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Communications Bill


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

    361

 

adapted for use in connection with the provision of

an electronic communications network;

                             (b)                            any apparatus (within the meaning of that Act) that

is designed or adapted for a use which consists of

or includes the sending or receiving of

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communications or other signals that are

transmitted by means of an electronic

communications network;

                             (c)                            any line;

                             (d)                            any conduit, structure, pole or other thing in, on, by

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or from which any electronic communications

apparatus is or may be installed, supported, carried

or suspended;

                                         and references to the installation of electronic

communications apparatus are to be construed

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accordingly;

                                     ‘electronic communications network’ has the same meaning

as in the Communications Act 2003, and references to the

provision of such a network are to be construed in

accordance with the provisions of that Act;

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                                     ‘electronic communications service’ has the same meaning as

in the Communications Act 2003, and references to the

provision of such a service are to be construed in

accordance with the provisions of that Act;”.

          (3)      In that sub-paragraph, for the definition of “line” there shall be substituted—

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                                     “‘line’ means any wire, cable, tube, pipe or similar thing

(including its casing or coating) which is designed or

adapted for use in connection with the provision of any

electronic communications network or electronic

communications service;”.

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          (4)               In that sub-paragraph, after the definition of “road” there shall be inserted—

                                      “‘signal’ has the same meaning as in section 29 of the

Communications Act 2003;”.

Meaning of operator and operator’s system

  3       (1)      In sub-paragraph (1) of paragraph 1 for the definitions of “the operator” and

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“the operator’s system” there shall be substituted—

                                     “‘the operator’ means—

                             (a)                            where the code is applied in any person’s case by a

direction under section 103 of the Communications

Act 2003, that person; and

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                             (b)                            where it applies by virtue of section 103(3)(b) of

that Act, the Secretary of State or (as the case may

be) the Northern Ireland department in question;

                                     ‘the operator’s network’ means—

                             (a)                            in relation to an operator falling within paragraph

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(a) of the definition of ‘operator’, so much of any

electronic communications network or conduit

system provided by that operator as is not

excluded from the application of the code under

 

 

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

    362

 

section 103(5) of the Communications Act 2003;

and

                             (b)                            in relation to an operator falling within paragraph

(b) of that definition, the electronic

communications network which the Secretary of

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State or the Northern Ireland department is

providing or proposing to provide;”.

          (2)      In that sub-paragraph—

              (a)             in the definition of “emergency works”, in paragraph (b), for “the

operator’s system” there shall be substituted “the operator’s

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network”; and

              (b)             in the definition of “the statutory purposes” for “establishing and

running the operator’s system” there shall be substituted “the

provision of the operator’s network”.

Provision of a conduit system

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  4        After sub-paragraph (3) of paragraph 1 there shall be inserted—

                           “(3A)                  References in this code to the provision of a conduit system

include references to establishing or maintaining such a system.”

General amendments

  5        In paragraphs 2 to 28—

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              (a)             for the words “telecommunication apparatus”, wherever occurring,

there shall be substituted “electronic communications apparatus”;

              (b)             for the words “telecommunication services”, wherever occurring,

there shall be substituted “electronic communications services”;

              (c)             for the words “a telecommunication system”, wherever occurring,

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there shall be substituted “an electronic communications network or

to electronic communications services”; and

              (d)             for the word “system”, wherever occurring (otherwise than in the

expression “telecommunication system”), there shall be substituted

“network”.

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Power to fly lines

  6        In paragraph 10 (power to fly lines), after sub-paragraph (2) there shall be

inserted—

                           “(3)                  In this paragraph ‘business’ includes a trade, profession or

employment and includes any activity carried on by a body of

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persons (whether corporate or unincorporate).”

Power to require alteration of apparatus

  7        In paragraph 20(4)(b) (alteration not to interfere with service provided by

the operator’s network), for “provided by” there shall be substituted “which

is or is likely to be provided using”.

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

    363

 

Undertaker’s works

  8        In paragraph 23(10) (interpretation of provisions relating to undertakers’

works), in paragraph (b) of the definition of “relevant undertaker”, for the

words “by a licence under section 7 of this Act” there shall be substituted “by

a direction under section 103 of the Communications Act 2003”.

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Notices under the code

  9       (1)      In sub-paragraph (1) of paragraph 24 (notices in a form approved by the

Director), for “the Director” there shall be substituted “OFCOM”.

          (2)      For sub-paragraphs (2) to (4) of that paragraph there shall be substituted—

                           “(2)                  A notice required to be given to any person for the purposes of any

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provision of this code is not to be sent to him by post unless it is

sent by a registered post service or by recorded delivery.

                           (2A)                  For the purposes, in the case of such a notice, of section 387 of the

Communications Act 2003 and the application of section 7 of the

Interpretation Act 1978 in relation to that section, the proper

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address of a person is—

                      (a)                     if the person to whom the notice is to be given has

furnished the person giving the notice with an address for

service under this code, that address; and

                      (b)                     only if he has not, the address given by that section of the

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Act of 2003.”

          (3)      In sub-paragraph (6) of that paragraph—

              (a)             for “purporting to be signed by the Director” there shall be

substituted “issued by OFCOM”; and

              (b)             for “him” there shall be substituted “them”.

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Application of code to the Crown

  10       In paragraph 26(4) (Crown application provision not to apply where the

telecommunication system is being provided or is to be provided by the

Secretary of State or a Northern Ireland department), for “has effect by virtue

of section 10(1)(b) of this Act” there shall be substituted “applies in the case

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of the Secretary of State or a Northern Ireland department by virtue of

section 103(3)(b) of the Communications Act 2003”.

Effect of agreements concerning sharing of apparatus

  11       After paragraph 28, there shall be inserted—

“Effect of agreements concerning sharing of apparatus

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          29                 (1)                  This paragraph applies where—

                      (a)                     this code has been applied by a direction under section 103

of the Communications Act 2003 in a person’s case;

                      (b)                     this code expressly or impliedly imposes a limitation on

the use to which electronic communications apparatus

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installed by that person may be put or on the purposes for

which it may be used; and

 

 

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

    364

 

                      (c)                     that person is a party to a relevant agreement or becomes a

party to an agreement which (after he has become a party

to it) is a relevant agreement.

                           (2)                  The limitation is not to preclude—

                      (a)                     the doing of anything in relation to that apparatus, or

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                      (b)                     its use for particular purposes,

                                             to the extent that the doing of that thing, or the use of the

apparatus for those purposes, is in pursuance of the agreement.

                           (3)                  This paragraph is not to be construed, in relation to a person who

is entitled or authorised by or under a relevant agreement to share

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the use of apparatus installed by another party to the agreement,

as affecting any consent requirement imposed (whether by a

statutory provision or otherwise) on that person.

                           (4)                  In this paragraph—

                       ‘consent requirement’, in relation to a person, means a

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requirement for him to obtain consent or permission to or

in connection with—

                              (a)                             the installation by him of apparatus; or

                              (b)                             the doing by him of any other thing in relation to

apparatus the use of which he is entitled or

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authorised to share;

                       ‘relevant agreement’ means an agreement in relation to

electronic communications apparatus which—

                              (a)                             relates to the sharing by different parties to the

agreement of the use of that apparatus; and

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                              (b)                             is an agreement that satisfies the requirements of

sub-paragraph (5);

                       ‘statutory provision’ means a provision of an enactment or

of an instrument having effect under an enactment.

                           (5)                   An agreement satisfies the requirements of this sub-paragraph

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if—

                      (a)                     every party to the agreement is a person in whose case this

code applies by virtue of a direction under section 103 of

the Communications Act 2003; or

                      (b)                     one or more of the parties to the agreement is a person in

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whose case this code so applies and every other party to

the agreement is a qualifying person.

                           (6)                  A person is a qualifying person for the purposes of sub-paragraph

(5) if he is either—

                      (a)                     a person who provides an electronic communications

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network without being a person in whose case this code

applies; or

                      (b)                     a designated provider of an electronic communications

service consisting in the distribution of a programme

service by means of an electronic communications

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network.

                           (7)                   In sub-paragraph (6)—

                       ‘designated’ means designated by an order made by the

Secretary of State;

 

 

Communications Bill
Schedule 4 — Compulsory purchase and entry for exploratory purposes

    365

 

                       ‘programme service’ has the same meaning as in the

Broadcasting Act 1990.”

Schedule 4

Section 115

 

Compulsory purchase and entry for exploratory purposes

Interpretation

5

  1        In this Schedule—

                    “code operator” means a provider of an electronic communications

network in whose case the electronic communications code is

applied by a direction under section 103; and

                    “the operator’s network”, in relation to a code operator, means so much

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of the electronic communications network provided by the operator

as is not excluded from the application of the electronic

communications code under section 103(5).

General duties with respect to powers under Schedule

  2        In exercising his powers under this Schedule it shall be the duty of the

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Secretary of State to have regard, in particular, to each of the following—

              (a)             the duties imposed on OFCOM by sections 3 and 4;

              (b)             the need to protect the environment and, in particular, to conserve

the natural beauty and amenity of the countryside;

              (c)             the need to ensure that highways are not damaged or obstructed,

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and traffic not interfered with, to any greater extent than is

reasonably necessary;

              (d)             the need to encourage the sharing of the use of electronic

communications apparatus.

Compulsory purchase of land: England and Wales

25

  3       (1)      Subject to sub-paragraph (2), the Secretary of State may authorise a code

operator to purchase compulsorily any land in England and Wales which is

required by the operator—

              (a)             for, or in connection with, the establishment or running of the

operator’s network; or

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              (b)             as to which it can reasonably be foreseen that it will be so required.

          (2)      No order is to be made authorising a compulsory purchase under this

paragraph by a code operator except with OFCOM’s consent.

          (3)      This power to purchase land compulsorily includes power to acquire an

easement or other right over land by the creation of a new right.

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          (4)      The Acquisition of Land Act 1981 (c. 67) is to apply to any compulsory

purchase under this paragraph as if the code operator were a local authority

within the meaning of that Act.

          (5)      The provisions of the Town and Country Planning Act 1990 (c. 8) specified

in sub-paragraph (6) have effect in relation to land acquired compulsorily by

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Communications Bill
Schedule 4 — Compulsory purchase and entry for exploratory purposes

    366

 

a code operator under this paragraph as they have effect in relation to land

acquired compulsorily by statutory undertakers.

          (6)      Those provisions are—

              (a)             sections 238 to 240 (use and development of consecrated land and

burial ground);

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              (b)             section 241 (use and development of land for open spaces); and

              (c)             sections 271 to 274 (extinguishment of rights of way, and rights as to

apparatus, of statutory undertakers).

          (7)      Where a code operator has acquired land under this paragraph, he must not

dispose of that land, or of an interest or right in or over it, except with

10

OFCOM’s consent.

Compulsory purchase of land: Scotland

  4       (1)      Subject to sub-paragraph (2), the Secretary of State may authorise a code

operator to purchase compulsorily any land in Scotland which is required by

the operator—

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              (a)             for, or in connection with, the establishment or running of the

operator’s network; or

              (b)             as to which it can reasonably be foreseen that it will be so required.

          (2)      No order is to be made authorising a compulsory purchase under this

paragraph except with OFCOM’s consent.

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          (3)      This power to purchase land compulsorily includes power to acquire a

servitude or other right over land by the creation of a new right.

          (4)      The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947

(c. 42) applies to any compulsory purchase under this paragraph as if—

              (a)             the code operator were a local authority within the meaning of that

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Act; and

              (b)             this paragraph had been in force immediately before the

commencement of that Act.

          (5)      The provisions of the Town and Country Planning (Scotland) Act 1997 (c. 8)

specified in sub-paragraph (6) have effect in relation to land acquired

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compulsorily by a code operator under this paragraph as they have effect in

relation to land acquired compulsorily by statutory undertakers.

          (6)      Those provisions are—

              (a)             section 197 (provisions as to churches and burial grounds);

              (b)             section 198 (use and development of land for open spaces); and

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              (c)             sections 224 to 227 (extinguishment of rights of way, and rights as to

apparatus, of statutory undertakers).

          (7)      Where a code operator has acquired land under this paragraph, he must not

dispose of that land, or of any interest or right in or over it, except with

OFCOM’s consent.

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Compulsory purchase of land: Northern Ireland

  5       (1)      Where a code operator proposes to acquire, otherwise than by agreement,

any land in Northern Ireland required by him—

              (a)             for, or in connection with, the establishment or running of the

operator’s network, or

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Communications Bill
Schedule 4 — Compulsory purchase and entry for exploratory purposes

    367

 

              (b)             as to which it can reasonably be foreseen that it will be so required,

                   he may, with OFCOM’s consent, apply to the Secretary of State for an order

vesting that land in him.

          (2)      On such an application the Secretary of State is to have power to make such

an order.

5

          (3)      This power to acquire land compulsorily includes power to acquire an

easement or other right over land by the creation of a new right.

          (4)      Where a code operator has acquired land under this paragraph, he must not

dispose of that land, or of any interest or right in or over it, except with

OFCOM’s consent.

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          (5)      The following provisions—

              (a)             Schedule 6 to the Local Government Act (Northern Ireland) 1972 (c. 9

(N.I.)) (acquisition of land by vesting order), and

              (b)             Schedule 8 to the Health and Personal Social Services (Northern

Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (provisions as to

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inquiries),

                   have effect for the purposes of the acquisition of land by means of a vesting

order under this paragraph as they have effect for the purposes of that Act

and that Order but subject to the modifications set out in sub-paragraph (6).

          (6)      Those modifications are—

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              (a)             for any reference to the Department substitute a reference to the

Secretary of State;

              (b)             for any reference to the Act or Order in question substitute a

reference to this Act;

              (c)             for any reference in Schedule 6 to the Local Government Act

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(Northern Ireland) 1972 to a council substitute a reference to the code

operator;

              (d)             in paragraph 6(2) of that Schedule, for the words from “the fund”

onwards substitute “funds of the code operator (in this Schedule

referred to as “the compensation fund”) and shall be discharged by

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payments made by the code operator”; and

              (e)             in paragraph 12(2) of that Schedule for “the clerk of the council”

substitute “such person as may be designated for the purposes of this

Schedule by the code operator”.

          (7)      The enactments for the time being in force relating to the assessment of

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compensation in respect of land vested in a district council by an order made

under Schedule 6 to the Local Government Act (Northern Ireland) 1972 are

to apply, subject to any necessary modifications, in relation to land vested in

a code operator by an order made under this paragraph.

          (8)      In this paragraph, “land” has the meaning assigned to it by section 45(1)(a)

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of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Entry on land for exploratory purposes: England and Wales

  6       (1)      A person—

              (a)             nominated by a code operator, and

              (b)             duly authorised in writing by the Secretary of State,

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                   may, at any reasonable time, enter upon and survey land in England and

Wales for the purpose of ascertaining whether the land would be suitable for

 

 

 
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