S.L. 399.48 чл. 48Powers and responsibilities of the Authority with regard to access and interconnection. Cap. 418. Cap. 418.

(1) The Authority shall, acting in pursuit of the objectives set out in article 4 of the Act, encourage and, where appropriate, ensure, in accordance with the Act and these regulations, adequate access and interconnection, and the interoperability of services:

Provided that in doing so the Authority shall exercise its responsibility in a way that promotes efficiency, sustainable competition, the deployment of very high capacity networks, efficient investment and innovation, and gives the maximum benefit to end-users:

Provided further that the Authority shall provide guidance and make publicly available the procedures applicable to gain access and interconnection to ensure that small and medium-sized enterprises and operators with a limited geographical reach can benefit from the obligations imposed.

(2) Without prejudice to measures that may be taken regarding undertakings designated as having significant market power in accordance with regulation 55, the Authority may impose:

(a) to the extent necessary to ensure end-to-end connectivity, obligations on undertakings subject to general authorisation that control access to end-users, including, in justified cases, the obligation to interconnect their networks where this is not already the case;

(b) in justified cases and to the extent necessary, obligations on undertakings subject to general authorisation that control access to end-users to make their services interoperable;

(c) to the extent necessary to ensure accessibility for end-users to digital radio and television broadcasting services and related complementary services specified by the Authority, obligations on operators to provide access to the other facilities referred to in Part II of the Second Schedule on fair, reasonable and non-discriminatory terms;

(d) in justified cases, where end-to-end connectivity between end-users is endangered due to a lack of interoperability between interpersonal communications services, and to the extent necessary to ensure end-to-end connectivity between end-users, obligations on relevant providers of number-independent interpersonal communications services which reach a significant level of coverage and user uptake, to make their services interoperable:

Provided that the obligations referred to in paragraph (d) shall be imposed only:

(i) to the extent necessary to ensure interoperability of interpersonal communications services and may include proportionate obligations on providers of those services to publish and allow the use, modification and redistribution of relevant information by the Authority and other providers, or to use and implement standards or specifications listed in regulation 26 or of any other relevant European or international standards;

(ii) where the European Commission, after consulting BEREC and taking utmost account of its opinion, has found an appreciable threat to end-to-end connectivity between end-users throughout the European Union or in at least three Member States and has adopted implementing measures specifying the nature and scope of any obligations that may be imposed, which implementing measures shall be adopted in accordance with the examination procedure referred to in Article 118(4) of the Electronic Communications Code.

(3) Without prejudice to sub-regulations (1) and (2), the Authority may impose obligations, upon reasonable request, to grant access to wiring and cables and associated facilities inside any building or up to the first concentration or distribution point as determined by the Authority, where that point is located outside the AND SERVICES (GENERAL)

building:

Provided that where the Authority considers that the replication of such network elements would be economically inefficient or physically impracticable, the Authority may then impose such obligations on providers of electronic communications networks or on the owners of such wiring and cables and associated facilities, where those owners are not providers of electronic communications networks. Any access conditions that may be so imposed, may include specific rules on access to such network elements and to associated facilities and associated services, on transparency and non-discrimination and on apportioning the costs of access, which where appropriate, shall be adjusted to take into account risk factors.

(4) Where the Authority concludes, having regard, where applicable, to the obligations resulting from any relevant market analysis, that the obligations imposed in accordance with the sub-regulation (1), do not sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, the Authority may extend the imposition of such access obligations, on fair and reasonable terms and conditions, beyond the first concentration or distribution point, to a point that it determines to be the closest to end-users, capable of hosting a sufficient number of end-user connections to be commercially viable for efficient access seekers:

Provided that in determining the extent of the extension beyond the first concentration or distribution point, the Authority shall take utmost account of relevant BEREC guidelines. If justified on technical or economic grounds, the Authority may impose active or virtual access obligations.

(5) The Authority shall not impose obligations in accordance with sub-regulation (4) on providers of electronic communications networks where the Authority determines that:

(a) the provider has the characteristics listed in regulation 67(1) and makes available a viable and similar alternative means of reaching end-users by providing access to a very high capacity network to any undertaking, on fair, non-discriminatory and reasonable terms and conditions:

Provided that such an exemption may be extended by the Authority to other providers offering, on fair, non-discriminatory and reasonable terms and conditions, access to a very high capacity network;

Provided further by way of derogation the Authority may impose obligations on providers of electronic communications networks fulfilling the criteria laid down in this paragraph where the network concerned is publicly funded;

or

(b) the imposition of obligations would compromise the economic or financial viability of a new network deployment, in particular by small local projects.

(6) Without prejudice to sub-regulations (1) and (2), the Authority may impose on undertakings providing or authorised to provide electronic communications networks, obligations in relation to the sharing of passive infrastructure or obligations to conclude localised roaming access agreements, in both cases if it considers that such obligations are directly necessary for the local provision of services which rely on the use of radio spectrum, in accordance with European Union law and provided that no viable and similar alternative means of access to end-users is made available to any undertaking on fair and reasonable terms and conditions:

Provided that the Authority may impose such obligations only where this possibility is clearly provided for when granting the rights of use for radio spectrum and where justified on the grounds that, in the area subject to such obligations, the market-driven deployment of infrastructure for the provision of networks or services which rely on the use of radio spectrum is subject to insurmountable economic or physical obstacles and therefore access to networks or services by end-users is severely deficient or absent:

Provided further that in those circumstances where the Authority considers that access and sharing of passive infrastructure alone does not suffice to address the situation, the Authority may then impose obligations on sharing of active infrastructure.

(7) In the exercise of its functions under this regulation the Authority shall have regard to:

(a) the need to maximise connectivity throughout the European Union, along major transport paths and in particular territorial areas, and to the possibility to significantly increase choice and higher quality of service for end-users;

(b) the efficient use of radio spectrum;

(c) the technical feasibility of sharing and associated conditions;

(d) the state of infrastructure-based as well as service-based competition;

(e) technological innovation; and AND SERVICES (GENERAL)

(f) the overriding need to support the incentive of the host to roll out the infrastructure in the first place.

Provided that in the event of dispute resolution, the Authority may, impose on the beneficiary of the sharing or inter alia, access obligation, the obligation to share radio spectrum with the infrastructure host in the relevant area.

(8) Obligations and conditions imposed in accordance with sub-regulations (1) to (7) shall be objective, transparent, proportionate and non-discriminatory, and shall be implemented in accordance with the procedures referred to in article 4A of the Malta Communications

Authority Act, and in regulations 21 and 22:

Provided that the Authority shall assess the results of any such obligations and conditions within five years after the adoption of the previous measure adopted in relation to the same undertakings, and in doing so assess whether it would be appropriate to withdraw or amend them in light of evolving conditions. The Authority shall notify the outcome of its assessment in accordance with the procedures referred to in article 4A of the Malta Communications Authority Act and in regulations 21 and 22.

(9) For the purpose of sub-regulations (1) and (2), the Authority may intervene on its own initiative where justified in order to secure the policy objectives of article 4 of the Act and, in particular with the procedures referred to in article 4A of the Malta Communications

Authority Act, and regulation 21.

(10) The Authority shall take the utmost account of any guidelines issued by BEREC in accordance with Article 61(7) of the Electronic Communications Code when defining the location of network termination points.