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(4) Where any agreement, document, process or instrument of any description | |
has effect, in relation to anything transferred by means of a transfer scheme, | |
as referring (whether expressly or by implication)— | |
(a) to a member or to an officer of a pre-commencement regulator,or | |
(b) to an officer of the Secretary of State, | 5 |
that agreement, document, process or instrument shall have effect so far as | |
necessary for the purposes of the transfers effected by the scheme and in | |
consequence of them, as referring instead to the person mentioned in sub- | |
paragraph (5). | |
(5) That person is— | 10 |
(a) the person nominated for the purposes of the transfer by OFCOM; or | |
(b) in default of a nomination, the member or employee of OFCOM who | |
most closely corresponds to the member or officer originally referred | |
to. | |
(6) Nothing in sub-paragraph (3) or (4) is to apply in relation to any reference in | 15 |
an enactment or in subordinate legislation. | |
Retrospective modification of a transfer scheme | |
3 (1) If at any time after the coming into force of a transfer scheme it appears to | |
the Secretary of State that it is appropriate to do so, he may by order provide | |
for the scheme to be deemed to have come into force with such modifications | 20 |
(including modifications retrospective to the time of the coming into force of | |
the scheme) as may be provided for in the order. | |
(2) The power under this paragraph to provide by order for the modification of | |
a transfer scheme shall be exercisable for the purpose only of making | |
provision that could have been made by the scheme. | 25 |
(3) Before making an order under this paragraph the Secretary of State must | |
consult OFCOM. | |
Compensation | |
4 (1) Where, in consequence of any provision included in a transfer scheme, the | |
interests, rights or liabilities of a third party are modified as mentioned in | 30 |
sub-paragraph (2), the third party is to be entitled to such compensation as | |
may be just in respect of— | |
(a) any diminution in the value of any of his interests or rights, or | |
(b) any increase in the burden of his liabilities, | |
which is attributable to that modification. | 35 |
(2) The modifications mentioned in sub-paragraph (1) are modifications by | |
virtue of which— | |
(a) an interest of the third party in any property is transformed into, or | |
replaced by— | |
(i) an interest in only part of that property; or | 40 |
(ii) separate interests in different parts of that property; | |
(b) a right of the third party against any of the pre-commencement | |
regulators or against the Secretary of State is transformed into, or | |
replaced by, two or more rights which do not include a right which, | |
on its own, is equivalent (disregarding the person against whom it is | 45 |
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(b) enforceable) to the right against that regulator or (as the case may be) | |
against the Secretary of State; or | |
(c) a liability of the third party to any of the pre-commencement | |
regulators or to the Secretary of State is transformed into, or replaced | |
by, two or more separate liabilities at least one of which is a liability | 5 |
enforceable by a person other than the person by whom it was | |
enforceable before being so transformed. | |
(3) Where— | |
(a) a third party would, apart from any provision of a transfer scheme, | |
have become entitled to, or to exercise, any interest or right arising or | 10 |
exercisable in respect of the transfer or creation in accordance with | |
such a scheme of any property, rights or liabilities, and | |
(b) the provisions of that scheme have the effect of preventing that | |
person’s entitlement to, or to exercise, that interest or right from | |
arising on any occasion in respect of anything mentioned in | 15 |
paragraph (a), and | |
(c) provision is not made by a transfer scheme for securing that an | |
entitlement to, or to exercise, that interest or right or an equivalent | |
interest or right, is preserved or created so as to arise in respect of the | |
first occasion when corresponding circumstances next occur after the | 20 |
coming into force of the transfers for which the scheme provides, | |
the third party is to be entitled to such compensation as may be just in | |
respect of the extinguishment of the interest or right. | |
(4) A liability to pay compensation under this paragraph shall fall on the persons | |
mentioned in sub-paragraph (5) who (as the case may be)— | 25 |
(a) have interests in the whole or any part of the property affected by the | |
modification in question, | |
(b) are subject to the rights of the person to be compensated which are affected | |
by the modification in question, | |
(c) are entitled to enforce the liabilities of the person to be compensated which | 30 |
are affected by that modification, or | |
(d) benefit from the extinguishment of the entitlement mentioned in sub- | |
paragraph (3), | |
and that liability shall be apportioned between those persons in such manner as may | |
be appropriate having regard to the extent of their respective interests, rights or | 35 |
liabilities or the extent of the benefit they respectively obtain from the | |
extinguishment. | |
(5) Those persons are the pre-commencement regulators and the Secretary of State. | |
(6) Sub-paragraph (4) shall have effect subject to so much of any transfer | |
scheme (including the one that gives rise to the liability) as makes provision | 40 |
for the transfer of any liability under that sub-paragraph to OFCOM. | |
(7) Any dispute as to whether, or as to the person by whom, any compensation | |
is to be paid under this paragraph, and any dispute as to the amount of | |
compensation to be paid by a person, shall be referred to and determined— | |
(a) where the claimant requires the matter to be determined in England | 45 |
and Wales or in Northern Ireland, by an arbitrator appointed by the | |
Lord Chancellor, or | |
(b) where the claimant requires the matter to be determined in Scotland, | |
by an arbiter appointed by the Lord President of the Court of Session. | |
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(8) In this paragraph “third party”, in relation to provisions capable of giving | |
rise to compensation under this paragraph, means any person other than— | |
(a) a pre-commencement regulator; and | |
(b) the Secretary of State. | |
Stamp duty | 5 |
5 (1) Stamp duty is not to be chargeable— | |
(a) on a transfer scheme; or | |
(b) on an instrument or agreement certified by the Secretary of State to | |
the Commissioners of Inland Revenue as made for the purposes of a | |
transfer scheme, or as made for purposes connected with such a | 10 |
scheme. | |
(2) But a transfer scheme, or an instrument or agreement so certified, is to be | |
treated as duly stamped only if— | |
(a) in accordance with section 12 of the Stamp Act 1891 (c. 39) it has been | |
stamped with a stamp denoting either that it is not chargeable to | 15 |
duty or that it has been duly stamped; or | |
(b) it is stamped with the duty to which it would be chargeable apart | |
from this paragraph. | |
Interpretation of Schedule | |
6 In this Schedule “transfer scheme” means a scheme made by a pre- | 20 |
commencement regulator or by the Secretary of State under section 26. | |
Schedule 3 | |
Section 102 | |
Amendments of Schedule 2 to the Telecommunications Act 1984 | |
Introductory | |
1 Schedule 2 to the Telecommunications Act 1984 (c. 12) (the | 25 |
telecommunications code) shall be amended as follows. | |
Meaning of conduit system, electronic communications apparatus, network or service | |
2 (1) In sub-paragraph (1) of paragraph 1 (interpretation of the code), after the | |
definitions of “bridleway” and “footpath” there shall be inserted— | |
“‘conduit’ includes a tunnel, subway, tube or pipe; | 30 |
‘conduit system’ means a system of conduits provided so as | |
to be available for use by providers of electronic | |
communications networks for the purposes of the | |
provision by them of their networks”. | |
(2) In that sub-paragraph, after the definition of “the court” there shall be | 35 |
inserted— | |
“‘electronic communications apparatus’ means— | |
(a) any apparatus (within the meaning of the | |
Communications Act 2003) which is designed or | |
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(a) adapted for use in connection with the provision of | |
an electronic communications network; | |
(b) any apparatus not falling within paragraph (a) | |
which is designed or adapted for use in connection | |
with the provision of an electronic communications | 5 |
network; | |
(c) any line; | |
(d) any conduit, structure, pole or other thing in, on, by | |
or from which any electronic communications | |
apparatus is or may be installed, supported, carried | 10 |
or suspended; | |
and references to the installation of electronic | |
communications apparatus are to be construed | |
accordingly; | |
‘electronic communications network’ has the same meaning | 15 |
as in the Communications Act 2003, and references to the | |
provision of such a network are to be construed in | |
accordance with the provisions of that Act; | |
‘electronic communications service’ has the same meaning as | |
in the Communications Act 2003, and references to the | 20 |
provision of such a service are to be construed in | |
accordance with the provisions of that Act;”. | |
(3) In that sub-paragraph, for the definition of “line” there shall be substituted— | |
“‘line’ means any wire, cable, tube, pipe or similar thing | |
(including its casing or coating) which is designed or | 25 |
adapted for use in connection with the provision of any | |
electronic communications network or electronic | |
communications service;”. | |
Meaning of operator and operator’s system | |
3 (1) In sub-paragraph (1) of paragraph 1 for the definitions of “the operator” and | 30 |
“the operator’s system” there shall be substituted— | |
“‘the operator’ means— | |
(a) where the code is applied in any person’s case by a | |
direction under section 102 of the Communications | |
Act 2003, that person, and | 35 |
(b) where it applies by virtue of section 102(3)(b) of | |
that Act, the Secretary of State or (as the case may | |
be) the Northern Ireland department in question; | |
‘the operator’s network’ means— | |
(a) in relation to an operator falling within paragraph | 40 |
(a) of the definition of ‘operator’, so much of any | |
electronic communications network or conduit | |
system provided by that operator as is not | |
excluded from the application of the code under | |
section 102(5) of the Communications Act 2003; | 45 |
and | |
(b) in relation to an operator falling within paragraph | |
(b) of that definition, the electronic | |
communications network which the Secretary of | |
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(b) State or the Northern Ireland department is | |
providing or proposing to provide;”. | |
(2) In that sub-paragraph— | |
(a) in the definition of “emergency works”, in paragraph (b), for “the | |
operator’s system” there shall be substituted “the operator’s | 5 |
network”; and | |
(b) in the definition of “the statutory purposes” for “establishing and | |
running the operator’s system” there shall be substituted “the | |
provision of the operator’s network”. | |
Provision of a conduit system | 10 |
4 After sub-paragraph (3) of paragraph 1 there shall be inserted— | |
“(3A) References in this code to the provision of a conduit system | |
include references to establishing or maintaining such a system.” | |
General amendments | |
5 In paragraphs 2 to 28— | 15 |
(a) for the words “telecommunication apparatus”, wherever occurring, | |
there shall be substituted “electronic communications apparatus”; | |
(b) for the words “telecommunication services”, wherever occurring, | |
there shall be substituted “electronic communications services”; | |
(c) for the words “a telecommunication system”, wherever occurring, | 20 |
there shall be substituted “an electronic communications network or | |
to electronic communications services”; and | |
(d) for the word “system”, wherever occurring (otherwise than in the | |
expression “telecommunication system”), there shall be substituted | |
“network”. | 25 |
Power to fly lines | |
6 In paragraph 10 (power to fly lines), after sub-paragraph (2) there shall be | |
inserted— | |
“(3) In this paragraph ‘business’ includes a trade, profession or | |
employment and includes any activity carried on by a body of | 30 |
persons (whether corporate or unincorporate).” | |
Power to require alteration of apparatus | |
7 In paragraph 20(4)(b) (alteration not to interfere with service provided by | |
the operator’s network), for “provided by” there shall be substituted “which | |
is or is likely to be provided using”. | 35 |
Undertaker’s works | |
8 In paragraph 23(10) (interpretation of provisions relating to undertakers’ | |
works), in paragraph (b) of the definition of “relevant undertaker”, for the | |
words “by a licence under section 7 of this Act” there shall be substituted “by | |
a direction under section 102 of the Communications Act 2003”. | 40 |
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Notices under the code | |
9 (1) In sub-paragraph (1) of paragraph 24 (notices in a form approved by the | |
Director), for “the Director” there shall be substituted “OFCOM”. | |
(2) For sub-paragraphs (2) to (4) of that paragraph there shall be substituted— | |
“(2) A notice required to be given to any person for the purposes of any | 5 |
provision of this code is not to be sent to him by post unless it is | |
sent by a registered post service or by recorded delivery. | |
(2A) For the purposes, in the case of such a notice, of section 380 of the | |
Communications Act 2003 and the application of section 7 of the | |
Interpretation Act 1978 in relation to that section, the proper | 10 |
address of a person is— | |
(a) if the person to whom the notice is to be given has | |
furnished the person giving the notice with an address for | |
service under this code, that address; and | |
(b) only if he has not, the address given by that section of the | 15 |
Act of 2003.” | |
(3) In sub-paragraph (6) of that paragraph— | |
(a) for “purporting to be signed by the Director” there shall be | |
substituted “issued by OFCOM”; and | |
(b) for “him” there shall be substituted “them”. | 20 |
Application of code to the Crown | |
10 In paragraph 26(4) (Crown application provision not to apply where the | |
telecommunication system is being provided or is to be provided by the | |
Secretary of State or a Northern Ireland department), for “has effect by virtue | |
of section 10(1)(b) of this Act” there shall be substituted “applies in the case | 25 |
of the Secretary of State or a Northern Ireland department by virtue of | |
section 102(3)(b) of the Communications Act 2003”. | |
Effect of agreements concerning sharing of apparatus | |
11 After paragraph 28, there shall be inserted— | |
“Effect of agreements concerning sharing of apparatus | 30 |
29 (1) This paragraph applies where— | |
(a) this code has been applied by a direction under section 102 | |
of the Communications Act 2003 in a person’s case; | |
(b) this code expressly or impliedly imposes a limitation on | |
the use to which electronic communications apparatus | 35 |
installed by that person may be put or on the purposes for | |
which it may be used; and | |
(c) that person is a party to a relevant agreement or becomes a | |
party to an agreement which (after he has become a party | |
to it) is a relevant agreement. | 40 |
(2) The limitation is not to preclude— | |
(a) the doing of anything in relation to that apparatus, or | |
(b) its use for particular purposes, | |
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to the extent that the doing of that thing, or the use of the | |
apparatus for those purposes, is in pursuance of the agreement. | |
(3) This paragraph is not to be construed, in relation to a person who | |
is entitled or authorised by or under a relevant agreement to share | |
the use of apparatus installed by another party to the agreement, | 5 |
as affecting any consent requirement imposed (whether by a | |
statutory provision or otherwise) on that person. | |
(4) In this paragraph— | |
‘consent requirement’, in relation to a person, means a | |
requirement for him to obtain consent or permission to or | 10 |
in connection with— | |
(a) the installation by him of apparatus; or | |
(b) the doing by him of any other thing in relation to | |
apparatus the use of which he is entitled or | |
authorised to share; | 15 |
‘relevant agreement’ means an agreement in relation to | |
electronic communications apparatus which— | |
(a) relates to the sharing by different parties to the | |
agreement of the use of that apparatus; and | |
(b) is an agreement that satisfies the requirements of | 20 |
sub-paragraph (5). | |
‘statutory provision’ means a provision of an enactment or | |
of an instrument having effect under an enactment. | |
(5) An agreement satisfies the requirements of this sub-paragraph | |
if— | 25 |
(a) every party to the agreement is a person in whose case this | |
code applies by virtue of a direction under section 102 of | |
the Communications Act 2003; or | |
(b) one or more of the parties to the agreement is a person in | |
whose case this code so applies and every other party to | 30 |
the agreement is a qualifying person. | |
(6) A person is a qualifying person for the purposes of sub-paragraph | |
(5) if he is either— | |
(a) a person who provides an electronic communications | |
network without being a person in whose case this code | 35 |
applies; or | |
(b) a designated provider of an electronic communications | |
service consisting in the distribution of a programme | |
service by means of an electronic communications | |
network. | 40 |
(7) In sub-paragraph (6)— | |
‘designated’ means designated by an order made by the | |
Secretary of State; | |
‘programme service’ has the same meaning as in the | |
Broadcasting Act 1990.” | 45 |
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