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Communications Bill


Communications Bill
Schedule 18 — Transitional Provisions

    539

 

relevant agreement for the purposes of paragraph 29 of the electronic

communications code.

          (7)      In this paragraph “the electronic communications code” has the same

meaning as in Chapter 1 of Part 2 of this Act.

Saving for guarantees of liabilities of telecommunications code operators

5

  16      (1)      This paragraph applies where, immediately before the abolition of licensing,

a person holding a licence under section 7 of the 1984 Act (“the operator”) —

              (a)             is a person to whom the telecommunications code applies in respect

of the running of a telecommunications system by him (“the

operator’s system”); and

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              (b)             in pursuance of a condition of his licence imposed for the purpose of

securing that sufficient funds are available to meet code-related

liabilities specified in the licence, is a party to any guarantee

arrangements.

          (2)               Arrangements are guarantee arrangements for the purposes of this

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paragraph if they are arrangements under which a person (the “guarantor”)

is obliged, in circumstances specified in the arrangements, to make

payments in respect of a failure by the operator to meet a code-related

liability specified in the licence.

          (3)      The guarantor’s obligation to make payments under the guarantee

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arrangements is not to arise by reason only of the abolition of licensing.

          (4)                        In relation to times after the abolition of licensing, the guarantee

arrangements are to have effect, notwithstanding the operator’s licence

having ceased to have effect on the abolition of licensing and subject to sub-

paragraph (6), as if the following references continued to have effect—

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              (a)             references in those arrangements to the code-related liabilities

specified in the licence; and

              (b)             (subject to sub-paragraph (5)(a)) references, for the purposes of any

provision identifying the circumstances in which payments are to be

made under the arrangements, to events specified in the licence.

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          (5)                        In relation to such times, those arrangements are also to have effect—

              (a)             as if references (directly or indirectly) to the revocation, or to the

expiration without renewal, of the operator’s licence were references

to the giving of a direction under this Act by virtue of which the

operator is prohibited from providing the whole or a part of his

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network; and

              (b)             as if references to the telecommunications code were references to

the electronic communications code.

          (6)                        The guarantor is not to be liable in respect of any liability arising in

connection with or as a result of activities carried on after the abolition of

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licensing except in so far as those activities are activities carried on for the

purposes of providing the operator’s network.

          (7)                        In this paragraph “code-related liabilities”, in relation to the operator, means

liabilities arising or incurred by him—

              (a)             by reason of the application to him of the telecommunications code;

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              (b)             by reason of its ceasing to apply to him; or

              (c)             otherwise in respect of activities carried on by him in connection

with running the operator’s system.

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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          (8)                        In this paragraph—

               “the electronic communications code” has the same meaning as in

Chapter 1 of Part 2 of this Act;

               “the operator’s network” means so much of any electronic

communications network provided by the operator as is a network

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in relation to which the electronic communications code applies in

the operator’s case by virtue of paragraph 15(3)(a) of this Schedule;

               “the telecommunications code” means the code set out in Schedule 2

to the 1984 Act (as it had effect immediately before the abolition of

licensing).

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Compulsory purchase

  17       Where—

              (a)             a compulsory purchase order made under section 34 or 35 of the 1984

Act,

              (b)             a vesting order, or an application for a vesting order, made under

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section 36 of that Act, or

              (c)             an authorisation given by the Secretary of State under section 37, 38

or 39 of that Act,

           is effective immediately before the commencement of Schedule 4 to this Act,

it is to have effect after the commencement of that Schedule as if made or

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given under that Schedule.

Notices under section 1D of the Wireless Telegraphy Act 1949

  18      (1)      This paragraph applies to procedures set out in a notice given by the

Secretary of State under section 1D of the Wireless Telegraphy Act 1949

(c. 54) and in force immediately before the commencement of sub-paragraph

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(4) of paragraph 8 of Schedule 17 to this Act.

          (2)      In relation to times after the commencement of that sub-paragraph, the

procedures are to have effect as if prescribed by OFCOM by regulations

under section 1D(3) of the Wireless Telegraphy Act 1949.

          (3)      So much of any notice having effect in accordance with this paragraph as

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authorises or requires anything to be done by or in relation to the Secretary

of State is to have effect in relation to times after the commencement of

paragraph 8 of Schedule 17 to this Act as if it authorised or required that

thing to be done by or in relation to OFCOM.

Notices under regulations under section 3 of the Wireless Telegraphy Act 1998

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  19      (1)      This paragraph applies to procedures set out in a notice issued by the

Secretary of State under regulations under section 3 of the Wireless

Telegraphy Act 1998 (c. 6) and in force immediately before the

commencement of section 164 of this Act.

          (2)      In relation to times after the commencement of section 164 of this Act, the

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procedures are to have effect as if prescribed by OFCOM by regulations

under section 3 of that Act.

          (3)      So much of any notice having effect in accordance with this paragraph as

authorises or requires anything to be done by or in relation to the Secretary

of State is to have effect in relation to times after the commencement of

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Communications Bill
Schedule 18 — Transitional Provisions

    541

 

section 164 of this Act as if it authorised or required that thing to be done by

or in relation to OFCOM.

Disputes about interconnection

  20      (1)      Where—

              (a)             before the revocation by this Act of the Telecommunications

5

(Interconnection) Regulations 1997 (S.I. 1997/2931) a dispute was

referred to the Director under regulation 6 of those regulations, and

              (b)             that dispute has not been resolved when the revocation comes into

force,

                   Chapter 3 of Part 2 of this Act (except sections 186 and 187) is to have effect

10

as if that dispute were a dispute which, immediately after the

commencement of section 182 of this Act, was referred to OFCOM under

that section.

          (2)               Where a dispute—

              (a)             has arisen or arises about anything occurring or existing before the

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time when the revocation of those regulations comes into force (“the

relevant time”),

              (b)             relates to matters disputes about which would (before that time)

have been referable to the Director under regulation 6,

              (c)             is neither a dispute which was referred to him before that time nor a

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dispute arising after that time which is referable to OFCOM under

section 182, and

              (d)             is referred to OFCOM after that time either during the transitional

period or in a case in which OFCOM are satisfied that the

circumstances that prevented the making of a reference before the

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end of that period are exceptional,

                   sub-paragraph (1) is to have effect as if the dispute were a dispute arising

before the relevant time in the case of which a reference to the Director had

been made under regulation 6 before that time.

          (3)                        Where OFCOM make a determination for resolving a dispute falling to be

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resolved in accordance with sub-paragraph (1) or (2)—

              (a)             their powers on making that determination are to be those which

would have been exercisable by the Director under those regulations

(instead of those under Chapter 3 of Part 2);

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

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compliance with directions given by the Director under regulation 6

of those regulations are to continue to have effect as if they also

applied to directions given by OFCOM by virtue of paragraph (a);

and

              (c)             paragraph 11 of this Schedule has effect as if the reference in sub-

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paragraph (1)(d) to directions given by the Director under that

regulation included a reference to directions given by OFCOM by

virtue of paragraph (a) of this sub-paragraph.

          (4)                                 But OFCOM are not to give a direction by virtue of sub-paragraph (3)(a)

containing provision which they would have no power to include in—

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              (a)                             a condition set under Chapter 1 of Part 2 of this Act; or

              (b)             a direction under section 187.

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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          (5)      Where the Director gave a direction under regulation 6 of those regulations

at any time before the coming into force of their revocation, the direction is

to continue, after the revocation comes into force, to have effect (and be

enforceable in accordance with paragraph 11 of this Schedule) to the extent

that it is continued in force under this paragraph.

5

          (6)      The direction is continued in force under this paragraph only where

OFCOM have at any time after the passing of this Act given notice to the

persons to whom it applies that it is continued in force.

          (7)      OFCOM are to give such a notice only if they consider that the direction

makes provision corresponding to that which they have power to include

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in—

              (a)             conditions set under Chapter 1 of Part 2 of this Act; or

              (b)             directions under section 187.

          (8)      OFCOM may at any time by notice to the person to whom it applies revoke

(in whole or in part) a direction which—

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              (a)                             was given by virtue of sub-paragraph (3)(a); or

              (b)                             is a direction to which a notice under sub-paragraph (6) relates.

          (9)               Where a direction which OFCOM have power to revoke under sub-

paragraph (8) makes provision corresponding to anything that OFCOM

have power to include in a condition set under Chapter 1 of Part 2 of this Act,

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it shall be their duty, as soon as reasonably practicable after giving the

direction or as the case may be the notice under sub-paragraph (6)—

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

to set such a condition for the purpose of replacing the direction; and

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

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under that Chapter for that purpose.

          (10)                       It shall be the duty of OFCOM—

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

sub-paragraph (9), but

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

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before the coming into force of that condition,

                   to give a notice under sub-paragraph (8) revoking the direction in question.

          (11)              The duties imposed by sub-paragraphs (9) and (10) apply only where

OFCOM have not previously revoked the direction in question.

          (12)              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.

          (13)              In this paragraph “transitional period” means the period which is the

transitional period (within the meaning of section 401) in relation to this

paragraph.

Appeals against wireless telegraphy and telecommunications decisions

40

  21      (1)      This paragraph applies where—

              (a)             a decision was made before the commencement of section 189;

              (b)             the decision has effect after the commencement of a provision of this

Act as a decision made by OFCOM, or is a decision not to do

something which (if done) would so have had effect; and

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              (c)             the decision is one against which an appeal was or could have been

brought under—

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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                    (i)                   section 1F of the Wireless Telegraphy Act 1949 (c. 54); or

                    (ii)                  section 46B of the 1984 Act.

          (2)               If no such appeal has been brought before the commencement of section 189

of this Act, that section applies to the decision as it applies to decisions by

OFCOM under Part 2 of this Act (or that Act of 1949), but as if that section

5

had been in force when the decision was made.

          (3)               If an appeal under section 1F of that Act of 1949 or section 46B of the 1984

Act—

              (a)             has been brought against the decision, but

              (b)             has not been concluded before the commencement of section 189 of

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this Act,

                   the court in which it was brought may stay or sist the appeal as from the

commencement of that section of this Act.

          (4)                        If the court stays or sists the appeal under sub-paragraph (3), the appellant

is to have a new right of appeal under section 189 against the decision as if

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(subject to sub-paragraph (7)) it were a decision to which that section applies

that had been made immediately after the commencement of that section.

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

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

transitional provision—

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              (a)             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 sub-paragraph (4); and

              (b)             for enabling the Tribunal in an appeal under sub-paragraph (4) to

give directions to OFCOM as to the carrying out of functions of theirs

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that are the same as or correspond to those in the course of carrying

out which the maker of the appealed decision made that decision.

          (6)                        If, in a case falling within sub-paragraph (3), the court does not stay or sist

the appeal—

              (a)             it must determine the appeal in the manner in which the Tribunal is

30

required under section 192 of this Act to determine an appeal under

section 189; but

              (b)             its powers on determining the appeal include a power to give

directions to OFCOM as to the carrying out of any functions of theirs

that correspond to those in the course of which the appealed decision

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was made.

          (7)                        On an appeal brought or continued under this paragraph against a decision,

the court or the Tribunal, in determining what was the appropriate action for

the maker of the decision to take, must determine that question according to

the law in force at the time when the decision was made.

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Section 94 of the Telecommunications Act 1984

  22      (1)      Subject to sub-paragraph (2), provisions of Schedule 17 to this Act amending

section 94 of the 1984 Act do not affect—

              (a)             the continuation, after the coming into force of the amendment, of

any duty of a person previously given a direction under that section

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to give effect to it; or

 

 

Communications Bill
Schedule 18 — Transitional Provisions

    544

 

              (b)             the power of the Secretary of State after the amendment comes into

force to make grants under subsection (6) of that section to such a

person.

          (2)      A direction under that section which was given to the Director before the

relevant transfer date shall have effect in relation to times on and after that

5

date as if it were a direction to OFCOM.

          (3)      In sub-paragraph (2) “the relevant transfer date” means the date of the

coming into force of the provisions of Schedule 17 to this Act substituting

“OFCOM” for “the Director” in section 94(8) of the 1984 Act.

Competition Commission: specialist panel members

10

  23       The persons who—

              (a)             have been appointed as members of the Competition Commission by

the Secretary of State under section 13(10) of the 1984 Act, and

              (b)             hold office immediately before the date on which section 191 comes

into force,

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           shall continue to hold office as members of the Competition Commission as

if they had been appointed to that office by the Secretary of State under

section 191(1).

Transitory amendments to telecommunications terms in Broadcasting Act 1990

  24      (1)               This paragraph has effect, in the case of each of the provisions of the 1990 Act

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to which it applies, in relation to times between—

              (a)             the commencement of Chapter 1 of Part 2 of this Act; and

              (b)             the commencement of so much of this Act (apart from this

paragraph) as amends or repeals that provision.

          (2)               The provisions of the 1990 Act set out in sub-paragraph (3) shall have effect

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(subject to sub-paragraph (4)) as if—

              (a)             for every reference to a telecommunication system there were

substituted a reference to an electronic communications network;

and

              (b)             for references to running such a system there were substituted

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references to providing it.

          (3)                                 Those provisions of the 1990 Act are—

              (a)             section 46 (licensable programme services);

              (b)             section 51(1)(a) (procedures for consideration of applications for

additional services licences);

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              (c)             section 72 (local delivery services);

              (d)             section 75 (procedures for consideration of applications for local

delivery licences);

              (e)             section 112 (licensable sound programme services);

              (f)             section 117(1)(a) (procedures for consideration of applications for

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additional services licences);

              (g)             section 181 (apparatus deemed to be apparatus for wireless

telegraphy).

          (4)                        Sections 46(2) (licensable programme services), 112(2) (licensable sound

programme services) and 201(2) (programme services) of the 1990 Act shall

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Communications Bill
Schedule 18 — Transitional Provisions

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each have effect as if for paragraph (b) there were substituted—

                    “(b)                      a service which satisfies the conditions in section 230(5) of the

Communications Act 2003;”.

          (5)                        In sections 48 and 114 of the 1990 Act (additional services), references to

electronic signals shall have effect as references to signals within the

5

meaning of section 29 of this Act.

          (6)      Section 75(2) of the 1990 Act (consultation with relevant licensing

authorities) shall have effect as if in paragraph (b) for the words “would be

required to be licensed” there were substituted “is a system which (but for

repeals made by the Communications Act 2003) would have been required

10

to be licensed”.

          (7)      In section 181 of the 1990 Act (apparatus deemed to be apparatus for

wireless telegraphy), “connected”—

              (a)             shall continue to be construed in accordance (notwithstanding its

repeal) with section 4 of the 1984 Act; but

15

              (b)             shall be so construed as if, in that section of the 1984 Act, a reference

to an electronic communications network were substituted for every

reference to a telecommunication system.

          (8)      Part 5 of Schedule 2 to the 1990 Act (restriction on holding of licences by

operators of public telecommunication systems) and the Broadcasting

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(Restrictions on the Holding of Licences) Order 1991 (S.I. 1991/1176) shall

have effect as if references to a national public telecommunications operator

were references to a person who provides an electronic communications

network so as to make it available for use by members of the public in the

whole, or substantially the whole, of the United Kingdom.

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Activities of the Welsh Authority

  25      (1)      No approval shall be required under section 202 for the continued provision

after the commencement of that section of any service that was being

provided by the Welsh Authority immediately before the commencement of

that section.

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          (2)      Where any activities are being carried on immediately before the

commencement of section 203 by the Welsh Authority, no approval is

required under that section in respect of the continued carrying on of the

activities by the Authority.

          (3)      Where any activities are being carried on immediately before the

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commencement of section 203 by an S4C company, no approval is required

under that section in respect of the carrying on after that commencement by

that company or another S4C company of those activities.

Gaelic Broadcasting

  26       The persons who are members of Comataidh Craolaidh Gaidhlig

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immediately before the date on which section 205 comes into force—

              (a)             shall continue to hold office as members of Seirbheis nam

Meadhanan Gàidhlig as if they had been appointed to that office by

OFCOM;

              (b)             shall hold and vacate office in accordance with the terms of their

45

appointment by the ITC;

 

 

 
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