Communications Act 2003 (c. 21)

(The document as of February, 2008)

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406 Minor and consequential amendments, transitionals and repeals

(1) Schedule 17 (which provides for minor and consequential amendments in connection with the other provision made by this Act) shall have effect.

(2) The Secretary of State may by order make such consequential modifications of any enactment as--

(a) correspond to amendments of any other enactment that are made by Schedule 17; and

(b) appear to him to be appropriate in consequence of that provision of this Act.

(3) The Secretary of State may by order make any provision that he thinks fit for substituting a reference in any enactment or subordinate legislation to something defined for the purposes of this Act, or of any provisions contained in this Act, for a reference to something equivalent or similar that was defined for the purposes of the Telecommunications Act 1984 (c. 12), or of provisions contained in that Act.

(4) The Secretary of State may by order make such further consequential modifications of--

(a) an enactment extending only to Scotland,

(b) an enactment extending only to Northern Ireland,

(d) the provision of any subordinate legislation,

as appear to him to be appropriate in consequence of any provision of this Act.

(5) If it appears to the Secretary of State that a local enactment contains a provision which corresponds to a provision the effect of which is modified by an amendment in Schedule 17 of this Act of a listed provision, it shall be his duty to exercise his powers under this section to secure that a modification corresponding to that effected by that amendment is made to the local enactment.

(6) Schedule 18 (which contains transitional provisions in connection with the other provision made by this Act) shall have effect.

(7) Subject to the provisions of Schedule 18 and to the savings and commencement provisions set out in the notes to Schedule 19, the enactments and instruments specified in Schedule 19 (which include provisions that are spent or have ceased to be of any practical utility) are hereby repealed or revoked to the extent specified in the second column of that Schedule.

(8) In this section "local enactment" means--

(a) a local or personal Act;

(b) a public general Act relating only to London;

(c) an order or scheme made under an Act which has been confirmed by Parliament or brought into operation in accordance with special Parliamentary procedure;

(d) an enactment in a public general Act but amending a local enactment.

(9) In subsection (5) "listed provision" means the provisions of the following enactments--

(a) sections 11 and 14 of the London Overground Wires, etc. Act 1933 (c. xliv);

(b) section 7(6) of the London County Council (General Powers) Act 1949 (c. lv);

(d) section 17(4)(a) of the London County Council (General Powers) Act 1963 (c. xvii);

(e) section 7(6) of the Greater London Council (General Powers) Act 1969 (c. lii);

(f) section 20(1)(a) of the Thames Barrier and Flood Prevention Act 1972 (c. xlv);

(g) section 32 of and paragraph 3(2)(b) of Schedule 2 and Part 10 of Schedule 7 to the Channel Tunnel Act 1987 (c. 53);

(h) section 25(1) of the Norfolk and Suffolk Broads Act 1988 (c. 4);

(i) section 5 of the London Local Authorities (No. 2) Act 1990 (c. xxx);

(j) paragraphs 1(c) and 16 of Schedule 2, paragraph 3(2)(c) of Schedule 4 and paragraph 21 of Schedule 7 to the Cardiff Bay Barrage Act 1993 (c. 42);

(k) section 3(1) of the British Waterways Act 1995 (c. i);

(l) paragraphs 6(4) and 15(4) of Schedule 6 and Part 4 of Schedule 15 to the Channel Tunnel Rail Link Act 1996 (c. 61).

(10) This section has effect subject to section 408.

407 Pre-consolidation amendments

(1) The Secretary of State may by order make such modifications of--

(a) the enactments relating to the management of the radio spectrum,

(b) the enactments relating to broadcasting, and

as in his opinion facilitate, or are otherwise desirable in connection with, the consolidation of those enactments or any of them.

(2) No order is to be made under this section unless a Bill for repealing and re-enacting--

(a) the enactments modified by the order, or

(b) enactments relating to matters connected with the matters to which enactments modified by the order relate,

has been presented to either House of Parliament.

(3) An order under this section is not to come into force until immediately before the commencement of the Act resulting from that Bill.

(4) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5) In this section "the enactments relating to broadcasting" means--

(a) the 1990 Act;

(b) the 1996 Act;

(d) the other provisions of this Act so far as relating to the 1990 Act, the 1996 Act or that Part.

408 Transitional provision for anticipatory carrying out of functions

(1) This section applies where an order under section 411 bringing into force--

(a) a provision of Part 1, 2 or 6, or

(b) a provision of Chapter 1 of Part 5,

states that that provision is brought into force at a particular time for the purpose only of enabling specified networks and services functions, or specified spectrum functions, to be carried out during the transitional period by the Director General of Telecommunications or the Secretary of State.

(2) In relation to times falling in the transitional period, that provision is to have effect as if--

(a) references in that provision to OFCOM, and

(b) references to OFCOM inserted by that provision in any other enactment,

were references, in accordance with subsection (3), to the Director General of Telecommunications or to the Secretary of State.

(3) The references have effect--

(a) as references to the Director General of Telecommunications to the extent that the provision is brought into force for the purpose of enabling specified networks and services functions to be carried out; and

(b) as references to the Secretary of State, to the extent that the provision is brought into force for the purpose of enabling specified spectrum functions to be carried out.

(4) An order bringing a provision into force as mentioned in subsection (1) may include provision specifying the extent to which it is to be taken, for the purposes of subsection (3), to have been brought into force for the purpose of enabling particular functions to be carried out.

(5) In relation to times after the end of the transitional period for a provision which has been brought into force for enabling specified functions to be carried out by the Director General of Telecommunications or the Secretary of State, anything which--

(a) was done, during that period, by or in relation to that Director or the Secretary of State, and

(b) was so done for the purposes of, or in connection with, the carrying out of those functions,

is to have effect as if had been done by or in relation to OFCOM.

(6) In this section "the transitional period", in relation to a provision brought into force as mentioned in subsection (1) by an order under section 411, means the period which--

(a) begins with the time when it is so brought into force; and

(b) ends with the time from which that order, or a subsequent order under that section, brings the provision into force for the purpose of conferring on OFCOM the functions in question.

(7) In this section "networks and services functions" means any of the following functions of OFCOM under this Act--

(a) their functions under sections 24 and 25;

(b) their functions under Chapter 1 of Part 2;

(i) disputes relating to rights or obligations conferred or imposed by or under the enactments relating to the management of the radio spectrum; or

(ii) decisions made under those enactments;

(d) their functions under Chapter 1 of Part 5, except to the extent that those functions relate to broadcasting or related matters;

(e) their functions under Schedule 18 to this Act in relation to the abolition of licensing (within the meaning of that Schedule).

(8) In this section "spectrum functions" means--

(a) the functions under the enactments relating to the management of the radio spectrum which by virtue of this Act are conferred on OFCOM; and

(b) the functions conferred on OFCOM by so much of Chapter 3 of Part 2 as relates to the disputes and decisions mentioned in subsection (7)(c).

409 Modifications consequential on regulations implementing Directives

(1) This section applies if it appears to the Secretary of State that regulations under section 2 of the European Communities Act 1972 (c. 68) for giving effect to Community obligations imposed by the Communications Directives have come into force before the passing of this Act.

(2) The Secretary of State may by order--

(a) repeal any relevant provision of this Act which appears to him to be unnecessary, or to have become spent, in consequence of the regulations;

(b) make such other modifications of the relevant provisions of this Act as he considers appropriate in consequence of the regulations;

(d) make transitory or transitional provision in relation to anything done by or under the regulations.

(3) The Secretary of State's power under this section includes power to make consequential amendments of enactments not contained in this Act.

(4) In this section--

"the Communications Directives" means--
(a)
the Access Directive, that is to say, Directive 2002/19/EC of the European Parliament and of the Council on access to, and interconnection of, electronic communications networks and associated facilities;
(b)
the Authorisation Directive, that is to say, Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services;
(c)
the Framework Directive, that is to say, Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services;
(d)
the Universal Service Directive, that is to say, Directive 2002/22/EC of the European Parliament and of the Council on universal service and users' rights relating to electronic communications networks and services;
"relevant provision of this Act" means a provision contained in--
(a)
Part 1, 2 or 6; or
(b)
Chapter 1 of Part 5.

(5) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

410 Application of enactments to territorial sea and other waters

(1) This section applies to--

(a) provision made by or under Part 2 of this Act;

(b) any provision of the enactments relating to the management of the radio spectrum that are not contained in that Part; and

(c) any provision of Chapter 1 of Part 5 of this Act so far as it relates to a matter as respects which provision falling within paragraph (a) or (b) is made.

(2) Her Majesty may by Order in Council provide--

(a) for an area of the territorial sea to be treated, for the purposes of any provision to which this section applies, as if it were situated in such part of the United Kingdom as may be specified in the Order; and

(b) for jurisdiction with respect to questions arising in relation to the territorial sea under any such provision to be conferred on courts in a part of the United Kingdom so specified.

(3) An Order in Council under section 11 of the Petroleum Act 1998 (c. 17) (application of civil law to offshore installations etc.) may make provision for treating--

(a) an installation with respect to which provision is made under that section and which is outside the territorial sea but in waters to which that section applies, and

(b) waters within 500 metres of the installation,

as if for the purposes of provisions to which this section applies, they were situated in such part of the United Kingdom as is specified in the Order.

(4) The jurisdiction conferred on a court by an Order in Council under this section is in addition to any jurisdiction exercisable apart from this section by that or any other court.

(5) Subsection (3) of section 402 applies to the power to make an Order in Council under this section as it applies to any power of the Secretary of State to make an order under this Act, but as if references in that subsection to the Secretary of State were references to Her Majesty in Council.

(6) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section--

"installation" includes any floating structure or device maintained on a station by whatever means, and installations in transit;
"the territorial sea" means the territorial sea adjacent to the United Kingdom.

411 Short title, commencement and extent

(1) This Act may be cited as the Communications Act 2003.

(2) This Act (except the provisions listed in subsection (3), which come into force on the passing of this Act) shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed under this subsection for different purposes.

(3) Those provisions are sections 31(1) to (4) and (6) and 405 and this section.

(4) An order under subsection (2) may include provision making such transitional or transitory provision, in addition to that made by Schedule 18, as the Secretary of State considers appropriate in connection with the bringing into force of any provisions of this Act; and the power to make transitional or transitory provision includes power to make--

(a) different provision for different cases (including different provision in respect of different areas);

(b) provision subject to such exemptions and exceptions as the Secretary of State thinks fit; and

(5) This Act extends to Northern Ireland.

(6) Subject to subsection (7), Her Majesty may by Order in Council extend the provisions of this Act, with such modifications as appear to Her Majesty in Council to be appropriate, to any of the Channel Islands or to the Isle of Man.

(7) Subsection (6) does not authorise the extension to any place of a provision of this Act so far as it gives effect to an amendment of an enactment that is not itself capable of being extended there in exercise of a power conferred on Her Majesty in Council.

(8) Subsection (3) of section 402 applies to the power to make an Order in Council under this section as it applies to any power of the Secretary of State to make an order under this Act, but as if references in that subsection to the Secretary of State were references to Her Majesty in Council.

SCHEDULES

Section 2

SCHEDULE 1 Functions transferred to OFCOM

Wireless telegraphy functions

1 (1) Subject to sub-paragraphs (2) and (3), the functions of the Secretary of State under the following enactments are transferred to OFCOM--

(a) the Wireless Telegraphy Act 1949 (c. 54);

(b) section 7 of the Wireless Telegraphy Act 1967 (c. 72) (restriction on dealings in, and custody of, certain apparatus);

(d) the Wireless Telegraphy Act 1998 (c. 6).

(2) The following functions remain functions of the Secretary of State--

(a) his functions under section 5 of the Wireless Telegraphy Act 1949 (misleading messages and interception and disclosure of wireless telegraphy messages);

(b) his functions under section 6 of that Act (regulations about apparatus on board ships etc.);

(3) The functions of the Secretary of State under section 84 of the Telecommunications Act 1984 (approval of wireless telegraphy apparatus)--

(a) if an order made by the Secretary of State under subsection (8A) of that section is in force, shall be exercisable by him and by OFCOM in accordance with that order; and

(b) if there is no such order, shall be exercisable by OFCOM.

2 (1) The functions of the Secretary of State under section 7A of the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41) (powers of enforcement of marine offences under that Act) shall (with the following exception) be exercisable concurrently by the Secretary of State and OFCOM.

(2) The exception is the functions of the Secretary of State under that section so far as they relate to powers exercisable by virtue of subsection (7) of that section.

Functions in relation to the licensing etc. of television services

3 The following functions of the Independent Television Commission are transferred to OFCOM--

(a) the function of granting or awarding licences under Part 1 of the 1990 Act (independent television services) and Part 1 of the 1996 Act (digital television broadcasting);

(b) the Commission's functions under those Parts in relation to, and to applications for, licences under either of those Parts;

(c) the function of securing the provision of a nationwide system of television broadcasting services known as Channel 3;

(d) the function of securing the provision of the television broadcasting service known as Channel 5.

Functions in relation to C4C

4 The functions conferred on the Independent Television Commission by or under section 23 of the 1990 Act and under Schedule 3 to that Act (appointment of members of C4C and related administrative functions) are transferred to OFCOM.

Functions in relation to the licensing of radio services

5 The following functions of the Radio Authority are transferred to OFCOM--

(a) the function of granting or awarding licences under Part 3 of the 1990 Act (independent radio services) and Part 2 of the 1996 Act (digital sound broadcasting); and

(b) the Authority's functions under those Parts in relation to licences granted or awarded under those Parts.

Functions in relation to the proscription of foreign satellite services

6 The functions of the Independent Television Commission and of the Radio Authority under section 177 of the 1990 Act (proscription of foreign satellite services) are transferred to OFCOM.

Functions in relation to Gaelic broadcasting

7 The functions of the Independent Television Commission under sections 183 and 184 of the 1990 Act and the functions of that Commission and of the Radio Authority under Schedule 19 to that Act (Gaelic broadcasting) are transferred to OFCOM.

Functions in relation to the national television archive

8 The functions of the Independent Television Commission under section 185 of the 1990 Act (maintenance of the national television archive) are transferred to OFCOM.

Warrants to enter and search premises to enforce broadcasting licences provisions

9 The functions of the Independent Television Commission and of the Radio Authority under section 196(1) of the 1990 Act (entry and search for the purposes of enforcing licensing provisions of the 1990 and 1996 Acts) are transferred to OFCOM.

Variation of existing Channel 3 and Channel 5 licences

10 Any power to vary licences which is conferred on the Independent Television Commission by an order under section 28 of the 1996 Act is transferred to OFCOM.

Reports for the purposes of the review of digital broadcasting

11 The functions of the Independent Television Commission and of the Radio Authority under sections 33 and 67 of the 1996 Act (reports to the Secretary of State for the purposes of his review of digital broadcasting) are transferred to OFCOM.

Functions in relation to reservation of digital capacity to the BBC

12 The function of the Secretary of State under section 49(4) of the 1996 Act (reserving digital capacity on a local radio multiplex service for the BBC) is transferred to OFCOM.

Functions in relation to listed events

13 The functions of the Independent Television Commission under Part 4 of the 1996 Act (functions in connection with listed events) are transferred to OFCOM.

Functions relating to fairness and privacy in broadcasting

14 The following functions of the Broadcasting Standards Commission under Part 5 of the 1996 Act are transferred to OFCOM--

(a) the Commission's function of drawing up and from time to time revising a code of practice under section 107 of that Act (codes of practice relation to fairness and privacy); and

(b) their functions in relation to fairness complaints under that Part.

Section 30

SCHEDULE 2 Transfer schemes

Contents of transfer scheme

1 (1) A transfer scheme--

(a) shall set out the property, rights and liabilities to be transferred by the scheme; and

(b) may make incidental, supplemental, consequential and transitional provision in connection with the transfer of that property and of those rights and liabilities.

(2) The provisions of the scheme setting out the property, rights and liabilities to be transferred may do so in either or both of the following ways--

(a) by specifying them or describing them in particular; or

(b) by identifying them generally by reference to, or to a specific part of, an undertaking from which they are to be transferred.

(3) The property, rights and liabilities that are to be capable of being transferred by a transfer scheme include--

(a) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the person from whom they are transferred;

(b) property acquired and rights and liabilities arising in the period after the making of the scheme and before it comes into force;

(d) property situated anywhere in the United Kingdom or elsewhere and rights and liabilities under the law of any part of the United Kingdom or of any place outside the United Kingdom; and

(e) rights and liabilities under an enactment.

(4) The provision that may be made under sub-paragraph (1)(b) includes provision for the creation in favour of a pre-commencement regulator, the Secretary of State or OFCOM of rights or liabilities over or in respect of property transferred to OFCOM or property retained by a pre-commencement regulator or the Secretary of State.

(5) The transfers to which effect may be given by a transfer scheme, and the rights that may be created by means of such a scheme, include transfers that are to take effect, and rights that are to arise, in accordance with the scheme as if there were--

(a) no such requirement to obtain a person's consent or concurrence,

(b) no such liability in respect of any contravention of any other requirement, and

as there would be, in the case of a transaction apart from this Act (whether under any enactment or agreement or otherwise), by reason of any provision having effect in relation to the terms on which a pre-commencement regulator or the Secretary of State is entitled or subject to any property, right or liability.

Effect of transfer scheme

2 (1) Property transferred by a transfer scheme shall, on the coming into force of the scheme, vest in OFCOM without further assurance.

(2) Where any transfer scheme comes into force, any agreement made, transaction effected or other thing done by or in relation to the person from whom any transfers for which the scheme provides are made shall have effect, so far as necessary for the purposes of those transfers, as if--

(a) it had been made, effected or done by or in relation to OFCOM; and

(b) OFCOM were the same person in law as the person from whom the transfer is made.

(3) Accordingly, references in any agreement, document, process or instrument of any description to the person from whom anything is transferred by means of a transfer scheme shall have effect, so far as necessary for the purpose of giving effect to the transfer from the coming into force of the scheme, as references to OFCOM.

(4) Where any agreement, document, process or instrument of any description has effect, in relation to anything transferred by means of a transfer scheme, as referring (whether expressly or by implication)--

(a) to a member or to an officer of a pre-commencement regulator, or

(b) to an officer of the Secretary of State,

that agreement, document, process or instrument shall have effect so far as necessary for the purposes of the transfers effected by the scheme and in consequence of them, as referring instead to the person mentioned in sub-paragraph (5).

(5) That person is--

(a) the person nominated for the purposes of the transfer by OFCOM; or

(b) in default of a nomination, the member or employee of OFCOM who most closely corresponds to the member or officer originally referred to.

(6) Nothing in sub-paragraph (3) or (4) is to apply in relation to any reference in an enactment or in subordinate legislation.

Retrospective modification of a transfer scheme

3 (1) If at any time after the coming into force of a transfer scheme it appears to the Secretary of State that it is appropriate to do so, he may by order provide for the scheme to be deemed to have come into force with such modifications (including modifications retrospective to the time of the coming into force of the scheme) as may be provided for in the order.

(2) The power under this paragraph to provide by order for the modification of a transfer scheme shall be exercisable for the purpose only of making provision that could have been made by the scheme.

(3) Before making an order under this paragraph the Secretary of State must consult OFCOM.

Compensation

4 (1) Where, in consequence of any provision included in a transfer scheme, the interests, rights or liabilities of a third party are modified as mentioned in sub-paragraph (2), the third party is to be entitled to such compensation as may be just in respect of--

(a) any diminution in the value of any of his interests or rights, or

(b) any increase in the burden of his liabilities,

which is attributable to that modification.

(2) The modifications mentioned in sub-paragraph (1) are modifications by virtue of which--

(a) an interest of the third party in any property is transformed into, or replaced by--

(i) an interest in only part of that property; or

(ii) separate interests in different parts of that property;

(b) a right of the third party against any of the pre-commencement regulators or against the Secretary of State is transformed into, or replaced by, two or more rights which do not include a right which, on its own, is equivalent (disregarding the person against whom it is enforceable) to the right against that regulator or (as the case may be) against the Secretary of State; or

(c) a liability of the third party to any of the pre-commencement regulators or to the Secretary of State is transformed into, or replaced by, two or more separate liabilities at least one of which is a liability enforceable by a person other than the person by whom it was enforceable before being so transformed.

(3) Where--

(a) a third party would, apart from any provision of a transfer scheme, have become entitled to, or to exercise, any interest or right arising or exercisable in respect of the transfer or creation in accordance with such a scheme of any property, rights or liabilities, and

(b) the provisions of that scheme have the effect of preventing that person's entitlement to, or to exercise, that interest or right from arising on any occasion in respect of anything mentioned in paragraph (a), and

(c) provision is not made by a transfer scheme for securing that an entitlement to, or to exercise, that interest or right or an equivalent interest or right, is preserved or created so as to arise in respect of the first occasion when corresponding circumstances next occur after the coming into force of the transfers for which the scheme provides,

the third party is to be entitled to such compensation as may be just in respect of the extinguishment of the interest or right.

(4) A liability to pay compensation under this paragraph shall fall on the persons mentioned in sub-paragraph (5) who (as the case may be)--

(a) have interests in the whole or any part of the property affected by the modification in question,

(b) are subject to the rights of the person to be compensated which are affected by the modification in question,

(d) benefit from the extinguishment of the entitlement mentioned in sub-paragraph (3),

and that liability shall be apportioned between those persons in such manner as may be appropriate having regard to the extent of their respective interests, rights or liabilities or the extent of the benefit they respectively obtain from the extinguishment.

(5) Those persons are the pre-commencement regulators and the Secretary of State.

(6) Sub-paragraph (4) shall have effect subject to so much of any transfer scheme (including the one that gives rise to the liability) as makes provision for the transfer of any liability under that sub-paragraph to OFCOM.

(7) Any dispute as to whether, or as to the person by whom, any compensation is to be paid under this paragraph, and any dispute as to the amount of compensation to be paid by a person, shall be referred to and determined--

(a) where the claimant requires the matter to be determined in England and Wales or in Northern Ireland, by an arbitrator appointed by the Lord Chancellor, or

(b) where the claimant requires the matter to be determined in Scotland, by an arbiter appointed by the Lord President of the Court of Session.

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