Section 10: Modifications in relation to Welsh matters

59. This section provides for the power in section 8 to be exercised by the National Assembly for Wales, to the extent set out in subsections (3) and (4). That power is to be exercisable with the consent of the Secretary of State.

Part III Miscellaneous and supplemental

Section 11: Modification of licences by the Director

60. The EC Telecommunications Services Licensing Directive (97/13/EC) requires licensing for telecommunications to be non-discriminatory. In practice this means that modifications usually need to be made to all licences of a particular type at the same time. However, the current licence modification procedure, as detailed under section 12 of the Telecommunications Act 1984, requires the Director General of Telecommunications (DGT) to obtain the written consent of an individual licence holder if he wishes to proceed with a modification without reference to the Competition Commission (CC). Thus if the DGT wishes to make a licence modification without reference to the CC, he must now obtain written consent from all those whose licences are to be modified. Given that there are a large number of individual licensees - over 400 - gaining this consent is an unduly difficult requirement. For example, some licensees may feel they have insufficient interest to bother to answer the DGT's letter. This could lead to licences becoming silted up with out of date requirements, as well as preventing the DGT from responding appropriately to new developments.

61. Section 11 accordingly enables the DGT to proceed with licence modifications without reference to the CC providing that he does not receive objections from any licensees whose licences are to be modified. The section will also enable the DGT to proceed with a licence modification without reference to the CC in cases where he considers the licence modification to be deregulatory according to specified criteria.

62. The section operates by making modifications to the existing section 12 of the Telecommunications Act 1984 (the 1984 Act) (which sets out the procedure for making modifications) and inserting a new section 12A (setting out the criteria for making modifications).

63. Subsection (1) provides that notice of a modification, in addition to its being published, must be given to every "relevant licensee" (defined in the new section 12(6E), inserted by subsection (3)).

64. Subsection (2) replaces section 12(4) of the Telecommunications Act 1984 with two new subsections (4A) and (4B). subsection (4A) provides that class licences (i.e. general authorisations, which are deemed to be granted to all those within a particular "class of persons" - e.g. every person in the UK - normally with no fee or registration involved) may be modified despite outstanding representations, provided that no objections come from persons benefiting from the class licence. Subsection (4B) paves the way for the criteria in section 12A which must be satisfied before a modification is made in the case of a licence granted to a particular person.

65. Subsection (3) inserts six new subsections in section 12 of the 1984 Act:

• Subsections (6A) and (6B), requiring the reasons for the making of a licence modification to be published.

• Subsection (6C), enabling the DGT to publish the names of companies objecting to a modification, without their consent, and to publish non-confidential details of objections and representations received.

• Subsections (6D) and (6E), which provide definitions.

• Subsection (6F) which makes clear that this procedure does not apply if a      licence is modified by revocation and reissue.

66. Subsection (4) inserts a new section 12A into the 1984 Act, which sets out the criteria for modifications to be made. This is illustrated in the flow-chart below.

Subsection 12A(4) provides that the modification may be made to licences issued since the making of a proposal for that modification, so long as the persons whose licences are modified have been given reasonable opportunity to object and have not done so.

67. Subsection (5) makes consequential amendments.

Figure 1 below provides a diagrammatic representation of the revised licence modification procedure.

Part III: Licence Modification Procedure

Section 12: Appeals against modifications of licences

68. This section provides for an appeal under section 46B of the Telecommunications Act 1984 against licence modification decisions under section 12 of a licence granted to a particular person. (Section 46B provides for appeals against a range of regulatory decisions on wider grounds than those provided by judicial review.)

Section 14: Prohibition on key escrow requirements

69. This section limits the powers given by this Act to any Minister of the Crown, the Scottish Ministers, the National Assembly for Wales, or any person appointed under section 3, such that these powers may not impose requirements on a person to deposit a key for electronic data with any other person. Subsection (2) makes clear that a key may be required to be deposited with a person to whom the communication is sent and that alternative arrangements to key-storage may be required to prevent the loss of data or the ability to decode it. Subsection (3) defines a key for the purposes of this section, making use of the definition of being put into an intelligible form given in section 15 (3).

Section 15: General interpretation

70. This section provides for the interpretation of various terms used throughout the Act.

71. Subsection (1) inter alia defines:

• electronic communication to mean a communication transmitted (whether from one person to another, from one device to another or from a person to a device or vice versa) by means of a telecommunication system (within the meaning of the Telecommunications Act 1984), or by other means but while in an electronic form.

  Section 4(1) of the Telecommunications Act 1984 says

  • In this Act telecommunication system means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy of-

    (a)     speech, music and other sounds;

    (b)     visual images;

    (c)     signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or

    (d)     signals serving for the actuation or control of machinery or apparatus.

• subordinate legislation as having the same meaning as in the Interpretation Act 1978, and also including corresponding secondary legislation made under Acts of the Scottish Parliament and certain statutory rules in Northern Ireland.
  • Section 21(1) of the Interpretation Act 1978 provides that subordinate legislation means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act.

COMMENCEMENT

72. The Government will commence Part I and set up the statutory scheme, only if the industry led approvals scheme (see paragraph 10 above) does not work. The Government will inform Parliament on how self-regulation is developing. The Government intends to commence sections 7, 11 and 12 two months after the date of Royal Assent. The remainder of the Act took effect on the date of Royal Assent (25 May 2000).

Annex A:

HANSARD REFERENCES

The following table sets out the dates and Hansard references for each stage of this Act's passage through Parliament.

Stage	Date	Hansard reference
House of Commons
Introduction	18 November 1999	Column 124
Second Reading	29 November 1999	Columns 39-120
Committee	9, 14 & 16 December 1999	House of Commons Official Report - Standing Committee B
Report and Third Reading	25 January 2000	Columns 159-183
House of Lords
Introduction	26 January 2000	Column 1556
Second Reading	22 February 2000	Columns 185-224
Committee	14 March 2000	Columns CWH1-CWH28
Report Stage	16 May 2000	Columns 181-188
Third Reading	22 May 2000	Column 477
House of Commons
Consideration of Lords Amendments	25 May 2000	Columns 1123-1127

Royal Assent - 25 May 2000	House of Lords Hansard Column 914
	House of Commons Hansard Column 1143

Annex B:

Extract from the Telecommunications Act 1984 showing words inserted at section 12 by the Act; it also shows other amendments made by the Act (not highlighted)

Modification of licence conditions by agreement.

12 (1) Subject to the following provisions of this section, the Director may modify the conditions of a licence granted under section 7 above.

     (2) Before making modifications under this section, the Director shall give notice-

(a)     stating that he proposes to make the modifications and setting out their effect;

(b)     stating the reasons why he proposes to make the modifications; and

(c)     specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made.

     (3) A notice under subsection (2) above shall be given by publication in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them and, in the case of a licence granted to a particular person, by sending a copy of the notice to every relevant licensee.

     (4) Delete existing subsection and replace with:

(4A) In the case of a licence granted to all persons, or to all persons of a particular class, the Director shall not make any modification unless- (a) he has considered every representation made to him about the modification; and (b) there has not been any objection by a person running a telecommunication system under the authority of the licence to the making of the modification. (4B) In the case of a licence granted to a particular person, the Director shall not make any modification unless-

(a) he has considered every representation made to him about the modification or any modification in the same or similar terms that he is at the same time proposing to make in the case of other licences; and (b) the requirements of section 12A below are satisfied in the case of the modification and also in the case of every such modification in the same or similar terms.

(5) The Director shall also send a copy of a notice under subsection (2) above to the Secretary of State; and if, within the time specified in the notice, the Secretary of State directs the Director not to make any modification, the Director shall comply with the direction.

(6) The Secretary of State shall not give a direction under subsection (5) above unless-

(a)     it appears to him that the modification should be made, if at all, under section 15 below; or

(b)     it appears to him to be requisite or expedient to do so in the interests of national security or relations with the government of a country or territory outside the United Kingdom.

(6A) Where the Director makes a modification under this section, he shall, as soon as reasonably practicable after making the modification, give notice of his reasons for doing so. (6B) Subsection (3) above shall apply in the case of a notice under subsection (6A) above as it applies in the case of a notice under subsection (2) above. (6C) Where the Director has given notice under subsection (2) above of a proposal to modify the conditions of a licence, he may in such manner and at such time as he considers appropriate publish- (a) the identities of any or all of the persons who objected to the making of the modification; and (b) to the extent that confidentiality for representations or objections in relation to the proposal for the modification has not been claimed by the persons making them, such other particulars of the representations or objections as he thinks fit.

(6D) In this section and section 12A below (except in subsection (6C) above), a reference to a representation or objection, in relation to a modification, is a reference only to a representation or objection which- (a) was duly made to the Director within a time limit specified in the case of that modification under subsection (2)(c) above or section 12A(5)(d) below; and (b) has not subsequently been withdrawn; and for the purposes of this section and section 12A below representations against a modification shall be taken to constitute an objection only if they are accompanied by a written statement that they are to be so taken. (6E) In this section and section 12A below 'relevant licensee', in relation to a modification, means- (a) in a case where the same or a similar modification is being proposed at the same time in relation to different licences granted to different persons, each of the persons who, at the time when notice of the proposals is given, is authorised by one or more of those licences to run a telecommunication system; and (b) in any other case, the person authorised by the licence in question to run such a system. (6F) In this section references to a modification of the conditions of a licence do not include references to any modification to which effect is given by the exercise of a power under the terms of any licence to revoke it and by the grant of a new licence.

(7) References in this section and in sections 12A to 15 below to modifications of the conditions of a licence do not include references to modifications of conditions relating to the application of the telecommunications code.