Office of Public Sector Information
SCHEDULE 18 continued
13 (1) This paragraph applies to—
(a) any provision to which effect is given, after the abolition of licensing, by a continuation notice under paragraph 9;
(b) conditions in respect of which notices under paragraph 11 have been given;
(c) liabilities under paragraph 12; and
(d) conditions of a licence under section 7 of the 1984 Act requiring 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 anything 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.
(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 38 of this Act;
(b) by conditions set under section 45 of this Act; or
(c) by directions under section 190 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—
(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.
(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.
(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.
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 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,
(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 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.
(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.
15 (1) This paragraph has effect where a general condition set under section 45 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 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 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.
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 general conditions such as are mentioned in section 58 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 61 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 purposes of the licence conditions is a communications provider.
(4) The power by virtue of section 58 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 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.
17 (1) Sub-paragraph (2) applies where, immediately before the coming into force of section 106 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 106 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—
(a) was included immediately before the commencement of section 106 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.
(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 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 106(3)(b) of this Act.
(5) A right which for the purposes of the code in Schedule 2 to the 1984 Act has 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.
(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 communications code.
(7) In this paragraph “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of this Act.
18 (1) This paragraph applies where, immediately before the abolition of licensing, 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 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”) 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.
(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-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 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 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 part of an electronic communications network—
(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 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 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—
(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—
“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 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).
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 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 given under that Schedule.
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 (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 (c. 54).
(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 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.
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 167 of this Act.
(2) In relation to times after the commencement of section 167 of this Act, the 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 section 167 of this Act as if it authorised or required that thing to be done by or in relation to OFCOM.
22 (1) Where—
(a) before the revocation by this Act of the Telecommunications (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,
Chapter 3 of Part 2 of this Act (except sections 189 and 190) is to have effect as if that dispute were a dispute which, immediately after the commencement of section 185 of this Act, was referred to OFCOM under that section.
(2) Where a dispute—
(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,
(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 185, 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 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.
(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);
(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
(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) 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 190.
(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 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 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
(b) directions under section 190.
(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.
(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)—
(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—
(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.
(11) The duties imposed by sub-paragraphs (9) and (10) apply only where OFCOM have not previously revoked the direction in question.
(12) Section 192 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 transitional period (within the meaning of section 408) in relation to this paragraph.
23 (1) This paragraph applies where—
(a) a decision was made before the commencement of section 192;
(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—
(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 192 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 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 192 of this Act,
the court in which it was brought may stay or sist the appeal as from the commencement of that section of this Act.
(4) If the court stays or sists the appeal under sub-paragraph (3), the appellant is to have a new right of appeal under section 192 against the decision as if (subject to sub-paragraph (7)) it were a decision to which that section applies that had been made immediately after the commencement of that section.
(5) Tribunal rules (within the meaning of Chapter 3 of Part 2 of this Act) may, in relation to an appeal stayed or sisted under sub-paragraph (3), make transitional provision—
(a) for requiring steps taken and things done for the purposes of that appeal to be taken into account, to the extent set out in the rules, in the case of an appeal brought by virtue of sub-paragraph (4); and
(b) for enabling the Tribunal in an appeal under sub-paragraph (4) to give directions to OFCOM as to the carrying out of functions of theirs that are the same as or correspond to those in the course of carrying out which the maker of the appealed decision made that decision.
(6) If, in a case falling within sub-paragraph (3), the court does not stay or sist the appeal—
(a) it must determine the appeal in the manner in which the Tribunal is required under section 195 of this Act to determine an appeal under section 192; but
(b) its powers on determining the appeal include a power to give directions to OFCOM as to the carrying out of any functions of theirs that correspond to those in the course of which the appealed decision was made.
(7) On an appeal brought or continued under this paragraph against a decision, the court or the Tribunal, in determining what was the appropriate action for the maker of the decision to take, must determine that question according to the law in force at the time when the decision was made.
24 (1) Subject to sub-paragraph (2), provisions of Schedule 17 to this Act amending section 94 of the 1984 Act do not affect—
(a) the continuation, after the coming into force of the amendment, of any duty of a person previously given a direction under that section to give effect to it; or
(b) the power of the Secretary of State after the amendment comes into force to make grants under subsection (6) of that section to such a person.
(2) A direction under that section which was given to the Director before the relevant transfer date shall have effect in relation to times on and after that date as if it were a direction to OFCOM.
(3) In sub-paragraph (2) “the relevant transfer date” means the date of the coming into force of the provisions of Schedule 17 to this Act substituting “OFCOM” for “the Director” in section 94(8) of the 1984 Act.
25 The persons who—
(a) have been appointed as members of the Competition Commission by the Secretary of State under section 13(10) of the 1984 Act, and
(b) hold office immediately before the date on which section 194 comes into force,
shall continue to hold office as members of the Competition Commission as if they had been appointed to that office by the Secretary of State under section 194(1).
26 (1) This paragraph has effect, in the case of each of the provisions of the 1990 Act to which it applies, in relation to times between—
(a) the commencement of Chapter 1 of Part 2 of this Act; and
(b) the commencement of so much of this Act (apart from this paragraph) as amends or repeals that provision.
(2) The provisions of the 1990 Act set out in sub-paragraph (3) shall have effect (subject to sub-paragraph (4)) as if—
(a) for every reference to a telecommunication system there were substituted a reference to an electronic communications network; and
(b) for references to running such a system there were substituted references to providing it.
(3) Those provisions of the 1990 Act are—
(a) section 46 (licensable programme services);
(b) section 51(1)(a) (procedures for consideration of applications for additional services licences);
(c) section 72 (local delivery services);
(d) section 75 (procedures for consideration of applications for local delivery licences);
(e) section 112 (licensable sound programme services);
(f) section 117(1)(a) (procedures for consideration of applications for additional services licences);
(g) section 181 (apparatus deemed to be apparatus for wireless telegraphy).
(4) Sections 46(2) (licensable programme services), 112(2) (licensable sound programme services) and 201(2) (programme services) of the 1990 Act shall each have effect as if for paragraph (b) there were substituted—
“(b) a service which satisfies the conditions in section 233(5) of the Communications Act 2003;”.
(5) In sections 48 and 114 of the 1990 Act (additional services), references to electronic signals shall have effect as references to signals within the meaning of section 32 of this Act.
(6) Section 75(2) of the 1990 Act (consultation with relevant licensing authorities) shall have effect as if in paragraph (b) for the words “would be required to be licensed” there were substituted “is a system which (but for repeals made by the Communications Act 2003) would have been required to be licensed”.
(7) In section 181 of the 1990 Act (apparatus deemed to be apparatus for wireless telegraphy), “connected”—
(a) shall continue to be construed in accordance (notwithstanding its repeal) with section 4 of the 1984 Act; but
(b) shall be so construed as if, in that section of the 1984 Act, a reference to an electronic communications network were substituted for every reference to a telecommunication system.
(8) Part 5 of Schedule 2 to the 1990 Act (restriction on holding of licences by operators of public telecommunication systems) and the Broadcasting (Restrictions on the Holding of Licences) Order 1991 (S.I. 1991/1176) shall have effect as if references to a national public telecommunications operator were references to a person who provides an electronic communications network so as to make it available for use by members of the public in the whole, or substantially the whole, of the United Kingdom.
27 (1) No approval shall be required under section 205 for the continued provision after the commencement of that section of any service that was being provided by the Welsh Authority immediately before the commencement of that section.
(2) Where any activities are being carried on immediately before the commencement of section 206 by the Welsh Authority, no approval is required under that section in respect of the continued carrying on of the activities by the Authority.
(3) Where any activities are being carried on immediately before the commencement of section 206 by an S4C company, no approval is required under that section in respect of the carrying on after that commencement by that company or another S4C company of those activities.
28 The persons who are members of Comataidh Craolaidh Gaidhlig immediately before the date on which section 208 comes into force—
(a) shall continue to hold office as members of Seirbheis nam Meadhanan Gàidhlig as if they had been appointed to that office by OFCOM;
(b) shall hold and vacate office in accordance with the terms of their appointment by the ITC;
(c) shall hold office for the period for which they were appointed by the ITC; and
(d) after the end of that period, shall be eligible for re-appointment as members of Seirbheis nam Meadhanan Gàidhlig.
29 (1) The continuance in force of the Multiplex Licence (Broadcasting of Programmes in Gaelic) Order 1996 (S.I. 1996/2758) made under section 32 of the 1996 Act is not affected by the amendment of that section by Schedule 15 to this Act.
(2) But in relation to times after the television transfer date, that order shall have effect as if—
(a) the reference in that order to the ITC were a reference to OFCOM; and
(b) the reference to the application of section 28 of the 1996 Act to a frequency were omitted.
30 (1) Subject to any express provision made by this Act in relation to a particular description of Broadcasting Act licence, neither—
(a) the transfer from a pre-commencement regulator to OFCOM of the function of granting or awarding such licences or of any other power exercisable in relation to such licences, nor
(b) any other modification by or by virtue of this Act of the power to grant or award such licences or of a provision having effect in relation to such licences,
shall affect the continuing validity of a licence by or under which the provision of a service is authorised immediately before the coming into force of the transfer or modification.
(2) Accordingly, such a licence shall continue to have effect, after the coming into force of the transfer or modification—
(a) on the same terms and conditions and for the same period as it would have done if this Act had not been passed; but
(b) as if, in relation to times after the coming into force of any relevant transfer of functions to OFCOM, every reference in the licence to a pre-commencement regulator were a reference to OFCOM.
(3) Sub-paragraph (2) is subject to the following provisions of this Act—
(a) those under which a licence is to have effect as if the period for which it is granted were the period determined under this Act; and
(b) those under which the conditions of a licence fall to be varied for the purpose of imposing a condition required by this Act.
(4) Anything done at any time before the relevant transfer date under or for the purposes of enforcing any provision of a Broadcasting Act licence is to have effect in relation to times on or after that date—
(a) to the extent that it was done by or in relation to the ITC or Radio Authority, and
(b) so far as necessary for preserving its effect or for facilitating the taking of further action by OFCOM,
as a thing done by or in relation to OFCOM.
(5) In sub-paragraph (4) “relevant transfer date”—
(a) in relation to licences under Part 1 of the 1990 Act or Part 1 of the 1996 Act, means the television transfer date; and
(b) in relation to licences under Part 3 of the 1990 Act or Part 2 of the 1996 Act, means the radio transfer date.
Communications Act 2003