee shall ensure (subject to paragraph
8A.9(a)) that, when modernisation to digital is planned,
the specification therefor provides for Equal Access.
8A.10 Where, in an analysis carried out under paragraph 8A.7(a), the
Director concludes that the benefits will outweigh the costs, any
determination under paragraph 8A.6 shall secure that the Licensee's costs of
introducing Equal Access are apportioned according to the following
provisions.
(a) The following costs of introducing Equal Access, among any
others which the Director may consider relevant, shall be
included among those brought into account:
(i) costs incurred by the Licensee which are not related to
any particular locality consisting of initial development
and set-up costs including, without limitation, the costs
of hardware design and production, the costs of
software development and the costs of planning and
training;
(ii) costs incurred by the Licensee in relation to a
particular locality where an Operator has requested the
introduction of Equal Access, consisting of initial
development and set-up costs in relation to that locality
including, without limitation, the costs of
installation of hardware and software and the costs of
distribution of necessary documentation and instructions
and of training;
(iii) the incremental costs of providing at any particular
locality Equal Access to any further Operator after the
first Operator at that locality;
(iv) the costs per customer of registering preferences and
of implementing arrangements for the initial code
referred to in paragraph 8A.5(a)(ii); and
(v) the costs per customer of changing registered preferences
or removing, in relation to any particular Exchange Line,
arrangements for the initial code.
(b) Subject to paragraph 8A.10(c) and (d):
(i) the costs referred to in paragraph 8A.10(a)(i) shall be
apportioned between the Licensee and Operators who make
requirements under paragraph 8A.6. The costs shall
initially be apportioned between the Licensee and the
first such Operator. Procedures will be established for
subsequent Operators to make a proportionate contribution
to the costs in such manner as the Director shall
determine from time to time;
(ii) the costs referred to in paragraph 8A.10(a)(ii) shall be
apportioned between the Licensee and Operators who make
requirements under paragraph 8A.6 in relation to the
particular locality. The apportionment rules set out in
paragraph 8A.10(b)(i) shall apply mutatis mutandis;
(iii) where the addition of an Operator at a locality reduces
the contribution to the costs of Equal Access at that
locality of the Licensee and the other Operators, the
procedures in paragraph 8A.10(b)(i) shall apply mutatis
mutandis to the costs referred to in paragraph
8A.10(a)(iii). In any other case that Operator shall pay
such costs;
(iv) the costs referred to in paragraph 8A.10(a)(iv) and (v)
above shall be met by the Long Line Public
Telecommunications Operator, whether the Licensee or an
Operator, to whom the customer chooses to route calls by
registering a preference or, where the customer exercises
choice on a call-by-call basis, apportioned equitably
among the Long Line Public Telecommunications Operators
(including, where appropriate, the Licensee) to whom the
customer has the option of routing calls from time to
time.
(c) The apportionment of the costs referred to in paragraph
8A.10(a)(i), (ii) and (iii) shall reflect equitably the benefit
to the Operator and his customers, actual and potential, of the
implementation of Equal Access in relation to that Operator.
(d) Before determining any apportionment of any costs referred to
in paragraph 8A.10(a), the Director shall inform the Licensee
and the Operator of his proposed determination, together with
a full explanation of how it is calculated, and shall allow the
Licensee and the Operator a reasonable period, being not less
than 28 days, in which to make representations.
8A.11 In this Condition 8A, potential customers include those customers of
the Licensee who it is reasonable to expect will apply for the Equal Access
facility, and "Exchange Line" shall have the meaning given to it in Condition
6.
8A.12 The provisions of this Condition form part of Condition 8 and
accordingly shall be treated for all purposes as contained in and laid down in
Condition 8.".
CONDITION 8B
ESSENTIAL INTERFACES
After Condition 8A insert:-
"Condition 8B
ESSENTIAL INTERFACES
8B.1 This Condition is without prejudice to Condition 8.
8B.2 (a) The Director may, having first notified the Licensee of his
proposal, affording the Licensee adequate time, being not less
than 28 days, in which to make representations, specify an
Essential Interface.
(b) "Essential Interface" means in respect of a point of
connection, as defined in Condition 8.5A1, an interface at
which in the opinion of the Director it is essential that
interoperability between the Applicable Cabled Systems and the
respective Operator's systems is available.
8B.3 (a) Where in pursuance of paragraph 8B.2 the Director specifies an
interface as an Essential Interface, and the Licensee
thereafter makes that interface available to an Operator in
relation to its Applicable Cabled Systems, it shall do so in
such a manner as it considers appropriate, but shall ensure
such availability in compliance with the Relevant Standard if
the Operator so requires.
(b) "Relevant Standard" means:
(i) an appropriate European or other international standard,
or
(ii) in the absence of such a standard, any other standard
specified by the Director after notifying the Licensee of
his proposal and allowing the Licensee adequate time,
being not less than 28 days, in which to make
representations, provided that the Director shall not
specify a standard if an appropriate European or other
international standard is expected to be promulgated
within a reasonable time, including, by way of example,
if the European Telecommunications Standards Institute
have published a work programme for the development of
such a standard,
to the extent that such a standard is necessary to ensure
interoperability.
(c) Where in pursuance of paragraph 8B.3(b)(ii) the Director
specifies a standard as a Relevant Standard, he shall include
in that Standard a technical specification. The Director shall
use all reasonable endeavors to obtain the agreement of the
Licensee and other relevant licensees to a technical
specification applicable to the Standard, being a specification
defined by reference to:-
(i) an appropriate European or other international
specification, or
(ii) in the absence of such a specification, a specification
defined by reference to any other standard having
currency within the European Community at the time.
Where after a reasonable time the Director has been unable to
secure the agreement of the Licensee and other relevant
licensees to a technical specification, the Director shall adopt
for inclusion in the Relevant Standard an appropriate technical
specification selected by him which has been promulgated by a
recognised standards body, including, by way of example, the
European Telecommunications Standards Institute, or the British
Standards Institution, or other such body as is recognised by
the Director as representative of all relevant
telecommunications interests.
(d) In any event the Director shall specify a Relevant Standard in
pursuance of paragraph 8B.3(b) only if the owners of relevant
intellectual property rights have agreed to grant any necessary
Licences in respect thereof to the Licensee on reasonable
terms.
8B.4 For the avoidance of doubt this Condition shall not:
(a) without prejudice to paragraph 8B.3, prevent the Licensee
using such interfaces as it considers appropriate in relation
to the Applicable Cabled Systems; or
(b) where it makes available to an Operator an interface which
the Director has specified as an Essential Interface, require
the Licensee to comply with the Relevant Standard if the
Operator does not require it to do so.
8B.5 When implementing an Essential Interface, the Licensee shall not be
obliged to conform with the Relevant Standard:
(a) if to do so would necessitate the Licensee:
(i) acquiring apparatus, software or other goods or
supplies of any kind, or implementing any operation,
incompatible with, as the case may be, apparatus,
software or such other goods or supplies already at
the time in use, or the subject at the time of
contracts for their procurement for use, in connection
with any of the Applicable Cabled Systems, or, in the
case of an operation, incompatible with any other
operation being carried out at the time in connection
therewith, or
(ii) incurring any cost, or having to resolve technical
difficulties, disproportionate to the benefits to be
gained from the implementation of the Relevant
Standard,
provided that the Licensee shall take reasonable steps to
incorporate the Relevant Standard in its plans for network
development, with a view to implementation of that Standard in
connection with the Applicable Cabled Systems, but without the
Licensee incurring any incremental expenditure
disproportionate to the benefits to be gained from the
implementation of the Relevant Standard which, but for the
implementation of the Relevant Standard, would not have been
incurred;
(b) if the Relevant Standard is inappropriate for the particular
application for any reason, including, without limitation:
(i) that it does not afford the Licensee adequate
protection for the security of the Applicable Cabled
Systems;
(ii) that its implementation would be liable to cause
material impairment in the quality of any
telecommunications service provided by means of any of
the Applicable Cabled Systems;
(iii) that it does not cater adequately for billing,
metering or other customer administration systems; or
(iv) that it is technically inadequate in the light of
technical developments which have taken place since it
was originally created;
(c) if the Essential Interface concerned is of a genuinely
innovative nature and accordingly the use in connection with
it of the Relevant Standard would not be appropriate;
(d) if compliance with the Relevant Standard would involve the
infringement by the Licensee of any intellectual property
right vested in any person; or
(e) if the Director so agrees.
8B.6 Where paragraph 8B.5(b) or (c) applies the Licensee shall notify
the Director thereof, with an explanation why.
8B.7 It is a precondition of any obligation on the Licensee under this
Condition that equivalent obligations as are contained in this Condition are
included in the respective Licences of all Operators.
8B.8 In this Condition "Operator" has the meaning given to it in
Condition 8.1.".
SERVICE PROVIDERS
In Condition 10.2 after "to provide by means of the Applicable Cabled Systems
any service other than" delete "(i) Connection Services; or (ii)".
After Condition 10.3 add:-
"10.4 Where the Director determines that the Licensee has 25% or more of
what is in the Director's opinion the relevant market as respects the
provision of any telecommunication service of a particular description (other
than cable television services) in any part or locality of the United Kingdom
paragraphs 10.5 to 10.10 of this Condition shall come into force in respect of
such services in such part or locality of the United Kingdom specified in that
determination and on such date as the Director shall specify.
10.5 The Licensee shall, following a request by any Service Provider to
do so, provide to that Service Provider any description of telecommunication
service specified in any determination made under paragraph 10.4 and which the
Licensee at the time the request is made offers to its customers generally and
which is specified in the request, on terms which would not prohibit the
Service Provider from contracting with another person to provide that person
with that description of service.
10.6 (a) If on an application by a Service Provider the Director is
satisfied that the Service Provider has established a prima
facie case that any charge, term or condition proposed by the
Licensee is unreasonable and that the Licensee has acted
unreasonably in relation to negotiations on it, the Director
may, if he considers it necessary to do so, determine that the
Licensee shall modify that provision in such a way as to make
it reasonable, in the agreement with the Service Provider.
In applying this paragraph:
(i) no determination made shall affect any exclusion or
restriction equivalent to one which is, at the
relevant time, included in the Licensee's current
usual terms and conditions upon which the Licensee
provides the same description of service to the
generality of the Licensee's customers in a way which
would or might have the effect of rendering the
position of the Licensee in relation to the provision
of the service the subject of the determination worse
than the position of the Licensee in relation to the
provision of the same description of service to the
generality of the Licensee's customers;
(ii) any such modified provision shall be confined to the
subject matter of the term or condition proposed by
the Licensee except that, where the Director considers
that a term or condition is essential in relation to
subject matter not covered by any term or condition
proposed by the Licensee, he may determine a term or
condition to cover that subject matter;
(iii) the Licensee shall not be deemed to have acted
unreasonably merely by virtue of having proposed the
term or condition in question; and
(iv) no determination may be made in relation to any
provision which would be subject to the Unfair
Contract Terms Act 1977.
(b) Before making a determination under paragraph 10.6(a) the
Director shall notify to the Licensee and the Service
Provider the grounds of the Service Provider's application and
his conclusions thereon and the modification he proposes
to make or require the Licensee to make, and shall afford the
Licensee and the Service Provider adequate time, being not
less than 28 days, in which to make representations.
10.7 (a) Subject to the terms of this paragraph, any charge determined
under paragraph 10.6 by the Director shall be determined by
reference to the Licensee's usual charge ("the usual charge")
for the provision to its customers generally of the service
of the description in question ("the Service").
(b) Any charge determined under paragraph 10.6 by the Director
shall not be:-
(i) less than the usual charge for the Service by an
amount which exceeds any cost savings of the Licensee
which are shown to be likely; or
(ii) less than the usual charge for the Service plus any
additional costs of the Licensee which are shown to be
likely.
(c) Where the cost to the Licensee of the provision of a service
to a Service Provider exceeds the usual charge no charge
determined under paragraph 10.6 shall be less than the usual
charge.
(d) In this paragraph "costs" means fully allocated costs and a
reasonable rate of return on capital employed.
10.8 If at any time it appears to the Director that the Service Provider
no longer satisfies the criteria within paragraph 10.10(a), the Director may,
on giving not less than three months notice to both the Licensee and the
Service Provider of his intention to do so, direct the Licensee to cease
providing that description of telecommunication service to the Service
Provider.
10.9 Where a direction given by the Director under paragraph 10.8
contains a statement that it appears to him that the need to protect the
customers of the Service Provider or to protect any other person requires
that the direction should be made without delay, the Director shall not be
required to give the notice required to be given by paragraph 10.8 or any
notice.
10.10 In this Condition "Service Provider" means:
(a) any person proposing to carry on the business of re-selling
any description of telecommunication service proposed to be
provided to that person by the Licensee and in respect of
whom the Licensee has no reason to believe that such person
will be unable to carry on that business effectively,
economically and efficiently; or
(b) any person actually carrying on that business from time to
time; or
(c) where, on the application of any person proposing to carry
on that business to whom the Licensee has refused to provide
any telecommunication service, the Director is satisfied
that such service has been refused and has determined that
such service should be provided by the Licensee to such
person, that person;
but does not in any case mentioned in paragraph 10.10(a),
10.10(b) or 10.10(c) include any person who carries on or would
carry on that business by means which necessarily involve the
running of a telecommunication system by him or on his
behalf.".
CONDITION 11
PRICE NOTIFICATIONS
At the end of paragraph 11.4(a) add:-
"In respect of a service to which paragraph 11.3 applies a copy of the notice
shall be sent to the Director at the time the service is first provided.".
At the end of paragraph 11.4 insert:-
"Where the Licensee publishes a notice of an amendment to a charge in the form
of an extract from the Licensee's price list the new price shall be clearly
identifiable and the operative date specified.".
Condition 15
PROVISION OF VOICE TELEPHONY SERVICES
For Condition 15 substitute:-
"Condition 15
PROVISION OF VOICE TELEPHONY SERVICES
15.1 If:
(a) the Licensee has become, in the opinion of the Director, a well
established operator in the provision of voice telephony
services within part of the Licensed Area; and
(b) the arrangements made by the Licensee are inadequate to secure
the availability of voice telephony services to any person
within that part of the Licensed Area who may reasonably request
them, the Director may direct the Licensee to take such steps
as the Director considers appropriate for the purpose of
securing that voice telephony services are available within
that part or all of the Licensed Area to any person who may
reasonably request them and the Licensee shall comply with any
such direction.
15.2 The Licensee shall satisfy the Director within 42 days of each of the
dates in Condition 1.2(a) and (b) that the Applicable Cabled Systems are
capable of providing services for the purpose of sending and receiving voice
telephony messages between the Applicable Cabled Systems and any other
Specified Public Telecommunications System.
15.3 In order to satisfy the Director that the requirement referred to in
paragraph 15.2 has been met it shall be sufficient for the Licensee to
demonstrate that the capacity to supply voice telephony services exists
throughout the Licensed Area by the Applicable Cabled Systems being installed
so that there is sufficient space within the ducts to permit the insertion of
any additional cables necessary to meet the requirement set out in paragraph
15.2 and accordingly this paragraph shall apply without prejudice to any
obligation in Schedule 4 to this Licence relating to the provision of spare
capacity in any ducts installed by the Licensee.
15.4 Nothing in this Condition shall be taken to require the Licensee to
commence carrying on business in the supply of voice telephony services.
15.5 For the purposes of paragraph 15.1 a "well-established operator" means
that the Licensee has 25% or more of what is in the opinion of the Director the
relevant market (excluding cable television services), within the Licensed
Area.
15.6 For the purpose of paragraph 15.3 "duct" means a structure or apparatus
(with appropriate entry points) installed underground in such a way that Lines
can be installed in it without having to break up the surface of the highway;
and
"Line" has the meaning given to it by sub-paragraph (a) of the definition of
"telecommunication apparatus" in paragraph 1 of Schedule 2 to the Act.".
CONDITION 15A
ARRANGEMENTS FOR INTERNATIONAL SIMPLE RESALE SERVICES
After Condition 15 insert:-
"Condition 15A
ARRANGEMENTS FOR INTERNATIONAL SIMPLE RESALE SERVICES
15A.1 The Licensee shall not provide any International Simple Voice Resale
Service by means of the Applicable Cabled Systems unless such services involve
the conveyance of Messages conveyed by the Applicable Cabled Systems which
have been or are to be conveyed also by the equivalent of a Public Switched
Network in any country or territory:
(i) which the Secretary of State has designated for the purpose of
International Simple Voice Resale Services and is included in a
list kept for the purpose by the Director and made available by
him for inspection to the general public;
(ii) in respect of which the Secretary of State has notified the
Licensee that he has made such a designation; and
(iii) which is not a country or territory in respect of which the
Secretary of State has revoked such designation having first
given the Licensee not less than 3 months' notice of his
intention to do so.
15A.2 The Licensee shall not provide International Simple Data Resale
Services by means of the Applicable Cabled Systems unless the Secretary of
State has specified a description of such Services which may be provided by
means of the Applicable Cabled Systems and that specification appears in a
list kept for the purpose by the Director and made available by him for
inspection by the general public.
15A.3 Where it appears to the Secretary of State to be requisite or
expedient to do so in the interests of maintaining or promoting effective
competition in the conveyance of Messages to or from one or more countries or
territories designated under paragraph 15A.l(i) he may, after consulting the
Director, give the Licensee not less than 28 days' notice of his intention
that the provisions of paragraphs 15A.5 and 15A.6 should apply in respect of
such countries or territories as the Secretary of State has specified in that
notice and has not by a further notice given before the expiry of the first
notice cancelled that specification.
15A.4 Any notice given under paragraph 15A.3 shall appear in a list kept by
the Director and made available by him for inspection by the general public.
15A.5 Subject to paragraph 15A.6, in respect of each country or territory
specified in a notice as varied by a second notice (if any) given under
paragraph 15A.3 the Licensee shall secure that in any period specified in the
notice ("the first period"), the ratio ("the first ratio") between:
(a) the volume of Messages comprised in International
Simple Voice Resale Services and International Simple Data
Resale Services which are conveyed by means of the Applicable
Cabled Systems and are delivered to the United Kingdom from
that country or territory; and
(b) the volume of Messages comprised in International Simple Voice
Resale Services and International Simple Data Resale Services
which are conveyed by means of the Applicable Cabled Systems
and are sent from the United Kingdom to that country or
territory
does not differ from the ratio ("the second ratio") for the previous specified
period ("the second period") (the second ratio and the second period both
being specified in the notice) between:
(c) the total volume of all Messages delivered to the United
Kingdom from that country or territory; and
(d) the total volume of all Messages sent from the United Kingdom
to that country or territory.
15A.6 Where the Secretary of State is unable for any reason to specify the
second ratio and has informed the Licensee accordingly, the Licensee shall
secure that in the first period the volume of Messages of the sort described in
paragraph 15A.5(a) shall be equal to the volume of Messages of the sort
described in paragraph 15A.5(b).
15A.7 In this condition:
(a) "Public Switched Network" means a public telecommunication
system by means of which two-way telecommunication services are
provided whereby Messages are switched incidentally to their
conveyance, and, for the avoidance of doubt, a Public Switched
Network does not include Private Leased Circuits or
International Private Leased Circuits.
(b) "International Private Leased Circuit" means a
communication facility which is:
(i) comprised both in a public telecommunication system and
in an equivalent telecommunication system in a country or
territory other than the United Kingdom;
(ii) for the conveyance of Messages between points, all of
which are points of connection between telecommunication
systems referred to in (i) and other telecommunication
systems;
(iii) made available to a particular person or particular
persons;
(iv) such that all of the Messages transmitted at any of the
points mentioned in (ii) are received at every other such
point; and
(v) such that the points mentioned in (ii) are fixed by the
way in which the facility is installed and cannot
otherwise be selected by persons or apparatus sending
Messages by means of that facility.
(c) "International Simple Data Resale Services" means
telecommunication services consisting in the conveyance of
Messages which do not include two-way live speech, but
include only such switching, processing, data storage or
protocol conversion as is necessary for the conveyance of
those Messages in real time, which have been or are to be
conveyed by means of all of the following:
(a) a Public Switched Network;
(b) an International Private Leased Circuit; and
(c) the equivalent of a Public Switched Network in another
country or territory;
provided that there shall be disregarded:
(aa) any service provided by means of a Public Switched
Network consisting only in such conveyance and switching
which when carried out by a customer of that Public
Switched Network over a telecommunication system run
by him could be carried out under the Class Licence for
the Running of Self Provided Telecommunication Systems
granted by the Secretary of State under section 7 of the
Telecommunications Act 1984 on 30 July 1992; and
(bb) any service provided by means of the Applicable Cabled
Systems consisting only in such conveyance and switching
which when carried out by a person other than a public
telecommunications operator over a telecommunication
system run by him could be carried out under the Class
Licence to Run Branch Systems to Provide Telecommunication
Services granted by the Secretary of State under section
7 of the Telecommunications Act 1984 on 15 July 1992.
(d) "International Simple Voice Resale Services" means
telecommunication services consisting in the conveyance of
Messages which include two-way live speech which have been or
are to be conveyed by means of all of the following:
(a) a Public Switched Network;
(b) an International Private Leased Circuit; and
(c) the equivalent of a Public Switched Network in another
country or territory;
provided that there shall be disregarded:
(aa) any service provided by means of a Public Switched
Network consisting only in such conveyance and switching
which when carried out by a customer of that Public
Switched Network over a telecommunication system run by
him could be carried out under the Class Licence for the
Running of Self Provided Telecommunication Systems
granted by the Secretary of State under section 7 of the
Telecommunications Act 1984 on 30 July 1992; and
(bb) any service provided by means of the Applicable Cabled
Systems consisting only in such conveyance and switching
which when carried out by a person other than a public
telecommunications operator over a telecommunication
system run by him could be carried out under the Class
Licence to Run Branch Systems to Provide Telecommunication
Services granted by the Secretary of State under section
7 of the Telecommunications Act 1984 on 15 July 1992.
(e) "Private Leased Circuit" means a communication facility which
is:
(a) provided by means of one or more public telecommunication
systems;
(b) for the conveyance of Messages between points, all of
which are points of connection between telecommunication
systems referred to in paragraph (a) and other
telecommunication systems;
(c) made available to a particular person or particular
persons;
(d) such that all of the Messages transmitted at any of the
points mentioned in paragraph (b) are received at every
other such point; and
(e) such that the points mentioned in paragraph (b) are fixed
by the way in which the facility is installed and cannot
otherwise be selected by persons or telecommunication
apparatus sending Messages by means of that facility.".
CONDITION 25
METERING, BILLING ETC
For Condition 25 substitute:-
"Condition 25
METERING, BILLING ETC
25.1 As regards any description of meter in use on a date specified by the
Director in connection with any of the Applicable Cabled Systems and so
specified, the Licensee shall apply for approval as soon as practicable and in
any case not later than such date as the Director may determine in relation to
that description of meter.
25.2 As regards any description of meter specified by the Director and not
in use in connection with the Applicable Cabled Systems on the date specified
under paragraph 25.1, the Licensee shall, unless the Director consents
otherwise, apply for approval no later than such date as further specified by
the Director or not less than six months before the date on which the Licensee
intends to bring that meter into such use, whichever shall be the later.
25.3 The Licensee shall not after such date as the Director may determine
in relation to any description of meter specified by him, keep in or bring
into use in connection with any of the Applicable Cabled Systems, any
description of meter so specified which is not approved or for which the
Licensee has not made an application for approval.
25.4 Where approval is not granted to or is withdrawn from a particular
description of meter the Licensee shall, as soon as is reasonably practicable,
either:
(a) inform the Director of the action to be taken by the Licensee
to remedy the absence of approval in relation to that
description of meter and the anticipated date of such approval;
or
(b) inform the Director that the Licensee intends to cease use of
that description of meter in connection with any of the
Applicable Cabled Systems within a time reasonably practicable
to the Licensee. On request of the Director, the Licensee
shall provide the Director with a timetable for the withdrawal
of that description of meter.
25.5 The Licensee shall not render any bill in respect of any description
of telecommunication service provided by means of any of the Applicable Cabled
Systems unless every amount (other than an indication of unit charge) stated in
that bill is no higher than an amount which represents the true extent of any
such service actually provided by the Licensee to the customer in question.
In this paragraph 25.5 "customer" does not include an operator within the
meaning of Condition 8.
25.6 Without prejudice to the generality of paragraph 25.5, the Licensee
shall at all times maintain in operation such a billing process as facilitates
compliance by the Licensee with, and is calculated to prevent contravention by
it of, that paragraph.
25.7 The Licensee shall not be regarded as being in contravention of its
obligation under paragraph 25.5 except where the failure is in relation to the
billing process and the Licensee has failed to take all reasonable steps to
prevent a contravention of that obligation.
25.8 The Licensee shall keep such records as may be necessary or as may be
determined by the Director to be necessary for the purpose of satisfying him
that the billing process has the characteristics specified in relation to it
by paragraph 25.6, provided that nothing in this paragraph shall require the
Licensee to retain any records for more than 2 years from the date on which
they came into being.
25.9 For the purpose of giving the Director an independent quality
assurance from time to time that the billing process has the characteristics
specified in relation to it by paragraph 25.6, the Licensee shall where the
Director has prima facie grounds to believe the billing process does not have
those characteristics and has so notified the Licensee, extend its prompt
co-operation to the Director and, in particular, on request by the Director
shall:
(a) furnish the Director in accordance with his reasonable
requirements with any information, document (including any
facility enabling him to read data not held in readable form)
or other thing;
(b) carry out (or cause to be carried out by such person having
such special expertise as the Director may specify and to whom
the Director has raised no reasonable objection) in such manner
as the Director may specify an examination of the whole or any
part of the billing process and as soon as practicable after
the conclusion of such examination furnish the Director with a
written report by the Licensee or such specified person, as the
case may be, of the results of such examination;
(c) on reasonable notice by him allow at all reasonable times the
Director and, in the case of any member of his staff, on
production of his special authority in that behalf, access to
any relevant premises, plant or equipment of the Licensee;
(d) on reasonable notice by him allow at all reasonable times the
Director and, in the case of any member of his staff, on
production of his special authority in that behalf, to examine
or test the whole or any part of the billing process including
any plant or equipment whether or not forming part of any of
the Applicable Cabled Systems;
(e) for the purpose of paragraph 25.9(c) and (d), allow the
Director to be accompanied by any person as the Director may
specify and to whom the Licensee has raised no reasonable
objection whose assistance he might reasonably require for the
purpose mentioned at the beginning of this paragraph provided
that the Director shall have given the Licensee notice (save in
exceptional circumstances of at least 5 working days) of the
identity of that person; and
(f) install and keep installed any equipment (whether or not
supplied by the Director) for the purpose of verifying:
(i) the accuracy and reliability of any equipment or
apparatus (including any meter) of the Licensee; and
(ii) in the case of any meter which is or is required to be
approved and is in use in connection with any of the
Applicable Cabled Systems, compliance with any conditions
or other matters which may be required as regards such
use of that meter.
25.10 When this Condition first comes into force paragraphs 25.1, 25.2, 25.3
and 25.4 above shall only apply to any description of meter for voice
frequency switched telecommunication services.
25.11 In this Condition:
"approved" means approved under section 24 of the Act;
"billing process" means metering systems and billing systems taken
together, where "billing system" means the totality of all equipment,
data, procedures and activities which the Licensee employs to
determine the charges to be sought for service usage recorded by a
metering system based on published or previously negotiated pricing
structure and to present these charges on customers' bills; and
"metering system" means the totality of all equipment, data,
procedures and activities which the Licensee employs to determine the
extent of any telecommunication services provided by means of any of
the Applicable Cabled Systems;
"information" includes accounts, estimates and returns; maintained,
or to be installed or to be maintained, at the Licensee's premises,
constructed or adapted for use in ascertaining the extent of
telecommunication services provided by means of a telecommunication
system and cognate expressions shall be construed accordingly; and
"service" includes any service provided by any person to whom the
Licensee is bound to account for any part of the amount charged by
the Licensee.".
CONDITION 29A
NUMBERING ARRANGEMENTS
After Condition 29 insert:-
"Condition 29A
NUMBERING ARRANGEMENTS
29A.1 Subject to the provisions of this Condition, Condition 29 shall cease
to have effect on the coming into force of this Condition.
29A.2 Any Numbering Plan in force immediately before the coming into effect
of this Condition by virtue of paragraphs 29.1 to 29.4 shall remain in force
until the adoption of any Numbering Plan amending or replacing the same under
any of the following provisions of this Condition.
29A.3 Where before the coming into force of this Condition the Licensee has
furnished to the Director proposals in accordance with paragraph 29.5, the
Director shall, notwithstanding paragraph 29A.1, make a determination in
relation to those proposals in accordance with paragraph 29.6 and the Licensee
shall adopt the Numbering Plan referred to in that paragraph as provided
therein.
29A.4 Where before the coming into force of this Condition the Licensee has
adopted a Numbering Plan in accordance with paragraph 29.6, or the Director
has made a determination under that paragraph (by virtue of which the
Licensee shall adopt the Numbering Plan), the Numbering Plan so adopted shall
be the Licensee's Numbering Plan until the Licensee adopts a Numbering Plan
pursuant to the following provisions of this Condition. The Numbering Plan
referred to in the following provisions of this Condition is the Numbering
Plan adopted pursuant to those provisions.
29A.5 The Director may determine a Specified Numbering Scheme (the "Scheme")
in accordance with the National Numbering Conventions (the "Conventions")
published in accordance with paragraph 29A.9. and he will allocate Numbers
from this Scheme to the Licensee in accordance with the Conventions. The
initial allocation of Numbers to the Licensee shall be of those Numbers to
which the Numbering Plan referred to in paragraphs 29A.3 and 29A.4 relates and
of any other Numbers to which any other Numbering Plan in force immediately
before such allocation relates, provided that, at such time of initial
allocation, those Numbers are currently in use by the Licensee, and where not
so in use, the Director shall have due regard to the Licensee's plans and
future requirements for its use and allocation of additional Numbers. The
Director shall, at the request from time to time of the Licensee, allocate to
it;
(a) such quantity of additional Numbers as it may require; and
(b) in accordance with the Conventions, such specific Numbers as it
may request and which the Director is satisfied are not
required for other purposes.
29A.6 The Licensee shall adopt a Numbering Plan for such Numbers as the
Director may allocate to it from time to time in accordance with the
Conventions. It shall within three months of being notified of such
allocation furnish details of the Numbering Plan to the Director, and keep him
informed of material changes to the Numbering Plan as they occur. The
Licensee shall also furnish details of the Numbering Plan together with any
material changes to that Numbering Plan on request to any other person having
a reasonable interest. Except where the Director agrees otherwise, the
Numbering Plan shall be consistent with the Conventions published in
accordance with paragraph 29A.9. If the Numbering Plan is not consistent with
those Conventions, the Director may direct the Licensee to adopt and furnish
him with a new Numbering Plan or to take such other reasonable remedial action
which does not cause undue inconvenience to the Licensee's customers, as may
be necessary to ensure consistency.
29A.7 The Licensee shall install, maintain and adjust its switched
Applicable Cabled Systems so that those Systems route Messages and otherwise
operate in accordance with the Numbering Plan, including any requirement
relating to Portability contained in paragraph 29A.11. The Licensee shall not
use Numbers other than those allocated to it from the Scheme except:
(a) with the written consent of the Director; or
(b) where the use of those Numbers is the subject of an agreement
to which Condition 8 applies.
29A.8(a) The Licensee shall provide to the Director on request, such
information about its operations under its Numbering Plan as he
may reasonably require to administer the Scheme and in
particular on:-
(i) the percentages of Numbers in significant ranges which
have already been allocated to end-users or which for
other reasons are unavailable for further allocation;
(ii) any allocation of blocks of Numbers to any person for
purposes other than end use;
(iii) Numbers whose use has been transferred at an end-user's
request to another Operator; and
(iv) the Licensee's current forecasts of all of the above
matters.
(b) The Licensee shall not be required to provide information about
individual end-user customers.
(c) In making any such request the Director shall ensure that no
undue burden is imposed on the Licensee in procuring and
furnishing such information and, in particular, that the
Licensee is not required to procure or furnish information
which would not normally be available to it, unless the
Director is satisfied that such information is essential to the
administration of the Scheme.
29A.9(a) The Conventions referred to in this Condition will be a set of
principles and rules published from time to time by the
Director after consultation with interested parties who are
members of the Telecommunications Numbering and Addressing Body
and, if deemed appropriate, with end-users.
(b) In consulting the said interested parties, the Director shall
afford a reasonable period, not being less than 28 days, for
them to make representations, and he shall take the said
representations into account when publishing the Conventions.
The Conventions shall govern the specification and application
of the Scheme and the Numbering Plan of the Licensee and may
also include such other matters relating to the use and
management of Numbers as (but not limited to):
(i) criteria and procedures relating to the application for,
allocation of and withdrawal of numbers;
(ii) dialling plans;
(iii) access codes;
(iv) prefixes;
(v) standard ways of recording Numbers for convenience or
ease of use, such as the grouping of digits in Numbers of
particular lengths;
(vi) methods of enabling end-users to understand the meaning
implicit in Numbers or other dialled digits, and in
particular the rate at which a call to a particular
Number will be chargeable;
(vii) arrangements for the transfer of Numbers between
Operators as a result of portability.
(c) The Director may from time to time amend or withdraw a
Convention already published, after consultation with
interested parties who are members of the Telecommunications
Numbering and Addressing Body. The Licensee shall not be
required to comply with any such amendment or withdrawal unless
the Licensee has been given a reasonable period of notice, such
notice not being less than three months. Numbers allocated to
the Licensee may only be withdrawn after similar consultation
and notice, and the Director shall consult end-users affected
by such withdrawal. Subject to overriding national interests,
or where there is no alternative solution available, the power
to withdraw Numbers shall not apply to any Numbers which the
Director has approved from time to time as part of a specific
service of the Licensee, which, as a result of investment by the
Licensee, has a recognized identity and quality associated with
that particular Number and which the Licensee is using and
plans to continue to use.
29A.10 In deciding on the details of and any subsequent changes to the
Scheme and the Conventions, and when making or changing Number allocations
within the Scheme or making determinations under this Condition, the Director
shall ensure that the Scheme complies with the Conventions and shall have
regard to:
(a) the need for sufficient Numbers to be made available, having
regard to the anticipated growth in demand for
telecommunication services, together with the need for good
husbandry of that supply at any time;
(b) the need to ensure Compatibility with the Numbering Plans
adopted or to be adopted by other public telecommunications
operators;
(c) the convenience and preferences of end-users;
(d) the requirements of effective competition;
(e) the practicability of implementing the Conventions in licensed
systems by the date when the Conventions are intended to apply;
(f) any costs or inconvenience imposed on the Licensee, other
network operators, end-users and other interested parties
(including those overseas);
(g) any relevant international agreements, recommendations or
standards;
(h) the views of the Licensee and other interested parties; and
(i) any other matters he regards as relevant.
29A.11 If directed to do so by the Director, the Licensee shall provide
Portability to the extent set out in paragraph 29A.12.
29A.12 The Portability referred to in paragraph 29A.11 shall be such as will
enable within a specified geographical area:
(a) a person provided with an Exchange Line by the Licensee at an
address at a set of premises to retain the same Number at the
said address if, instead of that Exchange Line, he arranges for
a line to be provided by another public telecommunications
operator which if provided by the Licensee would have been an
Exchange Line ("an Operator Exchange Line"); and
(b) a person provided with an Operator Exchange Line at an address
at a set of premises to retain the same Number at the said
address if he arranges for an Exchange Line to be provided
instead of that Operator Exchange Line by the Licensee.
29A.13 A direction or determination under this Licence will not determine how
the costs of Portability are to be borne and a direction under paragraph
29A.11 will not be made in respect of a geographical area unless:
(a) it is technically feasible for such Portability to be provided
by the Applicable Cabled Systems throughout the said
geographical area;
(b) (i) the Director has carried out a cost-benefit analysis
comparing the likely benefits to telecommunications
customers to be gained from the introduction of
Portability in the whole of the Licensed Area with all
costs likely to be incurred, including opportunity costs,
which analysis indicates that in the geographical areas
(taken together) where Portability is expected to be
provided the gains outweigh the likely costs;
(ii) when carrying out the cost-benefit analysis referred to
in sub-paragraph 29A.13(b)(i), the Director shall consult
the Licensee and the other relevant public
telecommunications operators, affording them each a
reasonable period, being not less than 28 days, in which
to make representations. On conclusion of the analysis,
it shall be made available to the Licensee and those
public telecommunications operators; and
(c) any public telecommunications operator referred to in paragraph
29A.12 is willing to enter into an agreement with the Licensee
to introduce and provide reciprocal Portability, and provides
Portability accordingly.
29A.14 A direction under paragraph 29A.11 may specify the geographical areas
and dates on which such Portability is to be introduced and any agreement or
determination under Condition 8 may specify the methods by which calls are to
be routed between the Applicable Cabled Systems and any Relevant Connectable
System run by another public telecommunications operator for the purposes of
providing Portability.
29A.15 The Licensee shall not, unless the Director consents
otherwise, charge any person for a Number which is allocated to him (other
than a coveted Number allocated to a person who is not a public
telecommunications operator at the request of such a person), but nothing in
this Condition shall preclude the Licensee from recovering from the operator
of a Relevant System the reasonable costs associated with allocating Numbers
to and routing calls to that System; save that in the case of any dispute or
difference as to those costs the Director may determine them and the Licensee
shall not be obliged so to allocate Numbers and route calls unless such
operator agrees to bear the costs so determined.
29A.16 For the purposes of this Condition:
"Compatibility" means the absence between the parties concerned of
any reasonably foreseeable risk of -
(a) duplication of any Number; or
(b) any other related or like effect; which would be liable
to introduce ambiguity or errors or to impose undue
restrictions on any user or group of users;
"Exchange Line" has the meaning given to it in Condition 6;
"Number" means any identifier which would need to be used in
conjunction with any public switched service for the purposes of
establishing a connection with any Network Termination Point, user,
telecommunications apparatus connected to any public switched network
or service element, but not including any identifier which is not
accessible to the generality of users of a public switched service;
"Numbering Plan" means a plan describing the method adopted or to be
adopted for allocating and re-allocating a Number to any Network
Termination Point or to any user, telecommunications apparatus or
service element;
"Relevant System" means a Connectable System which is, or is to be,
connected to any of the switched Applicable Cabled Systems;
"Relevant Apparatus" means any apparatus which is, or is to be, so
connected;
"Specified Numbering Scheme" means a scheme for the allocation and
re-allocation of Numbers for the purposes of any of the switched
Applicable Cabled Systems and the systems of other licensed Operators
which is specified by the Director for the purposes of this Licence
and described in a list kept for the purpose by him and made
available by him for public inspection; and
"Telecommunications Numbering and Addressing Body" means a body
approved by the Director as representative of the Licensee, other
public telecommunications operators and other persons whom the
Director considers it appropriate to include in consultations about
the content of the Conventions and the Scheme.
29A.17 For the avoidance of doubt, it is hereby declared that this Condition
applies notwithstanding any arrangements for numbering arising by virtue of
any agreement to which Condition 8 applies. But nothing in this paragraph
shall affect the operation of any such agreements entered into before the
coming into force of this Condition.
29A.18 The Numbers to which this Condition applies are Numbers:
(a) of a class described in CCITT Recommendation E.160, E.163,
E.164, E.165, E.166 or F.69 or their functional successors; or
(b) which are of a class described in CCITT Recommendation X.121
and which include any Data Network Identification Code which
has been:
(i) allocated before 14 November 1986 in accordance with the
Numbering Plan furnished to the Director in accordance
with paragraph 29.1; or
(ii) specified by the Director for the purposes of this
Licence and described in a list kept for that purpose by
the Director and made available by him for inspection to
the general public.".
CONDITION 32A
CONTROLLED SERVICES
After Condition 32 insert:-
"Condition 32A
CONTROLLED SERVICES
32A.1 The Licensee may only provide a Controlled Service in whole or part by
means of the Applicable Cabled Systems (whether or not Messages comprised in,
or resulting from the provision of, such Services have previously been or are
subsequently conveyed by any other public telecommunication system) where the
Relevant Condition is satisfied.
32A.2 The Licensee may only provide a telecommunication service to another
person by means of the Applicable Cabled Systems by means of which that
person, to the knowledge of the Licensee, provides a Controlled Service
(whether or not Messages comprised in, or resulting from the provision of,
such Services have previously been or are subsequently conveyed by any other
public telecommunication system) where the Relevant Condition is satisfied.
32A.3 The Relevant Condition is that there is in effect at the time the
Controlled Service concerned is provided, a Code of Practice governing the
provision of such a Service, which has been recognized by the Director for the
purposes of this Condition after consultation with the Licensee and with any
body which he considers to be representative of those wishing to provide such
Services.
32A.4 A Code of Practice shall only be recognized for the purposes of
Paragraph 32A.3 if the Director is satisfied that:
(a) its provisions are capable of properly regulating the provision
of the Controlled Services to which it relates and, without
prejudice to the generality of the foregoing, make adequate
provision for compensating those who suffer as a result of the
provision of such Services; and
(b) adequate arrangements have been made for the constitution of a
body of persons to apply and administer the Code.
32A.5 A Code of Practice is recognized for the purposes of this Condition
where it is specified as such in a determination made by the Director, and the
Director may, at any time after such a Code is recognized and after giving
not, less than one month's notice in writing of his intention to the body of
persons applying and administering the Code, determine that its recognition be
revoked if he is satisfied that its provisions are not capable of properly
regulating the provision of the Controlled Services to which it relates or
that it is not being properly applied and administered.
32A.6 For the purposes of this Condition the Director may recognize a Code of
Practice in relation to any description of Controlled Service or to all
Controlled Services and the provisions of this Condition shall apply
accordingly.
32A.7 If a recommendation is made to the Director by the body of persons
applying and administering a Code of Practice recognized under paragraph 32A.3
that any person (including the Licensee) should no longer be permitted or
should not be permitted to provide a particular Controlled Service or any
Controlled Services (whether or not he is providing it or them when the
recommendation is made) and the Director considers it appropriate, he may
direct the Licensee to cease to provide, or, as the case may be, not to
provide that person or any other person with any service facilitating or
enabling the provision of the relevant Controlled Service or Services or, as
the case may be, itself cease to provide, or, as the case may be, not to
provide the relevant Controlled Service or Services.
32A.8 The Director may determine, subject to such conditions as he, thinks
fit, that:
(a) any controlled Service of any description, or any
individually specified such Service provided by a person
named in the determination, is not to be treated as a
Controlled Service for the purposes of this Condition; and
(b) any individually specified Controlled Service in respect of
which a determination under sub- paragraph (a) above has been
made or which is within a description of Controlled Services in
respect of which such a determination has been made, is to be
treated as a Controlled Service for those purposes
notwithstanding such determination;
and where a determination of the kind specified in sub-paragraph (b)
above is made the provisions of this Condition shall apply to such a
Service from the date specified in the determination.
32A.9 Subject to paragraph 32A.8, the provisions of this Condition only apply
to a Controlled Service in respect of which:
(a) the person providing the Service obtains the whole or any part
of his revenue from the Licensee (or, where that person is the
Licensee, that part of the Licensee's business which provides
the Service is credited with revenue from that part of its
business which conveys the Messages comprised in, or resulting
from the provision of, the Service), and;
(b) the person responsible for paying the charges for the telephone
calls by means of which the Service is obtained is billed by
means of his telephone bill for any amount in respect of the
provision of the Service.
32A.10 In this Condition:-
(a) "Controlled Service" means any service of the following
descriptions:-
(i) a Chatline Service; or
(ii) a Live Conversation Message Service.
(b) "Chatline Service" means, subject to paragraph 32A.11 below, a
service which consists of or includes:-
(i) the enabling of more than two persons ("the
participants") simultaneously to conduct a telephone
conversation with one another without either:
(A) each of them having agreed with each other; or
(B) one or more of them having agreed with the person
enabling such a telephone conversation to be
conducted;
in advance of making the call enabling them to engage in the
conversation the respective identities of the other intended
Participants or the telephone numbers on which they can be
called.
(c) "Live Conversation Message Service" means a Message Service
(other than a directory information service) which consists of
the provision of live telephone conversation for any purpose,
whether or not including the provision of information of any
kind,
(i) between the person providing the service (or a person
acting on his behalf) and a person who obtains the
service, or
(ii) between a person who has independently called the service
for the purpose of conducting a telephone conversation
with one other such person, and such other person and,
for the avoidance of doubt, it does not include a service
provided by a human operator of the Licensee which is
incidental to the conveyance of a voice telephony
message.
(d) "Message Service" means a service which consists of, or
includes, the sending of speech, music or other sounds or
signals to any person who obtains access to that service by
means of a Public Switched Telephone Network.
(e) "Public Switched Telephone Network" means any public
telecommunications system which is used to provide switched
voice telephony services to the general public.
32A.11 A service by which one or more additional persons who are known (by
name or telephone number) to one or more of the parties conducting an
established telephone conversation can be added to that conversation by means
of being called by one or more of such parties is not on that account a
Chatline Service if it would not otherwise be regarded as such a service.
32A.12 The provisions of the Condition shall cease to have effect on the
making of a direction by the Director under Condition 32B to the extent
specified in the direction.
32A.13 The provision of this Condition and Condition 32B shall come into
force on such day as the Director may determine and different days may be so
determined for different provisions or different purposes.".
CONDITION 32B
PROVISION OF SPECIAL FACILITIES
After Condition 32A insert:-
"Condition 32B
PROVISION OF SPECIAL FACILITIES
32B.1 The Licensee shall comply with any direction made under this paragraph
which requires the Licensee to make available such of the facilities listed in
paragraph 32B.2 as are specified in the direction. A direction under this
paragraph shall be made by the Director after consultation with the Licensee
and shall specify only facilities which the Director considers it will be
technically and economically practicable for the Licensee to provide. The
direction shall specify the date by which each facility is to be provided and
the class or description of customer (whether described by reference to area
or otherwise) to whom it is to be provided and shall be subject to such
conditions as the Director thinks fit.
32B.2 The facilities referred to in paragraph 32B.1 are:-
(a) The provision to any customer of the Licensee for voice
telephony services who requests it of a bill or invoice
showing, by reference to the number used to access the service,
and the date and time on which access was obtained, the amount
of any charge imposed by the Licensee for a telephone call to
any service to which this Condition applies;
(b) the notification to such a customer who requests it, as soon as
reasonably practicable, of:
(i) the date on which the total charges accrued within the
standard billing period of the Licensee for voice
telephony services and any other service to be included
in the bill or invoice for such services exceed an amount
specified by that customer being an amount, or one of a
number of amounts, from time to time specified by the
Licensee as being suitable for the purpose; or
(ii) the date on which the aggregate charges accrued in any
such period in respect of Chatline Services and Message
Services to which this Condition applies exceed an amount
determined from time to time by the Director; and
(c) the barring, by means of apparatus forming part of the
Applicable Cabled Systems, on request by any such customer, of
access from any Exchange Line specified by that customer and in
respect of which that customer is the customer of the
Licensee, to all Chatline Services and Message Services to
which this Condition applies;
32B.3 The services to which this Condition applies are those Chatline
Services and Message Services in respect of which:
(a) the person providing the service obtains the whole or any part
of his revenue from the Licensee (or, where that person is the
Licensee, that part of the Licensee's business which provides
the Service is credited with revenue from the part of its
business which conveys the Messages comprised in, or resulting
from the provision of, the Service) and;
(b) the person responsible for paying the charges for the telephone
calls by means of which the Service is obtained is billed by
means of his telephone bill for any amount in respect of the
provision of the Service.
32B.4 In this Condition "Chatline Service" and "Message Service" have the
respective meanings given to those terms in Condition 32A and "Exchange Line"
has the meaning given to that term in Condition 6.".
CONDITION 40
PRIVATE CIRCUITS TO OTHER PTOs
For Condition 40 substitute:-
"Condition 40
PRIVATE CIRCUITS
40.1 Where the Licensee is a well-established operator and following the
application of any public telecommunications operator for Private Circuits of
a description which that operator is authorized by a Licence to provide the
Licensee shall, in accordance with Condition 1, provide Private Circuits to
that operator, unless the Director is satisfied:
(a) that any reasonable demand is or is to be met by other means
and that accordingly it would not be reasonable in the
circumstances to require the Licensee to provide the Private
Circuit in question; or
(b) that the public telecommunications operator in question would
be unduly reliant upon services provided by the Licensee as a
means of satisfying his obligations under his license; and
Condition 8 shall not apply in respect of any such application
as is mentioned in this paragraph.
40.2 Where pursuant to Condition 11 the Licensee has published standard
charges for Private Circuits of certain descriptions and proposes to provide
Private Circuits of different or similar descriptions to an operator under this
Condition and has published charges ("the specific charges") for such Private
Circuits, the following provisions shall apply.
40.3(a) If on an application by a public telecommunications operator
the Director is satisfied that the public telecommunications
operator has established a prima facie case that any specific
charge is unreasonable the Director may, if he considers it
necessary to do so, determine that the Licensee shall modify
that charge in such a way as to make it reasonable; provided
that the Licensee shall not be deemed to have acted
unreasonably merely by virtue of having proposed the charge in
question.
(b) Before making a determination under paragraph 40.3(a) the
Director shall notify to the Licensee the grounds of the public
telecommunications operator's application and his conclusions
thereon and the modification he proposes to make or require the
Licensee to make, and shall afford the Licensee adequate time,
being not less than 28 days, in which to make representations.
40.4(a) Subject to the terms of this paragraph 40.4 any charge
determined under paragraph 40.3(a) by the Director shall be
determined by reference to the Licensee's usual charge ("the
usual charge") for the provision to its customers generally of
the usual service.
(b) Any charge determined under paragraph 40.3(a) by the Director
shall not be:-
(i) less than the usual charge for the usual service by an
amount which exceeds any cost savings of the Licensee
which are shown to be likely; or
(ii) less than the usual charge for the usual service plus any
additional costs of the Licensee which are shown to be
likely.
(c) In this paragraph 40.4 "costs" means fully allocated costs and
a reasonable rate of return on capital employed.
40.5 Any published specific charge is not to be determined under paragraph
40.3 as being unreasonable just because it:-
(a) varies, as compared with the nearest applicable usual charge,
with the cost to the Licensee of the provision of the Private
Circuits concerned;
(b) exceeds the Licensee's charges for Private Circuits of the same
or a similar description provided to the generality of its
customers; or
(c) provides the Licensee with a rate of return which is no lower
than that obtained by the Licensee in connection with the
provision of Private Circuits of the same or a similar
description to the generality of its customers.
40.6 Nothing in this Condition shall require the Licensee to:-
(a) deal with applications from public telecommunications operators
in priority to other applications or otherwise discriminate in
favor of public telecommunications operators; or
(b) act in a way which is likely seriously to reduce the quality of
service provided by the Licensee to the generality of its
customers, in respect of any telecommunications service.
40.7. In this Condition, "well-established operator" means the Licensee has
25% or more of the relevant market (excluding cable television services), as
determined by the Director from time to time, within the Licensed Area.".
Condition 41
PRENOTIFICATION OF CHANGES IN SHAREHOLDING
For Condition 41 substitute:-
"Condition 41
PRENOTIFICATION RANGES IN SHAREHOLDING
41.1 The Licensee shall notify the Secretary of State if an undertaking
becomes a Parent Undertaking in relation to the Licensee.
41.2 Subject to paragraph 41.3 below, the Licensee shall notify the
Secretary of State of:
(a) any change in the proportion of the Shares held in a Relevant
Company by any person; or
(b) the acquisition of any Shares in a Relevant Company by a person
not already holding any such Shares, and the proportion of any
such Shares held by that person immediately after that
acquisition.
41.3 The Licensee shall be obliged to notify the Secretary of State of any
acquisition of Shares or change in the Shareholding of a Relevant Company by
any person only if, by reason of that acquisition or change, the total number
of Shares held in that Relevant Company by that person together with any
Shares held by any nominee or trustee for that person immediately after that
change or acquisition:
(a) exceeds 15 per cent of the total number of Shares in that
company (where it did not exceed 15 per cent prior to that
change or acquisition);
(b) exceeds 30 per cent of the total number of Shares in that
company (where it did not exceed 30 per cent prior to that
change or acquisition); or
(c) exceeds 50 per cent of the total number of Shares in that
company (where it did not exceed 50 per cent prior to that
change or acquisition),
provided that where a Relevant Company is a public company as defined in
section 1 of the Companies Act 1985, the obligation shall be discharged by
forwarding to the Secretary of State as soon as practicable all information in
respect of that acquisition or that change as is entered on or received for
entry on the register required to be maintained by that Relevant Company under
section 211 of the Companies Act 1985.
41.4 In any case referred to in 41.1 or 41.2 above, notification shall be
given by a date which is 30 days prior to the taking effect of such change or
acquisition, as the case may be, or as soon as practicable after that date.
41.5 In this Condition:
(a) "Parent Undertaking" has the same meaning as in section 258 of
the Companies Act 1985;
(b) "Relevant Company" means:
(i) the Licensee; or
(ii) a Parent Undertaking in relation to the Licensee;
(c) "Shares" has the same meaning as in section 259(2) of the
Companies Act 1985 and the term "Shareholding" is to be
construed accordingly.".
CONDITION 44
FINANCIAL STATEMENTS
At the end of Condition 44 add:
"44.4 Without prejudice to the generality of paragraph 44.1 the Licensee
shall, if the Director so requests, furnish to him within 6 months of its
financial year end an FRBS statement. If the Director so requests, there will
be appended to the statements a report from the Licensee's auditor stating
whether in his opinion the methods of allocation of costs, assets and
liabilities are reasonable and whether the statement has been properly prepared
applying those methods and is adequate for the purposes specified in paragraph
44.5.
44.5 In this Condition "FRBS statement" means an accounting statement the
purposes of which are to set out and fairly present the costs (including
capital costs), revenue and financial position of the Licensee's services
including a reasonable assessment of the assets employed in and liabilities
attributable to those services. The level of disaggregation as between
services specified in, and in relation to the financial information contained
in, the statement shall be such level as the Director may require from time to
time after consultation with the Licensee.".
CONDITION 45
AGREEMENT DOCUMENTS
For Condition 45 substitute:-
"Condition 45
PRENOTIFICATION OF CHANGES TO THE AGREEMENT DOCUMENTS
45.1 The Licensee shall notify the Secretary of State of any change in
the terms or effect of the Agreement Documents, howsoever arising.
45.2 The Licensee shall notify the Secretary of State of any change of
the Directors of the Licensee.
45.3 In any case referred to in 45.1 or 45.2 above, notification shall be
given by a date that is not later than 30 days before that change takes
effect, or as soon as practicable after that date.
45.4 In this Condition:
(a) "Agreement Documents" means any documents the terms of which if
changed could result in an undertaking becoming a Parent
Undertaking in relation to the Licensee;
(b) "Parent Undertaking" has the same meaning as in Condition 41 of
this Licence.".
CONDITION 46
EXCEPTIONS AND LIMITATIONS ON OBLIGATIONS IN SCHEDULE I
In Condition 46 in paragraph 46.3, after the words ".. failure of any
apparatus or equipment" add the words "beyond the control of the licensee".
For that part of paragraph 46.13 which appears before sub- paragraph (i)
substitute:
"46.13 This Condition does not apply to Conditions 8, 10.7, 12, 20, 23, 24.1,
25.1, 31, 33, 34, 38.1, 39.1, and 41 and:".
MINOR AND CONSEQUENTIAL AMENDMENTS
At the end of Schedule 1, Part 1 add:-
"6 Any reference in any of these Conditions, however expressed, to the
Director notifying the Licensee of any matter, consulting the Licensee about
any matter, affording the Licensee an opportunity to make representations,
taking representations made by the Licensee into account, or explaining, or
giving reasons for, any matter to the Licensee, shall be without prejudice to
any obligation of due process or similar obligation which the Director is or
may be under by virtue of any rule or principle of law or otherwise.".