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Communications Bill


Communications Bill
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              (a)             so much of it as authorises or requires anything to be done by or in

relation to the person from whom the transfer is made is to have

effect in relation to times after the coming into force of the transfer as

if it authorised or required that thing to be done by or in relation to

OFCOM; and

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              (b)             other references in the subordinate legislation, direction,

authorisation or notice to the person from whom the transfer is made

are to have effect, in relation to such times, as references to OFCOM.

Steps taken in anticipation of passing or coming into force of Act

  2       (1)      This paragraph applies where the Secretary of State or OFCOM is or are

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required—

              (a)             by a provision of this Act, or

              (b)             by virtue of an amendment made by this Act,

                   to take steps before exercising a power or performing a duty.

          (2)      The requirement is capable of being satisfied by the taking of the steps in

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anticipation of effect being given to the provision by virtue of which the

power or duty is—

              (a)             conferred or imposed on the Secretary of State or OFCOM; or

              (b)             transferred to OFCOM.

          (3)      For the purposes of sub-paragraph (2) it is immaterial—

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              (a)             that the provision by virtue of which the power or duty is conferred,

imposed or transferred had not been enacted, or had not come into

force, when the steps were taken; and

              (b)             in the case of steps taken before the enactment of that provision, that

the provision the effect of which was anticipated was modified

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before being enacted.

          (4)      In relation to provisions brought into force as mentioned in subsection (1) of

section 397 for the purpose of enabling specified functions to be carried out

by the Director or the Secretary of State—

              (a)             this paragraph has effect in relation to steps taken by the Director or

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the Secretary of State as it has in relation to steps taken by OFCOM;

and

              (b)             subsection (5) of that section applies in relation to steps taken by the

Director or the Secretary of State in anticipation of effect being given

to those provisions as it would apply to anything done by the

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Director or the Secretary of State for the purposes of, or in connection

with, the carrying out of those functions.

          (5)      Where a requirement is satisfied by virtue of this paragraph by steps taken

in anticipation of effect being given to a provision—

              (a)             representations made to or other things done in relation to OFCOM,

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or the Director or the Secretary of State, in consequence of the taking

of those steps, and

              (b)             any requirements framed by reference to the time at which those

steps were taken,

                   are to have effect as if the provision in question had come into force before

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those steps were taken.

 

 

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General saving for agreements conditional on licensing

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

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

a relevant licence provides—

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

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

                   if a party to the agreement ceases to hold a relevant licence of a particular

description, or so ceases in a manner described in the agreement.

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

              (a)             a licence under section 7 of the 1984 Act;

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

service or a licensable programme service;

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

49(2) of that Act;

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

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or

              (e)             a licence under Part 3 of that Act to provide licensable sound

programme services.

          (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

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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

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

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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

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

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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

removing the requirement for a licence to provide a licensable sound

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

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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

to hold a licence include references—

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

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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

meanings in this paragraph as in that Part.

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

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

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

 

 

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

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

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as are specified in the order;

              (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

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that power were an authorisation given under that order by

OFCOM.

Local loop notifications

  5       (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.

Savings for SMP licence conditions imposed under the 1984 Act

  6       (1)      This paragraph applies to a licence granted under section 7 of the 1984 Act

if OFCOM have given the holder of the licence a continuation notice.

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          (2)      A continuation notice is a notice that OFCOM consider that a condition of

the licence specified in the notice (a “licence condition”) is—

              (a)             a condition imposed by reason of the significant market power of the

holder of the licence in a market identified in the notice; or

              (b)             a condition corresponding to a condition that OFCOM have power

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to set under Chapter 1 of Part 2 of this Act as an SMP apparatus

condition.

          (3)      OFCOM are not to give a continuation notice by virtue of sub-paragraph

(2)(a) except in relation to a licence condition that relates to matters

mentioned in Article 16 of the Universal Service Directive or Article 7 of the

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Access Directive.

          (4)      A continuation notice with respect to a licence condition—

              (a)             in the case of a condition falling within sub-paragraph (2)(b) must

identify a market for electronic communications apparatus which

appears to OFCOM to be the market for the purpose of regulating

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which the condition has effect; and

 

 

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              (b)             in that or any other case, may identify the market OFCOM consider

to be the market by reference to which SMP conditions replacing the

licence condition would have to be set.

          (5)      Notwithstanding any repeal or revocation made by this Act,

              (a)             the licence under the 1984 Act, so far as it imposes a condition

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specified in a continuation notice, and

              (b)             any direction, determination or consent given or made for the

purposes of that condition,

                   shall remain in force for so long as the continuation notice is in force.

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

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that effect to the holder of the licence.

          (7)      It shall be the duty of OFCOM to give a notice under sub-paragraph (6) as

soon as reasonably practicable after—

              (a)             they have carried out an analysis of the relevant market;

              (b)             they have determined whether or not to apply SMP conditions to the

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person concerned by reference to that market; and

              (c)             the SMP conditions which they have determined to so apply have

come into force.

          (8)      In sub-paragraph (7) “the relevant market” means—

              (a)             where the continuation notice relating to a licence condition

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identifies the market OFCOM consider to be the market by reference

to which SMP conditions replacing the licence condition would have

to be set, that market; and

              (b)             in any other case, the market identified in the continuation notice as

the market by reference to which the licence condition was set.

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

apparatus”, “SMP condition”, “SMP apparatus condition” and “Universal

Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this

Act.

Savings for licence conditions relating to accounting

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

Act contains conditions which impose requirements with respect to—

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

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

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

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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

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

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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

attention.

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

 

 

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              (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

              (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

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after the abolition of licensing, as requirements to provide the

accounts or information to OFCOM.

Charges under Telecommunications Act licences

  8       (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

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

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

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

abolition of licensing.

Enforcement of breaches of licence conditions

  9       (1)      This paragraph applies to—

              (a)             conditions in respect of which continuation notices have been given

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under paragraph 6;

              (b)             conditions in respect of which notices under paragraph 7 have been

given;

              (c)             liabilities under paragraph 8; and

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

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compliance by the licence holder with directions given by the

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 the

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conditions to which this paragraph applies, to have all the enforcement

powers previously exercisable by the Director under the 1984 Act.

          (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.

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          (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

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

              (a)             by section 34 of this Act;

              (b)             by conditions set under section 41 of this Act; or

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              (c)             by directions under section 185 of this Act.

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

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—

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              (a)             the Director’s powers under sections 16 to 18 and 53 of the 1984 Act,

and

              (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.

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          (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)—

              (a)             the Access Directive;

              (b)             the Framework Directive;

              (c)             the Universal Service Directive.

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          (8)      In sub-paragraph (7) “the Authorisation Directive” means Directive 2002/

20/EC of the European Parliament and of the Council on the authorisation

of electronic communications networks and services.

Saving for agreements having effect by reference to licensing regime

  10      (1)      This paragraph has effect where an agreement entered into for the purposes

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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

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

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coming into force of any provision of this Act if—

              (a)             a general condition,

              (b)             an access-related condition, or

              (c)             a provision made by or having effect as if made under an SMP

condition,

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                   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

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

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operator were references to the provider of a public electronic

communications network.

          (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).

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          (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.

Fees for approvals for the purposes of licence conditions

  11      (1)      This paragraph has effect where a general condition set under section 41 of

this Act requires apparatus to be approved by reference to a standard

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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

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

 

 

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          (3)      Fees charged under this section 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

into the Consolidated Fund.

5

          (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.

Allocated telephone numbers

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  12      (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

general conditions such as are mentioned in section 54 of this Act.

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          (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 57

of this Act.

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

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

20

purposes of the licence conditions is a communications provider.

          (4)      The power by virtue of section 54 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

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

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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

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

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of section 102 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.

          (2)      That person shall be treated after the commencement of section 102 of this

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

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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—

              (a)             was included immediately before the commencement of section 102

of this Act in the telecommunication system which was the

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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.

          (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—

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              (a)             in relation to telecommunication apparatus, or

 

 

 
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