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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 | 5 |
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 | 10 |
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 | 15 |
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). | 20 |
(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 | 25 |
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 | 30 |
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 | 35 |
3 The following functions of the Independent Television Commission are | |
transferred to OFCOM— | |
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(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; | 5 |
(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 | 10 |
(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 | 15 |
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 | 20 |
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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
transferred to OFCOM. | |
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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 | 5 |
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 | 10 |
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 | 15 |
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— | 20 |
(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 | 25 |
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 | 30 |
(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— | 35 |
(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. | |
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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; | 5 |
(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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
(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 | 30 |
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, | 35 |
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 | 40 |
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 | 45 |
scheme, as references to OFCOM. | |
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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 | 30 |
which 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 | 35 |
interests, rights or 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 | 40 |
scheme (including the one that gives rise to the liability) as makes provision | |
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— | 45 |
(a) where the claimant requires the matter to be determined in England | |
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. | 50 |
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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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