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Communications Bill


Communications Bill
Schedule 18 — Transitional Provisions

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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 licence conditions corresponding to SMP or access-related conditions

  7       (1)      This paragraph applies where OFCOM give a continuation notice to the

holder of a licence granted under section 7 of the 1984 Act.

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          (2)      A continuation notice is a notice that a provision contained in a condition of

the licence is to have effect, after the abolition of licensing—  

              (a)             to the extent specified in the notice; and

              (b)             subject to such modifications (if any) as may be so specified.

          (3)                        OFCOM are not to give a continuation notice except to the extent that they

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consider that provision to which it will give effect, as modified by the notice,

(“the continued provision”) corresponds to provision of one or more of the

following descriptions—

              (a)             provision that they have power to include in SMP conditions;

              (b)             provision authorised by section 70(2) or (4) for inclusion in access-

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related conditions;

              (c)             provision relating to matters mentioned in Article 16 of the Universal

Service Directive or Article 7 of the Access Directive.

          (4)                        A continuation notice relating to provision corresponding to anything that

OFCOM have power to include in SMP conditions—

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              (a)             may identify the market by reference to which an SMP condition

replacing the provision would have to be set; and

              (b)             in so far as the provision corresponds to anything that OFCOM have

power to include only in SMP apparatus conditions, must do so.

          (5)                        OFCOM are not to give a continuation notice relating to provision

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corresponding to anything that OFCOM have power to include only in SMP

apparatus conditions except to the extent that it has effect in relation to the

supply of electronic communications apparatus of a description supplied in

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

conditions replacing the continued provision would have to be set.

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          (6)               The modifications for which a continuation notice may provide—

 

 

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Schedule 18 — Transitional Provisions

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              (a)             must be confined to modifications for the purpose of securing that

the provision to which they relate continues to have effect for so long

as the notice is in force; but

              (b)             in the case of provision which is expressed to impose a requirement

to be met before the abolition of licensing, may include a

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modification under which that requirement must continue to be met

for so long as the notice remains in force.

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

              (a)                             the continued provision,

              (b)             every provision made by a direction, determination or consent given

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or made for the purposes of the continued provision, and

              (c)             so far as necessary for giving effect to anything mentioned in

paragraph (a) or (b), every provision made by or under the licence

under the 1984 Act that is not so mentioned,

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

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

that effect to the holder of the licence.

          (9)               Where the continued provision is one that OFCOM have power to include

only in an SMP apparatus condition, it shall be their duty, as soon as

reasonably practicable after giving the continuation notice—

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              (a)             to carry out an analysis of the market which, under sub-paragraph

(4), is identified in that notice;

              (b)             to take all other steps necessary for enabling them to decide whether

or not to set an SMP apparatus condition by reference to that market

for the purpose of replacing the continued provision; and

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              (c)             to decide whether or not to exercise their power to set such a

condition for that purpose.

          (10)              In the case of every other continued provision, it shall be OFCOM’s duty, as

soon as reasonably practicable after giving the continuation notice—

              (a)             to take all steps necessary for enabling them to decide whether or not

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to set a condition of any other description under Chapter 1 of Part 2

of this Act for the purpose of replacing the continued provision; and

              (b)             to decide whether or not to exercise their power to set a condition

under that Chapter for that purpose.

          (11)                       It shall be the duty of OFCOM—

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              (a)             as soon as reasonably practicable after making a decision required by

sub-paragraph (9) or (10), but

              (b)             in a case where that decision is a decision to set a condition, not

before the coming into force of that condition,

                   to give a notice under sub-paragraph (8) with respect to the continuation

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notice.

          (12)                       The duties imposed by sub-paragraphs (9) to (11) apply only where OFCOM

have not previously given a notice under sub-paragraph (8) with respect to

the continuation notice in question.

          (13)                       This paragraph has effect in the case of a licence granted under section 7 of

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the 1984 Act to persons of a particular class as if—

              (a)             references to the holder of that licence were references to the

members of that class; and

 

 

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Schedule 18 — Transitional Provisions

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              (b)             the manner in which a continuation notice or notice under sub-

paragraph (8) is to be given to members of that class were by its

publication in such manner as, in OFCOM’s opinion, is appropriate

for bringing it to the attention of the members of that class who are

affected by the notice.

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          (14)              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.

          (15)     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)               Sub-paragraph (2) has effect where a proposal for—

              (a)             the identification of a market,

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

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              (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).

          (2)                        If, at any time after the commencement of section 42, OFCOM—

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              (a)             are satisfied that a procedure has been followed in relation to the

proposal that satisfies the requirements of Article 7 of the

Framework Directive, and

              (b)             publish a notification to that effect in such manner as they consider

appropriate for bringing it to the attention of the persons who, in

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their opinion, are likely to be affected by the proposal,

                   the proposal (with such modifications, if any, as are specified in the

notification) is to have effect, from the publication of the notification, in

accordance with sub-paragraph (3).

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

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              (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;

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

determination, as a market power determination made in

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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

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

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

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          (4)                        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—

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

section; but

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              (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—

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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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.

          (5)                        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 (4), 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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          (6)                        Section 189 applies to a decision by OFCOM to publish a notification under

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

          (7)               In this paragraph “the Framework Directive” has the same meaning as in

Chapter 1 of Part 2 of this Act.

Savings for licence conditions relating to accounting

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  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.

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

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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

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

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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

attention.

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          (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

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

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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

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

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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

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

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after the abolition of licensing.

 

 

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Schedule 18 — Transitional Provisions

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          (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

abolition of licensing.

Enforcement of breaches of licence conditions

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  11      (1)      This paragraph applies to—

              (a)             any provision to which effect is given, after the abolition of licensing,

by a continuation notice under paragraph 7;

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

given;

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              (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

Director under regulation 6 of the Telecommunications

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

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

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

which this paragraph applies, to have all the enforcement powers

previously exercisable by the Director under the 1984 Act.

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

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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

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

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

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              (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.

          (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

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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;

and

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

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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

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

              (a)             the Access Directive;

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              (b)             the Framework Directive;

              (c)             the Universal Service Directive.

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

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

of electronic communications networks and services.

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Schedule 18 — Transitional Provisions

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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

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

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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—

              (a)             a general condition,

              (b)             an access-related condition, or

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              (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

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

entered into.

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          (3)      In any such case, the agreement shall have effect in relation to times after the

abolition of licensing as if references in the agreement to a Schedule 2 public

operator were references to the provider of a public electronic

communications network.

          (4)      In this paragraph “Schedule 2 public operator” has the same meaning as in

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Schedule 1 to the Telecommunications (Licence Modifications) (Standard

Schedules) Regulations 1999 (S.I. 1999/2450).

          (5)      Expressions used in this paragraph and in Chapter 1 of Part 2 of this Act

have the same meanings in this paragraph as in that Chapter.

Fees for approvals for the purposes of licence conditions

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  13      (1)      This paragraph has effect where a general condition set under section 42 of

this Act requires apparatus to be approved by reference to a standard

previously designated for the purposes of section 24(6) of the 1984 Act.

          (2)      The Secretary of State may by order provide for the charging of fees in

respect of the giving of approvals for the purposes of the condition.

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          (3)      Fees charged under this paragraph are be paid to the person giving the

approvals and, to the extent authorised by the Secretary of State, may be

retained by that person.

          (4)      To the extent that they are not retained by that person, the fees must be paid

into the Consolidated Fund.

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          (5)      Any order made under section 24(13) of the 1984 Act that is in force

immediately before the coming into force of the repeal of section 24 of that

Act shall have effect after the coming into force of the repeal as an order

made under this paragraph.

Allocated telephone numbers

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  14      (1)      Where immediately before the abolition of licensing telephone numbers are

allocated to a person holding a licence under section 7 of the 1984 Act for the

purposes of the conditions of that licence, those numbers shall be treated,

after the abolition of licensing as allocated to that person for the purposes of

general conditions such as are mentioned in section 55 of this Act.

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Schedule 18 — Transitional Provisions

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          (2)      An allocation having effect by virtue of sub-paragraph (1) may be

withdrawn by OFCOM at any time, but only in accordance with section 58

of this Act.

          (3)      An allocation shall only continue to have effect in accordance with this

paragraph for so long as the person to whom the allocation was made for the

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purposes of the licence conditions is a communications provider.

          (4)      The power by virtue of section 55 for general conditions to make provision

for the making of periodic payments in respect of the allocation of telephone

numbers shall be exercisable, at any time after the coming into force of that

section, in relation to an allocation having effect by virtue of this paragraph

10

as it has effect in relation to an allocation made under that section.

          (5)      Expressions used in this paragraph and in Chapter 1 of Part 2 of this Act

have the same meanings in this paragraph as in that Chapter.

Electronic communications code

  15      (1)      Sub-paragraph (2) applies where, immediately before the coming into force

15

of section 103 of this Act, the telecommunications code set out in Schedule 2

to the 1984 Act applies to a person by virtue of the provisions of his licence

under section 7 of that Act.

          (2)      That person shall be treated after the commencement of section 103 of this

Act as a person in whose case the electronic communications code applies by

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virtue of a direction given by OFCOM.

          (3)      The deemed direction shall be assumed to be one given in relation to so

much of any electronic communications network as—

              (a)             was included immediately before the commencement of section 103

of this Act in the telecommunication system which was the

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operator’s system for the purposes of the application of the code; or

              (b)             which would have been so included if it had been being provided at

that time.

          (4)      So much of the code in Schedule 2 to the 1984 Act as has effect immediately

before the commencement of Schedule 3 to this Act—

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              (a)             in relation to telecommunication apparatus, or

              (b)             in relation a telecommunication system,

                   is to have effect after the commencement of that Schedule in relation to so

much of the apparatus or system as is electronic communications apparatus

or the operator’s network for the purposes of the application of that

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Schedule to this Act by virtue of this paragraph or section 103(3)(b) of this

Act.

          (5)      A right which for the purposes of the code in Schedule 2 to the 1984 Act has

effect immediately before the commencement of Schedule 3 to this Act as

conferred for purposes connected with the provision of a

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telecommunication service is to have effect after the commencement of that

Schedule as conferred for the purposes of the corresponding electronic

communications service.

          (6)      Any agreement which, immediately before the repeal of the provisions

contained in section 10(3A) and (3B) of the 1984 Act or section 189 of the 1990

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Act, is a relevant agreement for the purposes of those provisions shall be

deemed in relation to times after the coming into force of that repeal to be a

 

 

 
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