Office of Public Sector Information
SCHEDULE 17 continued
(4) In section 136 (investigations and reports on market investigation references)—
(a) in subsection (7), after paragraph (g) there shall be inserted—
“(h) in relation to the Office of Communications, sections 370 and 371 of the Communications Act 2003.”;
(b) in subsection (8), for “or the Civil Aviation Authority” there shall be substituted “, the Civil Aviation Authority or the Office of Communications”.
(5) In section 168 (regulated markets)—
(a) in subsection (3)(e), for “section 39(1) of the Broadcasting Act 1990 (c. 42)” there shall be substituted “section 290 of the Communications Act 2003”;
(b) for subsection (4)(e), there shall be substituted—
“(e) in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;”;
(c) for subsection (5)(g), there shall be substituted—
“(g) the Office of Communications;”.
(6) In section 234(5) (supply of services), for “section 189(2) of the Broadcasting Act 1990 (c. 42)” there shall be substituted “paragraph 29 of Schedule 2 to the Telecommunications Act 1984”.
(7) In Schedule 15 (enactments conferring functions), in the appropriate place, there shall be inserted—
“Communications Act 2003.”
175 (1) The Income Tax (Earnings and Pensions) Act 2003 (c. 1) shall be amended as follows.
(2) In section 319(3) (mobile telephones), in the definition of “telephone apparatus”, for “connected to a public telecommunication system (as defined in section 9(1) of the Telecommunications Act 1984 (c. 12))” there shall be substituted “used in connection with a public electronic communications service”.
(3) In section 320(7)(c)(ii) (limited exemption for computer equipment), for “any public telecommunication system, and” there shall be substituted “a public electronic communications service.”
Section 406
1 (1) This paragraph applies where, at any time before the coming into force of a transfer made by virtue of section 2—
(a) any subordinate legislation has been made in the carrying out of the transferred functions by the person from whom the transfer is made; or
(b) any other thing has been done by or in relation to that person for the purposes of or in connection with the carrying out of those functions.
(2) The subordinate legislation or other thing—
(a) is to have effect, on and after the coming into force of the transfer, and so far as necessary for its purposes, as if it had been made or done by or in relation to OFCOM; and
(b) in the case of subordinate legislation to which section 403 applies when it is made by OFCOM, shall so have effect as if made in accordance with the requirements of that section.
(3) Where any subordinate legislation, direction, authorisation or notice has effect in accordance with this paragraph—
(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
(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.
2 (1) This paragraph applies where the Secretary of State or OFCOM is or are 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 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—
(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 before being enacted.
(4) In relation to provisions brought into force as mentioned in subsection (1) of section 408 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 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 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, 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 those steps were taken.
3 (1) This paragraph applies where a term or condition of an agreement in force immediately before the abolition of licensing provides—
(a) for the agreement, or a provision of it, to cease to have effect,
(b) for the agreement to become capable of being terminated,
(c) for a requirement to pay or repay an amount (whether liquidated or unliquidated) to arise under the agreement, or to arise earlier than it would otherwise have arisen,
(d) for a security to become enforceable, or
(e) for rights or obligations of a person under the agreement to be different or to be modified,
if a person (whether or not a party to the agreement) ceases to hold a licence under section 7 of the 1984 Act, or ceases to do so in a manner or in circumstances described in the agreement.
(2) Where a person ceases to hold a licence in consequence of the provisions of this Act removing the requirement to hold a licence under section 7 of the 1984 Act—
(a) the term or condition is not to apply; and
(b) the rights and obligations of the parties to the agreement are to be the same (subject to the following sub-paragraphs) as they would have been had the person in question continued to hold such a licence.
(3) In relation to times after the abolition of licensing, that term or condition is to have effect as if the reference in that term or condition—
(a) to a person’s ceasing to hold a licence under section 7 of the 1984 Act, or
(b) to his ceasing to do so in a particular manner or particular circumstances,
were a reference to his becoming subject to a direction under this Act by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service.
(4) In sub-paragraph (3) 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 or electronic communications service—
(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.
(5) This paragraph does not apply in the case of a term or condition of an agreement if, on an application to the court by one or both of the parties to the agreement, the court directs—
(a) that this paragraph is not to apply; or
(b) that it is to apply with such modifications, or subject to the payment of such compensation, as the court may specify in the direction.
(6) In determining whether to give a direction under sub-paragraph (5) or what modifications or compensation to specify in such a direction the court must have regard to the following—
(a) whether either or both of the parties to the agreement contemplated the abolition of the licensing requirements of the 1984 Act when they entered into the agreement; and
(b) the extent (if any) to which the provisions of this paragraph represent what it would have been reasonable for the parties to have agreed had they both known at that time what provision was to be made by this Act and when it was to come into force.
(7) For the purposes of this paragraph—
(a) references to ceasing to hold a licence include references to its expiring or being revoked; and
(b) references to a licence under section 7 of the 1984 Act include references to a licence under that section of a particular description.
(8) In this paragraph “the court” means the High Court or the Court of Session.
(9) This paragraph has effect subject to paragraph 14.
4 (1) This paragraph applies in a case to which paragraph 3 does not apply and in which a term or condition of an agreement in force immediately before the abolition of licensing provides for rights or obligations of a person (“the contracting party”) under the agreement to be different or to be modified according to whether or not he or another person (whether or not a party to the agreement)—
(a) is or has become the holder of a licence under section 7 of the 1984 Act; or
(b) is or has become the holder of such a licence in a manner or in circumstances described in the agreement.
(2) In relation to times after the abolition of licensing, that term or condition is to have effect as if the rights and obligations to which the contracting party is entitled or subject under the agreement were, except in a case falling within sub-paragraph (3), those for which the agreement provides in relation to a case in which the person in question—
(a) is or has become the holder of such a licence; or
(b) is or has become the holder of such a licence in that manner or in those circumstances.
(3) The excepted case is where that person is subject to a direction under this Act by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service.
(4) In sub-paragraph (3) the reference to a person’s being subject to a direction by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service—
(a) does not include a reference to his being 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 his being subject to a direction which would have had to be revoked if not confirmed but which has been confirmed.
(5) This paragraph does not apply in the case of a term or condition of an agreement if, on an application to the court by one or both of the parties to the agreement, the court directs—
(a) that this paragraph is not to apply; or
(b) that it is to apply with such modifications, or subject to the payment of such compensation, as the court may specify in the direction.
(6) In determining whether to give a direction under sub-paragraph (5) or what modifications or compensation to specify in such a direction the court must have regard to the following—
(a) whether either or both of the parties to the agreement contemplated the abolition of the licensing requirements of the 1984 Act when they entered into the agreement; and
(b) the extent (if any) to which the provisions of this paragraph represent what it would have been reasonable for the parties to have agreed had they both known at that time what provision was to be made by this Act and when it was to come into force.
(7) For the purposes of this paragraph references to a licence under section 7 of the 1984 Act include references to a licence under that section of a particular description.
(8) In this paragraph “the court” means the High Court or the Court of Session.
5 (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 Broadcasting Act licence provides—
(a) for the agreement to cease to have effect, or
(b) for it to be capable of being terminated,
if a party to the agreement ceases to hold a relevant Broadcasting Act licence of a particular description, or so ceases in a manner described in the agreement.
(2) In this paragraph “relevant Broadcasting Act licence” means—
(a) a licence under Part 1 of the 1990 Act to provide a satellite television service or a licensable programme service;
(b) a licence under that Part to provide the service mentioned in section 49(2) of that Act;
(c) a licence under Part 2 of that Act to provide a local delivery service; or
(d) a licence under Part 3 of that Act to provide a formerly regulated radio service (within the meaning of section 251 of this Act).
(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 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 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 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 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 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.
6 (1) This paragraph applies where, immediately before functions under the Wireless Telegraphy Act 1949 (c. 54) are transferred under this Act to 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 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 that power were an authorisation given under that order by OFCOM.
7 (1) Where a proposal for the designation of a person as a universal service provider has been confirmed under regulation 4(10) of the Electronic Communications (Universal Service) Regulations 2003 (S.I. 2003/33), the designation is to have effect after the commencement of section 66 of this Act as a designation in accordance with regulations under that section.
(2) Where in any person’s case a proposal to set a condition has been confirmed under regulation 4(10) or 5(4) of those regulations, that condition is to have effect after the commencement of that section as a condition set by OFCOM under section 45 of this Act and applied to that person.
(3) Where an appeal under regulation 6 of those regulations against a decision under them has been brought but not concluded before the commencement of section 192 of this Act—
(a) that appeal is to be stayed or sisted as from the commencement of the section; but
(b) the appellant is to have a new right of appeal under the section against the decision (as it has effect by virtue of this paragraph) as if—
(i) it were the corresponding decision made by OFCOM under Chapter 1 of Part 2 of this Act; and
(ii) it had been made immediately after the commencement of the section.
(4) 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 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 paragraph (b) of that sub-paragraph.
8 (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 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.
(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 notified to the European Commission as having significant market power in an identified market, and “LLU notification” shall be construed accordingly.
(5) Section 192 applies to a decision by OFCOM to give a notification under this paragraph as it applies to a decision by them under Part 2 of this Act.
9 (1) This paragraph applies where OFCOM give a continuation notice to the holder of a licence granted under section 7 of the 1984 Act.
(2) A continuation notice is a notice that a provision contained in a condition of the licence is to have effect, after the abolition of licensing—
(a) to the extent specified in the notice; and
(b) subject to such modifications (if any) as may be so specified.
(3) OFCOM are not to give a continuation notice except to the extent that they consider that provision to which it will give effect, as modified by the notice, (“the continued provision”)—
(a) regulates the provision of premium rate services; or
(b) falls within sub-paragraph (4).
(4) The continued provision falls within this sub-paragraph in so far as it corresponds to provision of one or more of the following descriptions—
(a) provision that OFCOM have power to include in SMP conditions;
(b) provision authorised by section 73(2) or (4) for inclusion in access-related conditions;
(c) provision relating to matters mentioned in Article 16 of the Universal Service Directive or Article 7 of the Access Directive.
(5) A continuation notice relating to provision corresponding to anything that OFCOM have power to include in SMP conditions—
(a) may identify the market by reference to which an SMP condition replacing the provision would have to be set; and
(b) in so far as the provision corresponds to anything that OFCOM have power to include only in SMP apparatus conditions, must do so.
(6) OFCOM are not to give a continuation notice relating to provision corresponding to anything that OFCOM have power to include only in SMP apparatus conditions except to the extent that it has effect in relation to the supply of electronic communications apparatus of a description supplied in the market identified in the notice as the market by reference to which SMP conditions replacing the continued provision would have to be set.
(7) The modifications for which a continuation notice may provide—
(a) must be confined to modifications for the purpose of securing that the provision to which they relate continues to have effect for so long as the notice is in force; but
(b) in the case of provision which is expressed to impose a requirement to be met before the abolition of licensing, may include a modification under which that requirement must continue to be met for so long as the notice remains in force.
(8) Notwithstanding any repeal or revocation made by this Act—
(a) the continued provision,
(b) every provision made by a direction, determination or consent given or made for the purposes of the continued provision, and
(c) so far as necessary for giving effect to anything mentioned in paragraph (a) or (b), every provision made by or under the licence under the 1984 Act that is not so mentioned,
are to remain in force for so long as the continuation notice is in force.
(9) A continuation notice shall cease to have effect if OFCOM give a notice to that effect to the holder of the licence.
(10) Where the continued provision is one that OFCOM have power to include only in an SMP apparatus condition, it shall be their duty, as soon as reasonably practicable after giving the continuation notice—
(a) to carry out an analysis of the market which, under sub-paragraph (5), is identified in that notice;
(b) to take all other steps necessary for enabling them to decide whether or not to set an SMP apparatus condition by reference to that market for the purpose of replacing the continued provision; and
(c) to decide whether or not to exercise their power to set such a condition for that purpose.
(11) In the case of every other continued provision falling within sub-paragraph (4), it shall be OFCOM’s duty, as soon as reasonably practicable after giving the continuation notice—
(a) to take all steps necessary for enabling them to decide whether or not to set a condition of any other description under Chapter 1 of Part 2 of this Act for the purpose of replacing the continued provision; and
(b) to decide whether or not to exercise their power to set a condition under that Chapter for that purpose.
(12) It shall be the duty of OFCOM—
(a) as soon as reasonably practicable after making a decision required by sub-paragraph (10) or (11), 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 (9) with respect to the continuation notice.
(13) The duties imposed by sub-paragraphs (10) to (12) apply only where OFCOM have not previously given a notice under sub-paragraph (9) with respect to the continuation notice in question.
(14) This paragraph has effect in the case of a licence granted under section 7 of the 1984 Act to persons of a particular class as if—
(a) references to the holder of that licence were references to the members of that class; and
(b) the manner in which a continuation notice or notice under sub-paragraph (9) is to be given to members of that class were by its publication in such manner as, in OFCOM’s opinion, is appropriate for bringing it to the attention of the members of that class who are affected by the notice.
(15) 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.
(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act.
10 (1) Sub-paragraph (2) has effect where a proposal for—
(a) the identification of a market,
(b) the making of a market power determination, or
(c) the setting of conditions by reference to a proposal for a market power determination,
has been confirmed under regulation 8 of the Electronic Communications (Market Analysis) Regulations 2003 (S.I. 2003/330).
(2) If, at any time after the commencement of section 45, OFCOM—
(a) are satisfied that a procedure has been followed in relation to the proposal that satisfies the requirements of Article 7 of the Framework Directive, and
(b) publish a notification to that effect in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the proposal,
the proposal (with such modifications, if any, as are specified in the notification) is to have effect, from the publication of the notification, in accordance with sub-paragraph (3).
(3) The proposal is to have effect as follows—
(a) in the case of a proposal for identifying a market, as an identification of a services market in accordance with and for the purposes of section 79 of this Act;
(b) in the case of a proposal for the making of a market power determination, as a market power determination made in accordance with and for the purposes of Chapter 1 of Part 2 of this Act; and
(c) in the case of a proposal for setting conditions, as if the conditions were SMP services conditions set under section 45 of this Act and applied to the same person as the condition in the proposal.
(4) Where an appeal under regulation 11 of those regulations against a decision under them has been brought but not concluded before the commencement of section 192 of this Act—
(a) that appeal is to be stayed or sisted as from the commencement of the section; but
(b) the appellant is to have a new right of appeal under the section against the decision (as it has effect by virtue of this paragraph) as if—
(i) it were the corresponding decision made by OFCOM under Chapter 1 of Part 2 of this Act; and
(ii) it had been made immediately after the commencement of the 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 (4), make transitional provision 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 paragraph (b) of that sub-paragraph.
(6) Section 192 applies to a decision by OFCOM to publish a notification under this paragraph as it applies to a decision by them under Part 2 of this Act.
(7) In this paragraph “the Framework Directive” has the same meaning as in Chapter 1 of Part 2 of this Act.
11 (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 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 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.
(4) Notwithstanding any repeal or revocation made by this Act—
(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 after the abolition of licensing, as requirements to provide the accounts or information to OFCOM.
(5) 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.
12 (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 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 to be made according to how much of that period had expired before the abolition of licensing.
Communications Act 2003