A.1. The following conditions shall be deleted from the Licence:
A.2. For the "chapeau" of paragraph 12.5 of Condition 12, substitute:
"Where:
(1) after a period which appears to the Director to be reasonable for the purpose, either:-
(i) the Licensee has failed to enter into an agreement as required by the Operator under paragraph 12.1; or
(ii) the Licensee and the Operator, having undertaken, pursuant to provisions for the purpose contained in an agreement entered into under paragraph 12.1, a review of the terms and conditions of the agreement or any of them, have failed to agree whether any of the terms and conditions subject to the review should be amended or if so, what amendments should be made;
then the Director shall, on the application of the Operator or the Licensee, determine the permitted terms and conditions for the purpose of that agreement which have not been agreed between the Licensee and the Operator being terms and conditions relating to the matters mentioned in paragraph 12.4 of Condition 12 which appear to the Director reasonably necessary (but no more than reasonably necessary) to secure......" [the remainder of the condition is unchanged]
A.3. Subparagraph 15.3(a) of Condition 15 shall be replaced by the following:
"(a) sending a copy thereof to the Director not later than the last working day before the date on which any proposal to amend any charge, term or condition or the method of determining the same is to become effective; and ....." [the remainder of the condition is unchanged]
A.4. In Condition 30B (Numbering Arrangements) paragraphs 30B.1., 30.B.2., 30B.3., AND 30B.4. shall be deleted and paragraphs 30B.5 to 30B.18. shall be renumbered 30B.1. et. seq. accordingly.
A.5. Condition 47 (Associates) shall be replaced by the following:
"Associates"
47.1 Without prejudice to the Licensee's obligations under these Conditions in respect, in particular, of anything done on its behalf, where:
(a) the Director determines either:
(i) that a member of the Licensee's Group has done something which would, if it had been done by the Licensee, be prohibited or not be authorised under these Conditions; or
(ii) that a member of the Licensee's Group has done something which would, if it had been done by the Licensee, require the Licensee to take or refrain from taking a particular action under these Conditions and that neither the Licensee nor the member has met that further requirement; and
(b) the Director is not satisfied that the Licensee has taken all reasonable steps to prevent any member acting in that way,
then the Director may direct the Licensee to take such steps as the Director deems appropriate for the purpose or remedying the matter, including refraining from carrying on with that member such commercial activities connected with telecommunications as the Director may determine.
47.2 Where these Conditions apply in respect of the Applicable Systems they do not apply in respect of any other telecommunication system, whether run by the Licensee or another.
47.3 Where any person becomes a member of the Licensee's Group the Licensee shall not be subject to paragraph 47.1 before that is reasonably practicable, but shall be so not later than one year after that person becomes such a member or such later date as the Director may determine.
47.4 This Condition shall not apply to any particular member of the Licensee's Group if and to the extent that the Director so determines".
A.6. The references to Conditions 6, 9, 17, 19, 20, 21, 36, 36A, 37 and 40 in paragraph 50.12 of Condition 50 shall be deleted.
A.6. The definitions previously contained in these following conditions shall be placed in the appropriate position in Part I of Schedule 1:-
Condition 9.6 - "Relevant System"
Condition 17.3 - "Apparatus Production Company"
- "Apparatus Supply Business"
- "Land Mobile Radio Service"
- "Relevant Applicable System"
- "Supplemental Services Business"
- "Systems Business"
Condition 19.5 - "The Auditor"
Condition 21.3 - "The Area"
Condition 36A - "Relevant Applicable System."
Proposed condition "Maintenance of effective competition" (as it would appear in BT's licence; numbering and consequential amendments will differ for Mercury's licence)
MAINTENANCE OF EFFECTIVE COMPETITION
18A.1 The Licensee shall not do any thing, whether by act or omission, which has the object or the effect of preventing, restricting or distorting competition in relation to any commercial activity connected with telecommunications, where such act or omission is done in the course of, as a result of or in connection with providing telecommunication services, or any particular description of telecommunication service, or running a telecommunication system. For the purpose of this Condition such an act or omission has the object or effect of preventing, restricting or distorting competition if it takes the form of:-
(i) any abuse by the Licensee, either alone or with other undertakings, of a dominant position in the United Kingdom or in a substantial part of it;
(ii) the making of any agreement, or the carrying on of any concerted practice, with any other undertaking which has the object or effect of preventing, restricting or distorting competition.
18A.2 (a) An act or omission of a kind described in paragraph 18A.1 is not prohibited where it has or would have no appreciable effect on competition.
(b) An act or omission of a kind described in paragraph 18A.1(ii) is not prohibited by this Condition if the agreement or concerted practice contributes to improving the provision of any goods or services or to promoting technical or economic progress while allowing consumers a fair share of the resulting benefit and does not:
(i) impose on the parties concerned restrictions which are not indispensable to attaining those objectives; and
(ii) afford such parties the ability substantially to reduce competition in respect of the goods or services in question.
(c) This Condition shall not apply to any provision of an agreement insofar as it is a provision by virtue of which the agreement is an agreement to which the Restrictive Trade Practices Act 1976 applies (or would apply but for any exemption under that Act).
(d) This Condition shall not apply to any merger which is a merger situation where two enterprises cease to be distinct for the purposes of Section 64 of the Fair Trading Act 1973.
18A.3(a) Any question whether an act or omission (whether or not it has ceased) is prohibited by this Condition shall be determined by the Director.
(b) Whether any act or omission is prohibited by this Condition shall be determined having regard to:-
(i) the general principles of directly applicable competition law, in particular those laid down by the European Court of Justice on the scope of the competition rules contained in the EC Treaty; and
(ii) any decision of the EU Commission taken in applying the competition rules contained in the EC Treaty and any relevant pronouncement of the Director General of Fair Trading or report of the Monopolies and Mergers Commission.
18A.4(a) If it appears to the Director that an act or omission of the Licensee is prohibited by this Condition he may make an initial determination to that effect (an "Initial Determination").
(b) Before making an Initial Determination the Director shall give a notice to the Licensee:
(i) stating that he is investigating a possible breach of this Condition;
(ii) setting out the reasons why it appears to him that this Condition may be being, or may have been, breached, including any matters of fact or law which he thinks relevant;
(iii) requesting such further information as he may require from the Licensee in order to complete his Initial Determination;
(iv) where appropriate, setting out the steps he believes the Licensee would have to take in order to remedy the alleged breach.
18A.5(a) Within 28 days of the Director making an Initial Determination the Licensee may notify the Director that it requires him to make a final determination (a "Final Determination") of the matter and may make to the Director such further representations as it considers appropriate.
(b) The Director shall then determine whether he is satisfied that the act or omission in respect of which the Initial Determination was made is or was prohibited by this Condition.
18A.6 (a) Before making his Initial Determination or Final Determination the Director shall give the Licensee, and any other person whom he considers it appropriate to consult, such period within which to make representations (both orally and in writing) in response to the notice as he considers reasonable in all the circumstances.
(b) The Director shall notify the Licensee and any other person whom he considers it appropriate to notify of every Initial Determination and Final Determination made by him and of his reasons for making it.
18A.7(a) This Condition shall not limit or affect in any way the Licensee's obligations arising under any other Condition of this Licence.
(b) Condition 53.12 of the Licence shall be amended by the insertion of the number "18A" between the numbers 17 and 19 in the first line of paragraph 12 of Condition 53.