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Communications Bill


Communications Bill
Schedule 1 — Functions transferred to OFCOM

 354

 

Schedules

Schedule 1

Section 2

 

Functions transferred to OFCOM

Wireless telegraphy functions

  1       (1)      Subject to sub-paragraphs (2) and (3), the functions of the Secretary of State

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under the following enactments are transferred to OFCOM—

              (a)             the Wireless Telegraphy Act 1949 (c. 54);

              (b)             section 7 of the Wireless Telegraphy Act 1967 (c. 72) (restriction on

dealings in, and custody of, certain apparatus);

              (c)             Part 6 of the Telecommunications Act 1984 (c. 12) (provisions

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relating to wireless telegraphy);

              (d)             the Wireless Telegraphy Act 1998 (c. 6).

          (2)       The following functions remain functions of the Secretary of State—

              (a)             his functions under section 5 of the Wireless Telegraphy Act 1949

(misleading messages and interception and disclosure of wireless

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telegraphy messages);

              (b)             his functions under section 6 of that Act (regulations about apparatus

on board ships etc.);

              (c)             his functions under section 7 of that Act (powers as to wireless

personnel).

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          (3)      The functions of the Secretary of State under section 84 of the

Telecommunications Act 1984 (approval of wireless telegraphy

apparatus)—

              (a)             if an order made by the Secretary of State under subsection (8A) of

that section is in force, shall be exercisable by him and by OFCOM in

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accordance with that order; and

              (b)             if there is no such order, shall be exercisable by OFCOM.

  2       (1)      The functions of the Secretary of State under section 7A of the Marine, &c.,

Broadcasting (Offences) Act 1967 (c. 41) (powers of enforcement of marine

offences under that Act) shall (with the following exception) be exercisable

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concurrently by the Secretary of State and OFCOM.

          (2)      The exception is the functions of the Secretary of State under that section so

far as they relate to powers exercisable by virtue of subsection (7) of that

section.

Functions in relation to the licensing etc. of television services

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  3        The following functions of the Independent Television Commission are

transferred to OFCOM—

 

 

Communications Bill
Schedule 1 — Functions transferred to OFCOM

    355

 

              (a)             the function of granting or awarding licences under Part 1 of the 1990

Act (independent television services) and Part 1 of the 1996 Act

(digital television broadcasting);

              (b)             the Commission’s functions under those Parts in relation to, and to

applications for, licences under either of those Parts;

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              (c)             the function of securing the provision of a nationwide system of

television broadcasting services known as Channel 3;

              (d)             the function of securing the provision of the television broadcasting

service known as Channel 5;

              (e)             the Commission’s functions under section 32 of the 1990 Act

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(nomination of bodies eligible for appointment as news provider).

Functions in relation to C4C

  4        The functions conferred on the Independent Television Commission by or

under section 23 of the 1990 Act and under Schedule 3 to that Act

(appointment of members of C4C and related administrative functions) are

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transferred to OFCOM.

Functions in relation to the licensing of radio services

  5        The following functions of the Radio Authority are transferred to OFCOM—

              (a)             the function of granting or awarding licences under Part 3 of the 1990

Act (independent radio services) and Part 2 of the 1996 Act (digital

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sound broadcasting); and

              (b)             the Authority’s functions under those Parts in relation to licences

granted or awarded under those Parts.

Functions in relation to the proscription of foreign satellite services

  6        The functions of the Independent Television Commission and of the Radio

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Authority under section 177 of the 1990 Act (proscription of foreign satellite

services) are transferred to OFCOM.

Functions in relation to Gaelic broadcasting

  7        The functions of the Independent Television Commission under sections 183

and 184 of the 1990 Act and the functions of that Commission and of the

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Radio Authority under Schedule 19 to that Act (Gaelic broadcasting) are

transferred to OFCOM.

Functions in relation to the national television archive

  8        The functions of the Independent Television Commission under section 185

of the 1990 Act (maintenance of the national television archive) are

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transferred to OFCOM.

Warrants to enter and search premises to enforce broadcasting licences provisions

  9        The functions of the Independent Television Commission and of the Radio

Authority under section 196(1) of the 1990 Act (entry and search for the

purposes of enforcing licensing provisions of the 1990 and 1996 Acts) are

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transferred to OFCOM.

 

 

Communications Bill
Schedule 2 — Transfer schemes

    356

 

Variation of existing Channel 3 and Channel 5 licences

  10       Any power to vary licences which is conferred on the Independent

Television Commission by an order under section 28 of the 1996 Act is

transferred to OFCOM.

Reports for the purposes of the review of digital television broadcasting

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  11       The functions of the Independent Television Commission and of the Radio

Authority under sections 33 and 67 of the 1996 Act (reports to the Secretary

of State for the purposes of his review of digital broadcasting) are

transferred to OFCOM.

Functions in relation to reservation of digital capacity to the BBC

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  12       The function of the Secretary of State under section 49(4) of the 1996 Act

(reserving digital capacity on a local radio multiplex service for the BBC) is

transferred to OFCOM.

Functions in relation to listed events

  13       The functions of the Independent Television Commission under Part 4 of the

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1996 Act (functions in connection with listed events) are transferred to

OFCOM.

Functions relating to fairness and privacy in broadcasting

  14       The following functions of the Broadcasting Standards Commission under

Part 5 of the 1996 Act are transferred to OFCOM—

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              (a)             the Commission’s function of drawing up and from time to time

revising a code of practice under section 107 of that Act (codes of

practice relation to fairness and privacy); and

              (b)             their functions in relation to fairness complaints under that Part.

Schedule 2

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Section 27

 

Transfer schemes

Contents of transfer scheme

  1       (1)       A transfer scheme—

              (a)             shall set out the property, rights and liabilities to be transferred by

the scheme; and

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              (b)             may make incidental, supplemental, consequential and transitional

provision in connection with the transfer of that property and of

those rights and liabilities.

          (2)      The provisions of the scheme setting out the property, rights and liabilities

to be transferred may do so in either or both of the following ways—

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              (a)             by specifying them or describing them in particular; or

              (b)             by identifying them generally by reference to, or to a specific part of,

an undertaking from which they are to be transferred.

 

 

Communications Bill
Schedule 2 — Transfer schemes

    357

 

          (3)      The property, rights and liabilities that are to be capable of being transferred

by a transfer scheme include—

              (a)             property, rights and liabilities that would not otherwise be capable

of being transferred or assigned by the person from whom they are

transferred;

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              (b)             property acquired and rights and liabilities arising in the period after

the making of the scheme and before it comes into force;

              (c)             rights and liabilities arising subsequently in respect of matters

occurring in that period;

              (d)             property situated anywhere in the United Kingdom or elsewhere

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and rights and liabilities under the law of any part of the United

Kingdom or of any place outside the United Kingdom; and

              (e)             rights and liabilities under an enactment.

          (4)      The provision that may be made under sub-paragraph (1)(b) includes

provision for the creation in favour of a pre-commencement regulator, the

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Secretary of State or OFCOM of rights or liabilities over or in respect of

property transferred to OFCOM or property retained by a pre-

commencement regulator or the Secretary of State.

          (5)      The transfers to which effect may be given by a transfer scheme, and the

rights that may be created by means of such a scheme, include transfers that

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are to take effect, and rights that are to arise, in accordance with the scheme

as if there were—

              (a)             no such requirement to obtain a person’s consent or concurrence,

              (b)             no such liability in respect of any contravention of any other

requirement, and

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              (c)             no such interference with any interest or right,

                   as there would be, in the case of a transaction apart from this Act (whether

under any enactment or agreement or otherwise), by reason of any provision

having effect in relation to the terms on which a pre-commencement

regulator or the Secretary of State is entitled or subject to any property, right

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or liability.

Effect of transfer scheme

  2       (1)      Property transferred by a transfer scheme shall, on the coming into force of

the scheme, vest in OFCOM without further assurance.

          (2)      Where any transfer scheme comes into force, any agreement made,

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transaction effected or other thing done by or in relation to the person from

whom any transfers for which the scheme provides are made shall have

effect, so far as necessary for the purposes of those transfers, as if—

              (a)             it had been made, effected or done by or in relation to OFCOM; and

              (b)             OFCOM were the same person in law as the person from whom the

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transfer is made.

          (3)      Accordingly, references in any agreement, document, process or instrument

of any description to the person from whom anything is transferred by

means of a transfer scheme shall have effect, so far as necessary for the

purpose of giving effect to the transfer from the coming into force of the

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scheme, as references to OFCOM.

 

 

Communications Bill
Schedule 2 — Transfer schemes

    358

 

          (4)      Where any agreement, document, process or instrument of any description

has effect, in relation to anything transferred by means of a transfer scheme,

as referring (whether expressly or by implication)—

              (a)             to a member or to an officer of a pre-commencement regulator,or

              (b)             to an officer of the Secretary of State,

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                   that agreement, document, process or instrument shall have effect so far as

necessary for the purposes of the transfers effected by the scheme and in

consequence of them, as referring instead to the person mentioned in sub-

paragraph (5).

          (5)      That person is—

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              (a)             the person nominated for the purposes of the transfer by OFCOM; or

              (b)             in default of a nomination, the member or employee of OFCOM who

most closely corresponds to the member or officer originally referred

to.

          (6)      Nothing in sub-paragraph (3) or (4) is to apply in relation to any reference in

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an enactment or in subordinate legislation.

Retrospective modification of a transfer scheme

  3       (1)      If at any time after the coming into force of a transfer scheme it appears to

the Secretary of State that it is appropriate to do so, he may by order provide

for the scheme to be deemed to have come into force with such modifications

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(including modifications retrospective to the time of the coming into force of

the scheme) as may be provided for in the order.

          (2)      The power under this paragraph to provide by order for the modification of

a transfer scheme shall be exercisable for the purpose only of making

provision that could have been made by the scheme.

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          (3)      Before making an order under this paragraph the Secretary of State must

consult OFCOM.

Compensation

  4       (1)      Where, in consequence of any provision included in a transfer scheme, the

interests, rights or liabilities of a third party are modified as mentioned in

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sub-paragraph (2), the third party is to be entitled to such compensation as

may be just in respect of—

              (a)             any diminution in the value of any of his interests or rights, or

              (b)             any increase in the burden of his liabilities,

                   which is attributable to that modification.

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          (2)      The modifications mentioned in sub-paragraph (1) are modifications by

virtue of which—

              (a)             an interest of the third party in any property is transformed into, or

replaced by—

                    (i)                   an interest in only part of that property; or

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                    (ii)                  separate interests in different parts of that property;

              (b)             a right of the third party against any of the pre-commencement

regulators or against the Secretary of State is transformed into, or

replaced by, two or more rights which do not include a right which,

on its own, is equivalent (disregarding the person against whom it is

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Communications Bill
Schedule 2 — Transfer schemes

    359

 

enforceable) to the right against that regulator or (as the case may be)

against the Secretary of State; or

              (c)             a liability of the third party to any of the pre-commencement

regulators or to the Secretary of State is transformed into, or replaced

by, two or more separate liabilities at least one of which is a liability

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enforceable by a person other than the person by whom it was

enforceable before being so transformed.

          (3)      Where—

              (a)             a third party would, apart from any provision of a transfer scheme,

have become entitled to, or to exercise, any interest or right arising or

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exercisable in respect of the transfer or creation in accordance with

such a scheme of any property, rights or liabilities, and

              (b)             the provisions of that scheme have the effect of preventing that

person’s entitlement to, or to exercise, that interest or right from

arising on any occasion in respect of anything mentioned in

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paragraph (a), and

              (c)             provision is not made by a transfer scheme for securing that an

entitlement to, or to exercise, that interest or right or an equivalent

interest or right, is preserved or created so as to arise in respect of the

first occasion when corresponding circumstances next occur after the

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coming into force of the transfers for which the scheme provides,

                            the third party is to be entitled to such compensation as may be just in

respect of the extinguishment of the interest or right.

          (4)      A liability to pay compensation under this paragraph shall fall on the

persons mentioned in sub-paragraph (5) who (as the case may be)—

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              (a)             have interests in the whole or any part of the property affected by the

modification in question,

              (b)             are subject to the rights of the person to be compensated which are

affected by the modification in question,

              (c)             are entitled to enforce the liabilities of the person to be compensated

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which are affected by that modification, or

              (d)             benefit from the extinguishment of the entitlement mentioned in

sub-paragraph (3),

                            and that liability shall be apportioned between those persons in such

manner as may be appropriate having regard to the extent of their respective

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interests, rights or liabilities or the extent of the benefit they respectively

obtain from the extinguishment.

          (5)      Those persons are the pre-commencement regulators and the Secretary of

State.

          (6)      Sub-paragraph (4) shall have effect subject to so much of any transfer

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scheme (including the one that gives rise to the liability) as makes provision

for the transfer of any liability under that sub-paragraph to OFCOM.

          (7)      Any dispute as to whether, or as to the person by whom, any compensation

is to be paid under this paragraph, and any dispute as to the amount of

compensation to be paid by a person, shall be referred to and determined—

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              (a)             where the claimant requires the matter to be determined in England

and Wales or in Northern Ireland, by an arbitrator appointed by the

Lord Chancellor, or

              (b)             where the claimant requires the matter to be determined in Scotland,

by an arbiter appointed by the Lord President of the Court of Session.

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Communications Bill
Schedule 3 — Amendments of Schedule 2 to the Telecommunications Act 1984

    360

 

          (8)      In this paragraph “third party”, in relation to provisions capable of giving

rise to compensation under this paragraph, means any person other than—

              (a)             a pre-commencement regulator; and

              (b)             the Secretary of State.

Stamp duty

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  5       (1)      Stamp duty is not to be chargeable—

              (a)             on a transfer scheme; or

              (b)             on an instrument or agreement certified by the Secretary of State to

the Commissioners of Inland Revenue as made for the purposes of a

transfer scheme, or as made for purposes connected with such a

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scheme.

          (2)      But a transfer scheme, or an instrument or agreement so certified, is to be

treated as duly stamped only if—

              (a)             in accordance with section 12 of the Stamp Act 1891 (c. 39) it has been

stamped with a stamp denoting either that it is not chargeable to

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duty or that it has been duly stamped; or

              (b)             it is stamped with the duty to which it would be chargeable apart

from this paragraph.

Interpretation of Schedule

  6        In this Schedule “transfer scheme” means a scheme made by a pre-

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commencement regulator or by the Secretary of State under section 27.

Schedule 3

Section 103

 

Amendments of Schedule 2 to the Telecommunications Act 1984

Introductory

  1        Schedule 2 to the Telecommunications Act 1984 (c. 12) (the

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telecommunications code) shall be amended as follows.

Meaning of conduit system, electronic communications apparatus, network or service

  2       (1)       In sub-paragraph (1) of paragraph 1 (interpretation of the code), after the

definitions of “bridleway” and “footpath” there shall be inserted—

                                     “‘conduit’ includes a tunnel, subway, tube or pipe;

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                                     ‘conduit system’ means a system of conduits provided so as

to be available for use by providers of electronic

communications networks for the purposes of the

provision by them of their networks”.

          (2)      In that sub-paragraph, after the definition of “the court” there shall be

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inserted—

                                     “‘electronic communications apparatus’ means—

                             (a)                            any apparatus (within the meaning of the

Communications Act 2003) which is designed or

 

 

 
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