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Communications Bill


Communications Bill
Schedule 18 — Transitional Provisions

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

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

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

              (a)             by section 36 of this Act;

              (b)             by conditions set under section 43 of this Act; or

              (c)             by directions under section 188 of this Act.

          (5)      OFCOM are not to exercise any powers conferred by virtue of this

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paragraph if they consider that the exercise of those powers would be

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

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

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)—

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              (a)             the Access Directive;

              (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

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of electronic communications networks and services.

Saving for agreements having effect by reference to licensing regime

  14      (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

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entitles a party to it to terminate the agreement if he or another party ceases

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,

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              (b)             an access-related condition, or

              (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

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entered into.

          (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.

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Communications Bill
Schedule 18 — Transitional Provisions

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

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.

5

Fees for approvals for the purposes of licence conditions

  15      (1)      This paragraph has effect where a general condition set under section 43 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

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

          (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

15

into the Consolidated Fund.

          (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.

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Allocated telephone numbers

  16      (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

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general conditions such as are mentioned in section 56 of this Act.

          (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 59

of this Act.

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

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

purposes of the licence conditions is a communications provider.

          (4)      The power by virtue of section 56 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

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

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

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

of section 104 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.

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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          (2)      That person shall be treated after the commencement of section 104 of this

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

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—

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              (a)             was included immediately before the commencement of section 104

of this Act in the telecommunication system which was the

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.

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          (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—

              (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

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much of the apparatus or system as is electronic communications apparatus

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

Schedule to this Act by virtue of this paragraph or section 104(3)(b) of this

Act.

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

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

conferred for purposes connected with the provision of a

telecommunication service is to have effect after the commencement of that

Schedule as conferred for the purposes of the corresponding electronic

communications service.

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          (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

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

relevant agreement for the purposes of paragraph 29 of the electronic

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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

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

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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

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

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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

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

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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.

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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

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-

5

paragraph (7), as if the following references continued to have effect—

              (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

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

          (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 his becoming subject to a direction by virtue of which he is

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prohibited from providing the whole or a part of his network; and

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

the electronic communications code.

          (6)               In sub-paragraph (5) the reference to a person’s becoming subject to a

direction by virtue of which he is prohibited from providing the whole or a

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part of an electronic communications network or electronic communications

service—

              (a)             does not include a reference to his becoming 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

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confirmed; but

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

fixed period, does include a reference to the confirmation of a

direction that would otherwise have had to be revoked.

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

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

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

purposes of providing the operator’s network.

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

liabilities arising or incurred by him—

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

              (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.

          (9)                        In this paragraph—

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               “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

in relation to which the electronic communications code applies in

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the operator’s case by virtue of paragraph 17(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).

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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Compulsory purchase

  19       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

5

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

10

given under that Schedule.

Notices under section 1D of the Wireless Telegraphy Act 1949

  20      (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

15

(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

20

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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  21      (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 165 of this Act.

          (2)      In relation to times after the commencement of section 165 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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section 165 of this Act as if it authorised or required that thing to be done by

or in relation to OFCOM.

Disputes about interconnection

  22      (1)      Where—

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

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(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,

 

 

Communications Bill
Schedule 18 — Transitional Provisions

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                   Chapter 3 of Part 2 of this Act (except sections 187 and 188) is to have effect

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

commencement of section 183 of this Act, was referred to OFCOM under

that section.

          (2)               Where a dispute—

5

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

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,

10

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

dispute arising after that time which is referable to OFCOM under

section 183, 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

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circumstances that prevented the making of a reference before the

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.

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

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);

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

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

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              (c)             paragraph 13 of this Schedule has effect as if the reference in sub-

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)

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

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

              (b)             a direction under section 188.

          (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

40

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

enforceable in accordance with paragraph 13 of this Schedule) to the extent

that it is continued in force under this paragraph.

          (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

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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

in—

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

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Schedule 18 — Transitional Provisions

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              (b)             directions under section 188.

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

(in whole or in part) a direction which—

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

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

5

          (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,

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)—

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              (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

under that Chapter for that purpose.

          (10)                       It shall be the duty of OFCOM—

15

              (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

before the coming into force of that condition,

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

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

OFCOM have not previously revoked the direction in question.

          (12)              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.

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

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transitional period (within the meaning of section 405) in relation to this

paragraph.

Appeals against wireless telegraphy and telecommunications decisions

  23      (1)      This paragraph applies where—

              (a)             a decision was made before the commencement of section 190;

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              (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

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

brought under—

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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 190

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

40

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 190 of

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this Act,

 

 

 
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