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Communications Bill


Communications Bill
Schedule 18 — Transitional Provisions

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              (a)             that the provision by virtue of which the power or duty is conferred,

imposed or transferred had not been enacted, or had not come into

force, when the steps were taken; and

              (b)             in the case of steps taken before the enactment of that provision, that

the provision the effect of which was anticipated was modified

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before being enacted.

          (4)      In relation to provisions brought into force as mentioned in subsection (1) of

section 401 for the purpose of enabling specified functions to be carried out

by the Director or the Secretary of State—

              (a)             this paragraph has effect in relation to steps taken by the Director or

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the Secretary of State as it has in relation to steps taken by OFCOM;

and

              (b)             subsection (5) of that section applies in relation to steps taken by the

Director or the Secretary of State in anticipation of effect being given

to those provisions as it would apply to anything done by the

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Director or the Secretary of State for the purposes of, or in connection

with, the carrying out of those functions.

          (5)      Where a requirement is satisfied by virtue of this paragraph by steps taken

in anticipation of effect being given to a provision—

              (a)             representations made to or other things done in relation to OFCOM,

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or the Director or the Secretary of State, in consequence of the taking

of those steps, and

              (b)             any requirements framed by reference to the time at which those

steps were taken,

                   are to have effect as if the provision in question had come into force before

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those steps were taken.

General saving for agreements conditional on licensing

  3       (1)      This paragraph has effect where an agreement in force immediately before

the coming into force of a provision of this Act removing a requirement for

a relevant licence provides—

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              (a)             for the agreement to cease to have effect, or

              (b)             for it to be capable of being terminated,

                   if a party to the agreement ceases to hold a relevant licence of a particular

description, or so ceases in a manner described in the agreement.

          (2)      In this paragraph “relevant licence” means—

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              (a)             a licence under section 7 of the 1984 Act;

              (b)             a licence under Part 1 of the 1990 Act to provide a satellite television

service or a licensable programme service;

              (c)             a licence under that Part to provide the service mentioned in section

49(2) of that Act;

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              (d)             a licence under Part 2 of that Act to provide a local delivery service;

or

              (e)             a licence under Part 3 of that Act to provide a formerly regulated

radio service (within the meaning of section 248 of this Act).

          (3)      The agreement is not to cease to have effect, or to be capable of being

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terminated, by reason only of the coming into force of the provisions of this

Act under which the requirement for the licence is removed.

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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          (4)      In relation to times after the commencement of the provision of this Act

removing the requirement for a licence to provide a satellite television

service or a licensable programme service, a reference to such a licence in the

provision of the agreement in question is to have effect as a reference to a

licence granted or having effect as if granted as a licence to provide a

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television licensable content service.

          (5)      In relation to times after the commencement of the provision of this Act

removing the requirement for a licence to provide the service mentioned in

section 49(2) of the 1990 Act, a reference to such a licence in the provision of

the agreement in question is to have effect as a reference to a licence to

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provide the public teletext service.

          (6)      In relation to times after the commencement of the provision of this Act

removing the requirement for a licence to provide a licensable sound

programme service, a reference to such a licence in the provision of the

agreement in question is to have effect as a reference to a licence to provide

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a radio licensable content service.

          (7)      References in this paragraph to a provision having effect if a person ceases

to hold a licence include references—

              (a)             to a provision having effect if a licence of his expires without being

renewed; and

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              (b)             to a provision having effect if his licence is revoked.

          (8)      Expressions used in this paragraph and in Part 3 of this Act have the same

meanings in this paragraph as in that Part.

Orders under Part 2 of the Deregulation and Contracting Out Act 1994

  4       (1)      This paragraph applies where, immediately before functions under the

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Wireless Telegraphy Act 1949 (c. 54) are transferred under this Act to

OFCOM, an order is in force with respect to those functions under Part 2 of

the Deregulation and Contracting Out Act 1994 (c. 40).

          (2)      The order is to have effect in relation to times after the transfer—

              (a)             as if made in exercise of the power conferred by virtue of section 1(7)

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in relation to such of the functions of OFCOM under that Act of 1949

as are specified in the order;

              (b)             as if any power conferred on the Secretary of State by that order to

authorise the exercise by a person of functions under that Act of 1949

were conferred on OFCOM; and

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              (c)             as if an authorisation given by the Secretary of State in exercise of

that power were an authorisation given under that order by

OFCOM.

Pre-commencement proposals relating to universal service matters

  5       (1)                        Where a proposal for the designation of a person as a universal service

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provider, has been confirmed under regulation 4(10) of the Electronic

Communications (Universal Service) Regulations 2003 (S.I. 2003/33), the

designation is to have effect after the commencement of section 63 of this Act

as a designation in accordance with regulations under that section.

          (2)                        Where in any person’s case a proposal to set a condition has been confirmed

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under regulation 4(10) or 5(4) of those regulations, that condition is to have

 

 

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Schedule 18 — Transitional Provisions

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          (2)      effect after the commencement of that section as a condition set by OFCOM

under section 42 of this Act and applied to that person.

          (3)                        Where an appeal under regulation 6 of those regulations against a decision

under them has been brought but not concluded before the commencement

of section 189 of this Act—

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              (a)             that appeal is to be stayed or sisted as from the commencement of the

section; but

              (b)             the appellant is to have a new right of appeal under the section

against the decision (as it has effect by virtue of this paragraph) as

if—

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                    (i)                   it were the corresponding decision made by OFCOM under

Chapter 1 of Part 2 of this Act; and

                    (ii)                  it had been made immediately after the commencement of

the section.

          (4)                        Tribunal rules (within the meaning of Chapter 3 of Part 2 of this Act) may,

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in relation to an appeal stayed or sisted under sub-paragraph (3), make

transitional provision for requiring steps taken and things done for the

purposes of that appeal to be taken into account, to the extent set out in the

rules, in the case of an appeal brought by virtue of paragraph (b) of that sub-

paragraph.

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Local loop notifications

  6       (1)      This paragraph applies where, as a result of a market power determination

made by OFCOM for the purposes of a provision of Chapter 1 of Part 2 of

this Act, they conclude that a person who is for the time being LLU notified

is no longer a person falling to be so notified.

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          (2)      OFCOM must give a notification of their conclusion to—

              (a)             the Secretary of State; and

              (b)             the notified person.

          (3)      On receiving a notification under sub-paragraph (2) the Secretary of State

must withdraw the LLU notification of the person in question.

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          (4)      For the purposes of this paragraph a person is LLU notified if he is a person

who, for the purposes of Regulation (EC) No. 2887/2000 of the European

Parliament and of the Council on unbundled access to the local loop, is

notified to the European Commission as having significant market power in

an identified market, and “LLU notification” shall be construed accordingly.

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          (5)               Section 189 applies to a decision by OFCOM to give a notification under this

paragraph as it applies to a decision by them under Part 2 of this Act.

Savings for SMP licence conditions imposed under the 1984 Act

  7       (1)      This paragraph applies to a licence granted under section 7 of the 1984 Act

if OFCOM have given the holder of the licence a continuation notice.

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          (2)      A continuation notice is a notice that OFCOM consider that a condition of

the licence specified in the notice (a “licence condition”) is—

              (a)             a condition imposed by reason of the significant market power of the

holder of the licence in a market identified in the notice; or

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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              (b)             a condition corresponding to a condition that OFCOM have power

to set under Chapter 1 of Part 2 of this Act as an SMP apparatus

condition.

          (3)      OFCOM are not to give a continuation notice by virtue of sub-paragraph

(2)(a) except in relation to a licence condition that relates to matters

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mentioned in Article 16 of the Universal Service Directive or Article 7 of the

Access Directive.

          (4)      A continuation notice with respect to a licence condition—

              (a)             in the case of a condition falling within sub-paragraph (2)(b) must

identify the market by reference to which SMP conditions replacing

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the licence condition would have to be set; and

              (b)             in the case of any other condition, may identify that market.

          (5)                        OFCOM are not to give a continuation notice in relation to a licence

condition falling within sub-paragraph (2)(b) except to the extent that it

appears to them that the condition has effect in relation to the supply of

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electronic communications apparatus of a description supplied in the

market identified in the notice as the market by reference to which SMP

conditions replacing that condition would have to be set.

          (6)      Notwithstanding any repeal or revocation made by this Act,

              (a)             the licence under the 1984 Act, so far as it imposes a condition

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specified in a continuation notice, and

              (b)             any direction, determination or consent given or made for the

purposes of that condition,

                   shall remain in force for so long as the continuation notice is in force.

          (7)      A continuation notice shall cease to have effect if OFCOM give a notice to

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that effect to the holder of the licence.

          (8)      It shall be the duty of OFCOM to give a notice under sub-paragraph (7) as

soon as reasonably practicable after—

              (a)             they have carried out an analysis of the relevant market;

              (b)             they have determined whether or not to apply SMP conditions to the

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person concerned by reference to that market; and

              (c)             the SMP conditions which they have determined to so apply have

come into force.

          (9)               Where OFCOM—

              (a)             have given a person a continuation notice in relation to a condition

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falling within sub-paragraph (2)(b), and

              (b)             the notice has not already ceased to have effect as a result of a notice

under paragraph (7),

                   it shall be their duty to secure that an analysis of the relevant market is

carried out as soon as reasonably practicable.

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          (10)     In sub-paragraphs (8) and (9) “the relevant market” means—

              (a)             where the continuation notice relating to a licence condition

identifies the market OFCOM consider to be the market by reference

to which SMP conditions replacing the licence condition would have

to be set, that market; and

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              (b)             in any other case, the market identified in the continuation notice as

the market by reference to which the licence condition was set.

 

 

Communications Bill
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          (11)              Section 189 applies to a decision by OFCOM to give a notice under this

paragraph as it applies to a decision by them under Part 2 of this Act.

          (12)     In this paragraph “Access Directive”, “electronic communications

apparatus”, “SMP condition”, “SMP apparatus condition” and “Universal

Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this

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Act.

Pre-commencement proposals relating to market power determinations

  8       (1)               Where a proposal for—

              (a)             the identification of a market,

              (b)             the making of a market power determination, or

10

              (c)             the setting of conditions by reference to a proposal for a market

power determination,

                   has been confirmed under regulation 8 of the Electronic Communications

(Market Analysis) Regulations 2003 (S.I. 2003/330), the proposal is to have

effect, after the commencement of section 42 of this Act, in accordance with

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sub-paragraph (2).

          (2)                        The proposal is to have effect as follows—

              (a)             in the case of a proposal for identifying a market, as an identification

of a services market in accordance with and for the purposes of

section 76 of this Act;

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              (b)             in the case of a proposal for the making of a market power

determination, as a market power determination made in

accordance with and for the purposes of Chapter 1 of Part 2 of this

Act; and

              (c)             in the case of a proposal for setting conditions, as if the conditions

25

were SMP services conditions set under section 42 of this Act and

applied to the same person as the condition in the proposal.

          (3)                        Where an appeal under regulation 11 of those regulations against a decision

under them has been brought but not concluded before the commencement

of section 189 of this Act—

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              (a)             that appeal is to be stayed or sisted as from the commencement of the

section; but

              (b)             the appellant is to have a new right of appeal under the section

against the decision (as it has effect by virtue of this paragraph) as

if—

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                    (i)                   it were the corresponding decision made by OFCOM under

Chapter 1 of Part 2 of this Act; and

                    (ii)                  it had been made immediately after the commencement of

the section.

          (4)                        Tribunal rules (within the meaning of Chapter 3 of Part 2 of this Act) may,

40

in relation to an appeal stayed or sisted under sub-paragraph (3), make

transitional provision for requiring steps taken and things done for the

purposes of that appeal to be taken into account, to the extent set out in the

rules, in the case of an appeal brought by virtue of paragraph (b) of that sub-

paragraph.

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Schedule 18 — Transitional Provisions

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Savings for licence conditions relating to accounting

  9       (1)      This paragraph applies where a licence granted under section 7 of the 1984

Act contains conditions which impose requirements with respect to—

              (a)             the keeping of accounts or financial information; or

              (b)             the provision of accounts and financial information to the Director.

5

          (2)      OFCOM may give a notice to the holder of the licence as respects so much of

those conditions as relates to—

              (a)             the keeping of accounts for a period current at the time of the

abolition of licensing; and

              (b)             the provision of accounts and financial information in relation to any

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such period or in relation to periods ending before the abolition of

licensing.

          (3)      In the case of a licence granted otherwise than to a particular person, a notice

under this paragraph may be given to the licence holders by being published

in such manner as OFCOM consider appropriate for bringing it to their

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attention.

          (4)      Notwithstanding any repeal or revocation made by this Act—

              (a)             the licence under the 1984 Act is to continue in force to the extent that

it imposes requirements as respects which a notice has been given

under this paragraph; but

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              (b)             those requirements, so far as they require the provision of accounts

or information to the Director, are to have effect in relation to times

after the abolition of licensing, as requirements to provide the

accounts or information to OFCOM.

          (5)               Section 189 applies to a decision by OFCOM to give a notice under this

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paragraph as it applies to a decision by them under Part 2 of this Act.

Charges under Telecommunications Act licences

  10      (1)      Where any amount is required by a licence under section 7 of the 1984 Act to

be paid to the Director in respect of a period beginning before the abolition

of licensing, that liability is to have effect after the abolition of licensing as a

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liability to pay to OFCOM so much of that amount as does not relate to times

after the abolition of licensing.

          (2)      For the purpose of determining how much of an amount payable to the

Director relates to times after the abolition of licensing, an apportionment is

to be made according to how much of that period had expired before the

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abolition of licensing.

Enforcement of breaches of licence conditions

  11      (1)      This paragraph applies to—

              (a)             conditions in respect of which continuation notices have been given

under paragraph 7;

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              (b)             conditions in respect of which notices under paragraph 9 have been

given;

              (c)             liabilities under paragraph 10; and

              (d)             conditions of a licence under section 7 of the 1984 Act requiring

compliance by the licence holder with directions given by the

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Communications Bill
Schedule 18 — Transitional Provisions

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              (d)             Director under regulation 6 of the Telecommunications

(Interconnection) Regulations 1997 (S.I. 1997/2931).

          (2)      Notwithstanding any repeal or revocation made by this Act, after the

abolition of licensing, OFCOM are, for the purpose of enforcing the

conditions to which this paragraph applies, to have all the enforcement

5

powers previously exercisable by the Director under the 1984 Act.

          (3)      Those powers are to be exercisable in accordance with this paragraph

irrespective of whether the contraventions occurred before or after the

abolition of licensing.

          (4)      For the purpose of exercising those powers, references to the likelihood that

10

a person will again be in contravention of a condition include references to

whether he will be in contravention of any equivalent obligation imposed—

              (a)             by section 35 of this Act;

              (b)             by conditions set under section 42 of this Act; or

              (c)             by directions under section 187 of this Act.

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          (5)      OFCOM are not to exercise any powers conferred by virtue of this

paragraph if they consider that the exercise of those powers would be

incompatible with the requirements of the Directives.

          (6)      In this paragraph “enforcement powers” includes—

              (a)             the Director’s powers under sections 16 to 18 and 53 of the 1984 Act,

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and

              (b)             in the case of a licence issued to a particular person, every power of

his under the licence to require information for the purpose of

computing the amount of the liability to a charge.

          (7)      In this paragraph “the Directives” means the Authorisation Directive or any

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of the following Directives (as defined in Chapter 1 of Part 2 of this Act)—

              (a)             the Access Directive;

              (b)             the Framework Directive;

              (c)             the Universal Service Directive.

          (8)      In sub-paragraph (7) “the Authorisation Directive” means Directive 2002/

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20/EC of the European Parliament and of the Council on the authorisation

of electronic communications networks and services.

Saving for agreements having effect by reference to licensing regime

  12      (1)      This paragraph has effect where an agreement entered into for the purposes

of a condition of a licence under section 7 of the 1984 Act has effect

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immediately before the abolition of licensing subject to a provision which

entitles a party to it to terminate the agreement if he or another party ceases

to be a Schedule 2 public operator.

          (2)      The right of termination is not to be exercisable by reason of the effect of the

coming into force of any provision of this Act if—

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              (a)             a general condition,

              (b)             an access-related condition, or

              (c)             a provision made by or having effect as if made under an SMP

condition,

                   imposes requirements on one or both of the parties to the agreement that

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correspond to those for the purposes of which the agreement was originally

entered into.

 

 

 
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