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Communications Bill


Communications Bill
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              (a)             does not include a reference to his being subject to a direction

imposing a prohibition for a fixed period of less than eighteen

months or to a direction that will have to be revoked if not

confirmed; but

              (b)             except in the case of a direction imposing a prohibition for such a

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fixed period, does include a reference to his being subject to a

direction which would have had to be revoked if not confirmed but

which has been confirmed.

          (5)                        This paragraph does not apply in the case of a term or condition of an

agreement if, on an application to the court by one or both of the parties to

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the agreement, the court directs—

              (a)             that this paragraph is not to apply; or

              (b)             that it is to apply with such modifications, or subject to the payment

of such compensation, as the court may specify in the direction.

          (6)                        In determining whether to give a direction under sub-paragraph (5) or what

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modifications or compensation to specify in such a direction the court must

have regard to the following—

              (a)             whether either or both of the parties to the agreement contemplated

the abolition of the licensing requirements of the 1984 Act when they

entered into the agreement; and

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              (b)             the extent (if any) to which the provisions of this paragraph represent

what it would have been reasonable for the parties to have agreed

had they both known at that time what provision was to be made by

this Act and when it was to come into force.

          (7)                        For the purposes of this paragraph references to a licence under section 7 of

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the 1984 Act include references to a licence under that section of a particular

description.

          (8)                        In this paragraph “the court” means the High Court or the Court of Session.

General saving for agreements conditional on certain Broadcasting Act licences

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

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

a relevant Broadcasting Act licence provides—

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

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

                   if a party to the agreement ceases to hold a relevant Broadcasting Act licence

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of a particular description, or so ceases in a manner described in the

agreement.

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

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

service or a licensable programme service;

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

49(2) of that Act;

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

or

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

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radio service (within the meaning of section 249 of this Act).

 

 

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

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

Act under which the requirement for the licence is removed.

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

removing the requirement for a licence to provide a satellite television

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

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

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

television licensable content service.

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

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

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

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

provide the public teletext service.

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

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removing the requirement for a licence to provide a licensable sound

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

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

a radio licensable content service.

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

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to hold a licence include references—

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

renewed; and

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

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

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meanings in this paragraph as in that Part.

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

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

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

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

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

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

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

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

as are specified in the order;

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

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

were conferred on OFCOM; and

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

that power were an authorisation given under that order by

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OFCOM.

Pre-commencement proposals relating to universal service matters

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

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

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

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designation is to have effect after the commencement of section 64 of this Act

as a designation in accordance with regulations under that section.

 

 

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

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

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

under section 43 of this Act and applied to that person.

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

5

under them has been brought but not concluded before the commencement

of section 190 of this Act—

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

section; but

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

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

if—

                    (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

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the section.

          (4)                        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 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

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

paragraph.

Local loop notifications

  8       (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

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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.

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

              (a)             the Secretary of State; and

              (b)             the notified person.

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

must withdraw the LLU notification of the person in question.

          (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

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notified to the European Commission as having significant market power in

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

          (5)               Section 190 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

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

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

          (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

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

 

 

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

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

(“the continued provision”)—

              (a)             regulates the provision of premium rate services; or

              (b)             falls within sub-paragraph (4).

5

          (4)      The continued provision falls within this sub-paragraph in so far as it

corresponds to provision of one or more of the following descriptions—

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

              (b)             provision authorised by section 71(2) or (4) for inclusion in access-

related conditions;

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

Service Directive or Article 7 of the Access Directive.

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

OFCOM have power to include in SMP conditions—

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

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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.

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

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

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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.

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

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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.

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

that effect to the holder of the licence.

          (10)              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

(5), is identified in that notice;

 

 

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              (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

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

condition for that purpose.

5

          (11)              In the case of every other continued provision falling within sub-paragraph

(4), 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

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

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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.

          (12)                       It shall be the duty of OFCOM—

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

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sub-paragraph (10) or (11), 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 (9) with respect to the continuation

notice.

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          (13)                       The duties imposed by sub-paragraphs (10) to (12) apply only where

OFCOM have not previously given a notice under sub-paragraph (9) with

respect to the continuation notice in question.

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

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

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

members of that class; and

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

paragraph (9) is to be given to members of that class were by its

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

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

affected by the notice.

          (15)              Section 190 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.

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

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apparatus”, “the provision of premium rate services”, “SMP condition”,

“SMP apparatus condition” and “Universal Service Directive” each has the

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

Pre-commencement proposals relating to market power determinations

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

40

              (a)             the identification of a market,

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

              (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

45

(Market Analysis) Regulations 2003 (S.I. 2003/330).

          (2)                        If, at any time after the commencement of section 43, 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 77 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 43 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 190 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—

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

Chapter 1 of Part 2 of this Act; and

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                    (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,

in relation to an appeal stayed or sisted under sub-paragraph (4), make

transitional provision for requiring steps taken and things done for the

35

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.

          (6)                        Section 190 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.

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          (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

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

Act contains conditions which impose requirements with respect to—

45

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

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

 

 

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

those conditions as relates to—

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

abolition of licensing; and

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

5

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

licensing.

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

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

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

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attention.

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

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

it imposes requirements as respects which a notice has been given

under this paragraph; but

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

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

after the abolition of licensing, as requirements to provide the

accounts or information to OFCOM.

          (5)               Section 190 applies to a decision by OFCOM to give a notice under this

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

Charges under Telecommunications Act licences

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

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

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

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

after the abolition of licensing.

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

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

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

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abolition of licensing.

Enforcement of breaches of licence conditions

  13      (1)      This paragraph applies to—

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

by a continuation notice under paragraph 9;

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              (b)             conditions in respect of which notices under paragraph 11 have been

given;

              (c)             liabilities under paragraph 12; and

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

compliance by the licence holder with directions given by the

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Director under regulation 6 of the Telecommunications

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

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

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

which this paragraph applies, to have all the enforcement powers

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previously exercisable by the Director under the 1984 Act.

 

 

 
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