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Communications Bill


Communications Bill
Part 6 — Miscellaneous and Supplemental

    336

 

 393   Transitional provision for anticipatory carrying out of functions

     (1)    This section applies where an order under section 395 bringing into force—

           (a)           a provision of Part 1, 2 or 6, or

           (b)           a provision of Chapter 1 of Part 5,

            states that that provision is brought into force at a particular time for the

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purpose only of enabling specified networks and services functions, or

specified spectrum functions, to be carried out during the transitional period

by the Director General of Telecommunications or the Secretary of State.

     (2)    In relation to times falling in the transitional period, that provision is to have

effect as if—

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           (a)           references in that provision to OFCOM, and

           (b)           references to OFCOM inserted by that provision in any other

enactment,

            were references, in accordance with subsection (3), to the Director General of

Telecommunications or to the Secretary of State.

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     (3)    The references have effect—

           (a)           as references to the Director General of Telecommunications to the

extent that the provision is brought into force for the purpose of

enabling specified networks and services functions to be carried out;

and

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           (b)           as references to the Secretary of State, to the extent that the provision is

brought into force for the purpose of enabling specified spectrum

functions to be carried out.

     (4)    An order bringing a provision into force as mentioned in subsection (1) may

include provision specifying the extent to which it is to be taken, for the

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purposes of subsection (3), to have been brought into force for the purpose of

enabling particular functions to be carried out.

     (5)    In relation to times after the end of the transitional period for a provision which

has been brought into force for enabling specified functions to be carried out

by the Director General of Telecommunications or the Secretary of State,

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anything which—

           (a)           was done, during that period, by or in relation to that Director or the

Secretary of State, and

           (b)           was so done for the purposes of, or in connection with, the carrying out

of those functions,

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            is to have effect as if had been done by or in relation to OFCOM.

     (6)    In this section “the transitional period”, in relation to a provision brought into

force as mentioned in subsection (1) by an order under section 395, means the

period which—

           (a)           begins with the time when it is so brought into force; and

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           (b)           ends with the time from which that order, or a subsequent order under

that section, brings the provision into force for the purpose of

conferring on OFCOM the functions in question.

     (7)    In this section “networks and services functions” means any of the following

functions of OFCOM under this Act—

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           (a)           their functions under sections 21 and 22;

           (b)           their functions under Chapter 1 of Part 2;

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

    337

 

           (c)           their functions under Chapter 3 of Part 2, except to the extent that those

functions relate to—

                  (i)                 disputes relating to rights or obligations conferred or imposed

by or under the enactments relating to the management of the

radio spectrum; or

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                  (ii)                decisions made under those enactments;

           (d)           their functions under Chapter 1 of Part 5, except to the extent that those

functions relate to broadcasting or related matters;

           (e)           their functions under Schedule 18 to this Act in relation to the abolition

of licensing (within the meaning of that Schedule).

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     (8)    In this section “spectrum functions” means—

           (a)           the functions under the enactments relating to the management of the

radio spectrum which by virtue of this Act are conferred on OFCOM;

and

           (b)           the functions conferred on OFCOM by so much of Chapter 3 of Part 2

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as relates to the disputes and decisions mentioned in subsection (7)(c).

 394   Application of enactments to territorial sea and other waters

     (1)    This section applies to—

           (a)           provision made by or under Part 2 of this Act;

           (b)           any provision of the enactments relating to the management of the

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radio spectrum that are not contained in that Part; and

           (c)           any provision of Chapter 1 of Part 5 of this Act so far as it relates to a

matter as respects which provision falling within paragraph (a) or (b) is

made.

     (2)    Her Majesty may by Order in Council provide—

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           (a)           for an area of the territorial sea to be treated, for the purposes of any

provision to which this section applies, as if it were situated in such part

of the United Kingdom as may be specified in the Order; and

           (b)           for jurisdiction with respect to questions arising in relation to the

territorial sea under any such provision to be conferred on courts in a

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part of the United Kingdom so specified.

     (3)    An Order in Council under section 11 of the Petroleum Act 1998 (c. 17)

(application of civil law to offshore installations etc.) may make provision for

treating—

           (a)           an installation with respect to which provision is made under that

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section and which is outside the territorial sea but in waters to which

that section applies, and

           (b)           waters within 500 metres of the installation,

            as if for the purposes of provisions to which this section applies, they were

situated in such part of the United Kingdom as is specified in the Order.

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     (4)    The jurisdiction conferred on a court by an Order in Council under this section

is in addition to any jurisdiction exercisable apart from this section by that or

any other court.

     (5)    Subsection (3) of section 387 applies to the power to make an Order in Council

under this section as it applies to any power of the Secretary of State to make

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an order under this Act, but as if references in that subsection to the Secretary

of State were references to Her Majesty in Council.

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

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     (6)    A statutory instrument containing an Order in Council under this section shall

be subject to annulment in pursuance of a resolution of either House of

Parliament.

     (7)    In this section—

                    “installation” includes any floating structure or device maintained on a

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station or by whatever means, and installations in transit;

                    “the territorial sea” means the territorial sea adjacent to the United

Kingdom.

 395   Short title, commencement and extent

     (1)    This Act may be cited as the Communications Act 2003.

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     (2)    This Act (except the provisions listed in subsection (3), which come into force

on the passing of this Act) shall come into force on such day as the Secretary of

State may by order appoint; and different days may be appointed under this

subsection for different purposes.

     (3)    Those provisions are sections 27(1) to (4) and (6) and 390 and this section.

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     (4)    This Act extends to Northern Ireland.

     (5)    Subject to subsection (6), Her Majesty may by Order in Council extend the

provisions of this Act, with such modifications as appear to Her Majesty in

Council to be appropriate, to any of the Channel Islands or to the Isle of Man.

     (6)    Subsection (5) does not authorise the extension to any place of a provision of

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this Act so far as it gives effect to an amendment of an enactment that is not

itself capable of being extended there in exercise of a power conferred on Her

Majesty in Council.

     (7)    Subsection (3) of section 387 applies to the power to make an Order in Council

under this section as it applies to any power of the Secretary of State to make

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an order under this Act, but as if references in that subsection to the Secretary

of State were references to Her Majesty in Council.

 

 

339

Communications Bill
Schedule 1 — Functions transferred to OFCOM

 

Schedules

Schedule 1

Section 2

 

Functions transferred to OFCOM

Wireless telegraphy functions

  1       (1)      Subject to sub-paragraphs (2) and (3), the functions of the Secretary of State

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under the following enactments are transferred to OFCOM—

              (a)             the Wireless Telegraphy Act 1949 (c. 54);

              (b)             section 7 of the Wireless Telegraphy Act 1967 (c. 72) (restriction on

dealings in, and custody of, certain apparatus);

              (c)             Part 6 of the Telecommunications Act 1984 (c. 12) (provisions

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relating to wireless telegraphy);

              (d)             the Wireless Telegraphy Act 1998 (c. 6).

          (2)       The following functions remain functions of the Secretary of State—

              (a)             his functions under section 5 of the Wireless Telegraphy Act 1949

(misleading messages and interception and disclosure of wireless

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telegraphy messages);

              (b)             his functions under section 6 of that Act (regulations about apparatus

on board ships etc.);

              (c)             his functions under section 7 of that Act (powers as to wireless

personnel).

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          (3)      The functions of the Secretary of State under section 84 of the

Telecommunications Act 1984 (approval of wireless telegraphy

apparatus)—

              (a)             if an order made by the Secretary of State under subsection (8A) of

that section is in force, shall be exercisable by him and by OFCOM in

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accordance with that order; and

              (b)             if there is no such order, shall be exercisable by OFCOM.

  2       (1)      The functions of the Secretary of State under section 7A of the Marine, &c.,

Broadcasting (Offences) Act 1967 (c. 41) (powers of enforcement of marine

offences under that Act) shall (with the following exception) be exercisable

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concurrently by the Secretary of State and OFCOM.

          (2)      The exception is the functions of the Secretary of State under that section so

far as they relate to powers exercisable by virtue of subsection (7) of that

section.

Functions in relation to the licensing etc. of television services

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  3        The following functions of the Independent Television Commission are

transferred to OFCOM—

 

 

Communications Bill
Schedule 1 — Functions transferred to OFCOM

    340

 

              (a)             the function of granting or awarding licences under Part 1 of the 1990

Act (independent television services) and Part 1 of the 1996 Act

(digital television broadcasting);

              (b)             the Commission’s functions under those Parts in relation to, and to

applications for, licences under either of those Parts;

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              (c)             the function of securing the provision of a nationwide system of

television broadcasting services known as Channel 3;

              (d)             the function of securing the provision of the television broadcasting

service known as Channel 5;

              (e)             the Commission’s functions under section 32 of the 1990 Act

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(nomination of bodies eligible for appointment as news provider).

Functions in relation to C4C

  4        The functions conferred on the Independent Television Commission by or

under section 23 of the 1990 Act and under Schedule 3 to that Act

(appointment of members of C4C and related administrative functions) are

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transferred to OFCOM.

Functions in relation to the licensing of radio services

  5        The following functions of the Radio Authority are transferred to OFCOM—

              (a)             the function of granting or awarding licences under Part 3 of the 1990

Act (independent radio services) and Part 2 of the 1996 Act (digital

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sound broadcasting); and

              (b)             the Authority’s functions under those Parts in relation to licences

granted or awarded under those Parts.

Functions in relation to the proscription of foreign satellite services

  6        The functions of the Independent Television Commission and of the Radio

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Authority under section 177 of the 1990 Act (proscription of foreign satellite

services) are transferred to OFCOM.

Functions in relation to Gaelic broadcasting

  7        The functions of the Independent Television Commission under sections 183

and 184 of the 1990 Act and the functions of that Commission and of the

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Radio Authority under Schedule 19 to that Act (Gaelic broadcasting) are

transferred to OFCOM.

Functions in relation to the national television archive

  8        The functions of the Independent Television Commission under section 185

of the 1990 Act (maintenance of the national television archive) are

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transferred to OFCOM.

Warrants to enter and search premises to enforce broadcasting licences provisions

  9        The functions of the Independent Television Commission and of the Radio

Authority under section 196(1) of the 1990 Act (entry and search for the

purposes of enforcing licensing provisions of the 1990 and 1996 Acts) are

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transferred to OFCOM.

 

 

Communications Bill
Schedule 2 — Transfer schemes

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Variation of existing Channel 3 and Channel 5 licences

  10       Any power to vary licences which is conferred on the Independent

Television Commission by an order under section 28 of the 1996 Act is

transferred to OFCOM.

Reports for the purposes of the review of digital television broadcasting

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  11       The functions of the Independent Television Commission and of the Radio

Authority under sections 33 and 67 of the 1996 Act (reports to the Secretary

of State for the purposes of his review of digital broadcasting) are

transferred to OFCOM.

Functions in relation to reservation of digital capacity to the BBC

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  12       The function of the Secretary of State under section 49(4) of the 1996 Act

(reserving digital capacity on a local radio multiplex service for the BBC) is

transferred to OFCOM.

Functions in relation to listed events

  13       The functions of the Independent Television Commission under Part 4 of the

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1996 Act (functions in connection with listed events) are transferred to

OFCOM.

Functions relating to fairness and privacy in broadcasting

  14       The following functions of the Broadcasting Standards Commission under

Part 5 of the 1996 Act are transferred to OFCOM—

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              (a)             the Commission’s function of drawing up and from time to time

revising a code of practice under section 107 of that Act (codes of

practice relation to fairness and privacy); and

              (b)             their functions in relation to fairness complaints under that Part.

Schedule 2

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Section 26

 

Transfer schemes

Contents of transfer scheme

  1       (1)       A transfer scheme—

              (a)             shall set out the property, rights and liabilities to be transferred by

the scheme; and

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              (b)             may make incidental, supplemental, consequential and transitional

provision in connection with the transfer of that property and of

those rights and liabilities.

          (2)      The provisions of the scheme setting out the property rights and liabilities to

be transferred may do so in either or both of the following ways—

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              (a)             by specifying them or describing them in particular; or

              (b)             by identifying them generally by reference to, or to a specific part of,

an undertaking from which they are to be transferred.

 

 

Communications Bill
Schedule 2 — Transfer schemes

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          (3)      The property, rights and liabilities that are to be capable of being transferred

by a transfer scheme include—

              (a)             property, rights and liabilities that would not otherwise be capable

of being transferred or assigned by the person from whom they are

transferred;

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              (b)             property acquired and rights and liabilities arising in the period after

the making of the scheme and before it comes into force;

              (c)             rights and liabilities arising subsequently in respect of matters

occurring in that period;

              (d)             property situated anywhere in the United Kingdom or elsewhere

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and rights and liabilities under the law of any part of the United

Kingdom or of any place outside the United Kingdom; and

              (e)             rights and liabilities under an enactment.

          (4)      The provision that may be made under sub-paragraph (1)(b) includes

provision for the creation in favour of a pre-commencement regulator, the

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Secretary of State or OFCOM of rights or liabilities over or in respect of

property transferred to OFCOM or property retained by a pre-

commencement regulator or the Secretary of State.

          (5)      The transfers to which effect may be given by a transfer scheme, and the

rights that may be created by means of such a scheme, include transfers that

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are to take effect, and rights that are to arise, in accordance with the scheme

as if there were—

              (a)             no such requirement to obtain a person’s consent or concurrence,

              (b)             no such liability in respect of any contravention of any other

requirement, and

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              (c)             no such interference with any interest or right,

                   as there would be, in the case of a transaction apart from this Act (whether

under any enactment or agreement or otherwise), by reason of any provision

having effect in relation to the terms on which a pre-commencement

regulator or the Secretary of State is entitled or subject to any property, right

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or liability.

Effect of transfer scheme

  2       (1)      Property transferred by a transfer scheme shall, on the coming into force of

the scheme, vest in OFCOM without further assurance.

          (2)      Where any transfer scheme comes into force, any agreement made,

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transaction effected or other thing done by or in relation to the person from

whom any transfers for which the scheme provides are made shall have

effect, so far as necessary for the purposes of those transfers, as if—

              (a)             it had been made, effected or done by or in relation to OFCOM; and

              (b)             OFCOM were the same person in law as the person from whom the

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transfer is made.

          (3)      Accordingly, references in any agreement, document, process or instrument

of any description to the person from whom anything is transferred by

means of a transfer scheme shall have effect, so far as necessary for the

purpose of giving effect to the transfer from the coming into force of the

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scheme, as references to OFCOM.

 

 

 
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