(1) Any person who is aggrieved by—
(a) the decision of a designated operator to require him to pay a deposit before he is provided with a relevant service, or
(b) by the amount which he is so required to pay,
may refer the matter to the Director.
(2) On any such reference the Director, or an arbitrator (or in Scotland an arbiter) appointed by him, shall consider whether the criteria settled under section 27H above—
(a) have been applied correctly, or
(b) are inappropriate in the particular case.
(3) If the Director or arbitrator (or arbiter) considers that the criteria have not been correctly applied, or that they are inappropriate in the particular case, he shall, unless the complaint has been withdrawn or it is otherwise inappropriate to proceed, determine—
(a) whether the person concerned is to be required to pay a deposit, and
(b) if so, the amount which he is to be required to pay,
and give the appropriate direction to the designated operator.
(4) Any person giving a direction under subsection (3) above shall include in the direction his reasons for reaching his decision with respect to the complaint.
(5) The practice and procedure to be followed in connection with a complaint under subsection (1) above shall be determined by the Director.
(6) A direction under this section—
(a) may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person giving the direction) as that person considers appropriate; and
(b) shall be final and—
(i) in England and Wales and in Northern Ireland enforceable, in so far as it includes such provision as to costs or expenses, as if it were a judgment of a county court; and
(ii) in Scotland, enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.
(7) In including in a direction under this section any such provision as to costs or expenses, the person giving the direction shall have regard to the conduct and means of the parties and any other relevant circumstances.
Where any person has failed to pay any charges in connection with the provision of any relevant service by a designated operator, no power of that designated operator to discontinue the provision of that service shall be exercised against him as respects any amount which is genuinely in dispute.
(1) Sections 16 to 18 above shall apply in relation to a designated operator as if it were a condition of the licence granted to him under section 7 above that he shall—
(a) achieve the standards of overall performance determined in relation to him under section 27B above;
(b) take steps to inform those of his customers to whom he supplies relevant services about—
(i) those standards, and
(ii) the levels of performance which he has achieved as respects those standards,
in accordance with section 27D above;
(c) comply with—
(i) the requirements of section 27E above, and
(ii) any direction given by the Director under subsection (4) or (6) of that section;
(d) comply with any order made under section 27F(3) above;
(e) comply with any direction given by the Director under section 27H(6) above;
(f) comply with any direction given under section 27I(3) above; and
(g) comply with the requirements of section 27J above.
(2) For the purposes of the application by this section of sections 16 to 18 above, any term of a licence granted under section 7 above which has or which might have the effect—
(a) of excepting a designated operator from liability for a contravention of a condition of that licence, or
(b) otherwise restricting any such liability,
shall not apply in relation to any contravention of the condition mentioned in subsection (1) above.
(1) For the purposes of sections 27A to 27K above—
“designated operator” means any public telecommunications operator designated for the purposes of those sections by order made by the Secretary of State; and
“relevant services” means—
any voice telephony service, telephone rental service, directory service, directory information service or facsimile transmission service provided for occupiers of residential or single line premises; and
any public call box service.
(2) The Secretary of State shall not exercise his power under subsection (1) above to designate a telecommunications operator unless he is satisfied that the operator provides at least 25 per cent. of the voice telephony services supplied within the area in relation to which he is a public telecommunications operator.
(3) For the purposes of this section—
“public call box service” means a service which is provided by a designated operator and which consists of the provision of telecommunication apparatus which—
is owned and operated by the designated operator;
gives access to a voice telephony service; and
is intended for use by members of the public generally;
“directory service” means a service which consists of the preparation and provision of a list (which may be made available in separate parts and through different media) of customers of a designated operator which is not arranged by reference to a description of the trades, professions or businesses carried on by those customers;
“directory information service” has the same meaning as in section 4(3) above;
“facsimile transmission service” means a telecommunication service for the transmission of electronic signals by a designated operator, over exchange lines provided by him, for the purposes of making a facsimile of a document;
“hard wired telephone” means a telephone of a kind which can only be connected to a public telecommunication system by means other than—
the insertion of a plug into a socket; or
wireless telegraphy;
“single line premises” means premises which are not residential premises but which are served by a single exchange line provided by the designated operator;
“telephone rental service” means a service consisting in the hiring out of any hard wired telephone which is capable of emitting or receiving signals which have been, or are to be, conveyed by means of a public telecommunication system run by a designated operator;
“voice telephony service” means a telecommunication service for the conveyance of speech over exchange lines provided by the designated operator.
28 Information etc. to be marked on or to accompany telecommunication apparatus.
(1) Where it appears to the Secretary of State expedient that any description of telecommunication apparatus should be marked with or accompanied by any information or instruction relating to the apparatus or its connection or use, the Secretary of State may by order impose requirements for securing that apparatus of that description is so marked or accompanied, and regulate or prohibit the supply of any such apparatus with respect to which the requirements are not complied with; and the requirements may extend to the form and manner in which the information or instruction is to be given.
(2) Where an order under this section is in force with respect to telecommunication apparatus of any description, any person who, in the course of any trade or business, supplies or offers to supply telecommunication apparatus of that description in contravention of the order shall, subject to subsection (3) below, be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(3) Subsections (4) to (6) of section 5 above shall apply for the purposes of this section as they apply for the purposes of that section.
(4) An order under this section may, in the case of telecommunication apparatus supplied in circumstances where the information or instruction required by the order would not be conveyed until after delivery, require the whole or part thereof to be also displayed near the apparatus.
(5) For the purposes of this section a person exposing telecommunication apparatus for supply or having telecommunication apparatus in his possession for supply shall be deemed to offer to supply it.
(6) In this section and section 29 below “supply” shall have the same meaning as it has in Part II of the Consumer Protection Act 1987.
29 Information etc. to be given in advertisements.
(1) Where it appears to the Secretary of State expedient that any description of advertisements of telecommunication apparatus should contain or refer to any information relating to the apparatus or its connection or use, the Secretary of State may by order impose requirements as to the inclusion of that information, or an indication of the means by which it may be obtained, in advertisements of that description.
(2) Where an advertisement of any telecommunication apparatus to be supplied in the course of any trade or business fails to comply with any requirement imposed under this section, any person who publishes the advertisement shall, subject to subsections (3) and (4) below, be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(3) Subsections (4) to (6) of section 5 above shall apply for the purposes of this section as they apply for the purposes of that section.
(4) In any proceedings for an offence under this section it shall be a defence for the person charged to prove that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisements for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence under this section.
(5) An order under this section may specify the form and manner in which any information or indication required by the order is to be included in advertisements of any description.
(6) In this section “advertisement” includes a catalogue, a circular and a price list.
(1) The Director or a relevant authority shall have power to purchase telecommunication apparatus, and to authorise any of his or their officers to purchase telecommunication apparatus on his or their behalf, for the purpose of ascertaining whether sections 28 and 29 above and orders made under those sections (in this section referred to as “the relevant provisions”) are being complied with.
(2) The Director shall have power to enforce the relevant provisions and every local weights and measures authority in Great Britain shall have power to enforce those provisions within their area; but nothing in this subsection shall be construed as authorising the Director or a local weights and measures authority to institute proceedings in Scotland for an offence.
(3) In this section “relevant authority” means—
(a) in relation to Great Britain, the Secretary of State or a local weights and measures authority on whom a power to enforce the relevant provisions is conferred by subsection (2) above;
(b) in relation to Northern Ireland, the Department of Economic Development for Northern Ireland.
(1) In Schedule 3 to the Local Government Act 1974 (hereditaments to which section 19(1) of that Act applies) for paragraph 5A (hereditaments occupied by British Telecommunications by certain property used for the purposes of telecommunication services) there shall be substituted the following paragraph—
5A Any hereditament occupied by a telecommunications operator (within the meaning of the Telecommunications Act 1984) by any such property as follows, namely, posts, wires, underground cables and ducts, telephone kiosks and other equipment being property used for the purpose of providing telecommunication services.
(2) Where an order made under the said section 19 applies to hereditaments occupied by a telecommunications operator by any such property as aforesaid, that operator shall be treated, for the purposes of the law relating to rating, as not being a public utility undertaking.
(3) This section extends to England and Wales only.
(1) In paragraph 5 of Schedule 1 to the Local Government (Scotland) Act 1975 (lands and heritages to which section 6(1) of that Act applies and occupied by British Telecommunications by certain property used for the purposes of telecommunication services)—
(a) for the words “British Telecommunications” there shall be substituted the words “ a telecommunications operator (within the meaning of the Telecommunications Act 1984) ”; and
(b) for the words from “not within” to “purposes of” there shall be substituted the words “ , being property used for the purpose of providing ”.
(2) This section extends to Scotland only.
34 Compulsory purchase of land in England and Wales.
(1) Subject to subsection (2) below, the Secretary of State may authorise a public telecommunications operator to purchase compulsorily any land in England and Wales which is required by the operator for, or in connection with, the establishment or running of the operator’s system or as to which it can reasonably be foreseen that it will be so required; and the Acquisition of Land Act 1981 shall apply to any compulsory purchase under this section as if the operator were a local authority within the meaning of that Act.
(2) No order shall be made authorising a compulsory purchase under this section except with the consent of the Director.
(3) The power of purchasing land compulsorily under this section includes power to acquire an easement or other right over land by the creation of a new right.
(4) The following provisions of the Town and Country Planning Act 1990 shall have effect in relation to land acquired compulsorily by a public telecommunications operator under this section as they have effect in relation to land acquired compulsorily by statutory undertakers under any other enactment, namely—
(a) sections 238 to 240 (use and development of consecrated land and burial grounds);
(b) section 241 (use and development of land for open spaces); and
(c) sections 271 to 274 (extinguishment of rights of way, and rights as to apparatus, of statutory undertakers).
(5) Where a public telecommunications operator has acquired any land under this section, he shall not dispose of that land or of any interest or right in or over it except with the consent of the Director.
(1) Subject to subsection (2) below, the Secretary of State may authorise a public telecommunications operator to purchase compulsorily any land in Scotland which is required by the operator for, or in connection with, the establishment or running of the operator’s system or as to which it can reasonably be foreseen that it will be so required; and the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply to any compulsory purchase under this section as if the operator were a local authority within the meaning of that Act and as if this section had been in force immediately before the commencement of that Act.
(2) No order shall be made authorising a compulsory purchase under this section except with the consent of the Director.
(3) The power of purchasing land compulsorily under this section includes power to acquire a servitude or other right over land by the creation of a new right.
(4) The following provisions of the Town and Country Planning (Scotland) Act 1997 shall have effect in relation to land acquired compulsorily by a public telecommunications operator under this section as they have effect in relation to land acquired compulsorily by statutory undertakers under any other enactment, namely—
(a) section 197 (provisions as to churches and burial grounds);
(b) section 198 (use and development of land for open spaces); and
(c) sections 224 to 227 (extinguishment of rights of way, and rights as to apparatus, of statutory undertakers).
(5) Where a public telecommunications operator has acquired land under this section, he shall not dispose of that land or of any interest or right in or over it except with the consent of the Director.
36 Compulsory purchase of land in Northern Ireland.
(1) Where a public telecommunications operator proposes to acquire, otherwise than by agreement, any land in Northern Ireland required by him for, or in connection with, the establishment or running of his system or as to which it can reasonably be foreseen that it will be so required, he may, with the consent of the Director, apply to the Secretary of State for an order vesting that land in him and the Secretary of State shall have power to make such an order.
(2) The power of acquiring land compulsorily under this section shall include power to acquire, by the creation of a new right, an easement or other right over land.
(3) Where a public telecommunications operator has acquired any land under this section, he shall not dispose of it except with the consent of the Director.
(4) For the purposes of the acquisition of land by means of a vesting order under this section, Schedule 6 to the Local Government Act (Northern Ireland) 1972 and Schedule 8 to the Health and Personal Social Services (Northern Ireland) Order 1972 are hereby incorporated in this Act subject to the modifications specified in subsection (5) below.
(5) The said modifications are as follows—
(a) for any reference in the said Schedule 6 to a council there shall be substituted a reference to the operator;
(b) for any reference in either Schedule to the Department there shall be substituted a reference to the Secretary of State;
(c) for any reference in either Schedule to the Act or Order in question there shall be substituted a reference to this Act;
(d) in paragraph 6(2) of the said Schedule 6, for the words from “the fund” onwards there shall be substituted the words “ funds of the operator (in this Schedule referred to as "the compensation fund’) and shall be discharged by payments made by the operator ”; and
(e) in paragraph 12(2) of that Schedule for the words “the clerk of the council” there shall be substituted the words “ such person as may be designated for the purposes of this Schedule by the operator ”.
(6) The enactments for the time being in force relating to the assessment of compensation in respect of land vested in a district council by an order made under Schedule 6 to the Local Government Act (Northern Ireland) 1972 shall, subject to any necessary modifications, apply in relation to any land vested in a public telecommunications operator by an order made under this section.
(7) In this section “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954.
37 Entry, for exploratory purposes, on land in England and Wales.
(1) A person nominated by a public telecommunications operator and duly authorised in writing by the Secretary of State may, at any reasonable time, enter upon and survey any land in England and Wales, other than land covered by buildings or used as a garden or pleasure ground, for the purpose of ascertaining whether the land would be suitable for use by the operator for, or in connection with, the establishment or running of the operator’s system.
(2) Sections 324(8), 325(1) to (5), (8) and (9) of the Town and Country Planning Act 1990 (which contain supplementary provisions relating to the powers of entry conferred by section 324(1) to (7) thereof) shall have effect in relation to the power conferred by this section as they have effect in relation to the powers conferred by the said section 324, subject however to the following modifications, namely—
(a) that section 324(8) (which relates to power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals therein) shall so have effect as if the words “or the presence of minerals therein” were omitted; and
(b) that section 325(1) (which requires twenty-four hours’ notice to be given of an intended entry upon occupied land) shall so have effect as if for the words “twenty-four hours” there were substituted the words “ twenty-eight days ”.
(3) Where, in an exercise of the power conferred by this section, any damage is caused to land or to chattels, the operator shall make good the damage or pay to every person interested in the land or chattels compensation in respect of the damage; and where, in consequence of an exercise of that power, any person is disturbed in his enjoyment of any land or chattels, the operator shall pay to that person compensation in respect of the disturbance.
(4) Section 118 of the said Act of 1990 (which provides for the determination of disputes as to compensation under Part IV of that Act) shall apply to any question of disputed compensation under this section.
38 Entry, for exploratory purposes, on land in Scotland.
(1) A person nominated by a public telecommunications operator and duly authorised in writing by the Secretary of State may, at any reasonable time, enter upon and survey any land in Scotland, other than land covered by buildings or used as a garden or pleasure ground, for the purpose of ascertaining whether the land would be suitable for use by the operator for, or in connection with, the establishment or running of the operator’s system.
(2) Sections 269(6) and 270(1) to (5), (8) and (9) of the Town and Country Planning (Scotland) Act 1997 (supplementary provisions as to powers of entry) shall have effect in relation to the power conferred by this section as they have effect in relation to the powers conferred by the said section 269, subject to the following modifications, namely—
(a) that section 270(1) (twenty-four hours’ notice to be given of an intended entry upon occupied land) shall so have effect as if for the words “twenty-four hours” there were substituted the words “ twenty-eight days ”; and
(b) that section 269(6) (power to search and bore for minerals etc.) shall so have effect as if the words “or the presence of minerals therein” were omitted.
(3) Where, in an exercise of the power conferred by this section, any damage is caused to land or to corporeal moveables, the operator shall make good the damage or pay to every person interested in the land or corporeal moveables compensation in respect of the damage; and where, in consequence of an exercise of that power, any person is disturbed in his enjoyment of any land or corporeal moveables, the operator shall pay to that person compensation in respect of the disturbance.
(4) Any question arising under this section as to the effect of damage or as to the amount of compensation shall, in the case of dispute, be determined by arbitration, and the reference in such an arbitration shall be to a single arbiter to be appointed by agreement between the parties or, in default of an agreement, by the Secretary of State.
39 Entry, for exploratory purposes, on land in Northern Ireland.
(1) A person nominated by a public telecommunications operator and duly authorised in writing by the Secretary of State may, at any reasonable time, enter upon and survey any land in Northern Ireland, other than land covered by buildings or used as a garden or pleasure ground, for the purpose of ascertaining whether the land would be suitable for use by the operator for, or in connection with, the establishment or running of the operator’s system.
(2) Section 40(2) to (5) and (8) of the Land Development Values (Compensation) Act (Northern Ireland) 1965 (which contains supplementary provisions relating to the power of entry conferred by subsection (1) of that section) shall have effect in relation to the power conferred by this section as it has effect in relation to the power conferred by the said subsection (1), subject however to the following modifications, namely—
(a) that section 40(2) (which relates to power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals therein) shall so have effect as if the words “or the presence of minerals therein” were omitted; and
(b) that section 40(3)(b) (which requires three days’ notice to be given of an intended entry upon occupied land) shall so have effect as if for the word “three” there were substituted the word “ twenty-eight ”.
(3) Where, in an exercise of the power conferred by this section, any damage is caused to land or to chattels, the operator shall make good the damage or pay to every person interested in the land or chattels, compensation in respect of the damage; and where in consequence of an exercise of that power, any person is disturbed in his enjoyment of any land or chattels, the operator shall pay to that person compensation in respect of the disturbance.
(4) Section 31 of the said Act of 1965 (which provides for the determination of disputes as to compensation under Part III of that Act) shall apply to any question of disputed compensation under this section.
(1) For the purpose of the acquisition by agreement by a public telecommunications operator of land in England and Wales the provisions of Part I of the Compulsory Purchase Act 1965 (so far as applicable) other than sections 4 to 8, section 27 and section 31 shall apply.
(2) For the purpose of the acquisition by agreement by a public telecommunications operator of land in Scotland, section 109(2) of the Town and Country Planning (Scotland) Act 1972 (incorporation of Lands Clauses Acts) shall, with any necessary modifications, apply for the purposes of this Act as it applies for the purposes of that Act.
(3) For the purpose of the acquisition by agreement by a public telecommunications operator of land in Northern Ireland, the Lands Clauses Acts shall be incorporated with this Act except for sections 127 to 133 (sale of superfluous land) and sections 150 and 151 (access to the special Act) of the Lands Clauses Consolidation Act 1845.
The Chancellor and Council of the Duchy of Lancaster may, if they think fit, agree with a public telecommunications operator for the sale, and absolutely make sale, for such sum of money as appears to them to be sufficient consideration for the same, of any land belonging to Her Majesty in right of the Duchy of Lancaster which the operator seeks to acquire for, or in connection with, the establishment or running of his system.
(1) A person who dishonestly obtains a service to which this subsection applies with intent to avoid payment of any charge applicable to the provision of that service shall be guilty of an offence and liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
(2) Subsection (1) above applies to any service (other than a service such as is mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988) which is provided by means of a telecommunication system the running of which is authorised by a licence granted under section 7 above.
42A Possession or supply of anything for fraudulent purpose in connection with use of telecommunication system.
(1) Subsection (2) below applies if a person has in his custody or under his control anything (other than an unauthorised decoder as defined in section 297A(4) of the Copyright, Designs and Patents Act 1988) which may be used for the purpose of obtaining, or for a purpose connected with the obtaining of, a service to which section 42(1) above applies.
(2) If the person intends—
(a) to use the thing—
(i) to obtain such a service dishonestly, or
(ii) for a purpose connected with the dishonest obtaining of such a service,
(b) dishonestly to allow the thing to be used to obtain such a service, or
(c) to allow the thing to be used for a purpose connected with the dishonest obtaining of such a service,
he shall be guilty of an offence.
(3) Subsection (4) below applies if a person supplies or offers to supply anything (other than an unauthorised decoder as defined in section 297A(4) of the Copyright, Designs and Patents Act 1988)which may be used for the purpose of obtaining, or for a purpose connected with the obtaining of, a service to which section 42(1) above applies.
(4) If the person supplying or offering to supply the thing knows or believes that the person to whom it is supplied or offered intends or intends if it is supplied to him—
(a) to use it—
(i) to obtain such a service dishonestly, or
(ii) for a purpose connected with the dishonest obtaining of such a service,
(b) dishonestly to allow it to be used to obtain such a service, or
(c) to allow it to be used for a purpose connected with the dishonest obtaining of such a service,
he shall be guilty of an offence.
(5) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both, and
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.
(6) In this section, references to use of a thing include, in the case of a thing which is used to record any data, use of any of the data.
43 Improper use of public telecommunication system.
(1) A person who—
(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system,
shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.
(2) Subsection (1) above does not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990).
(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally modifies or interferes with the contents of a message sent by means of that system shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) above shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally discloses to any person —
(a) the contents of any message which has been intercepted in the course of its transmission by means of that system; or
(b) any information concerning the use made of telecommunication services provided for any other person by means of that system,
shall be guilty of an offence.
(2) Subsection (1) above does not apply to any disclosure made—
(a) in accordance with the order of any court or for the purposes of any criminal proceedings;
(b) in accordance with any warrant, authorisation or notice issued, granted or given under any provision of the Regulation of Investigatory Powers Act 2000;
(c) in compliance with any requirement imposed (apart from that Act) in consequence of the exercise by any person of any statutory power exercisable by him for the purpose of obtaining any document or other information; or
(d) in pursuance of any duty under that Act of 2000, or under Part III of the Police Act 1997, to provide information or produce any document to the Interception of Communications Commissioner or to the tribunal established under section 65 of that Act of 2000.
(3) In subsection (2) above “criminal proceedings” and “statutory power” have the same meanings as in the Regulation of Investigatory Powers Act 2000.
(4) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
46 Assaults etc. on persons engaged in the business of public telecommunications operator.
(1) A person who—
(a) assaults or intentionally obstructs a person engaged in the business of a public telecommunications operator; or
(b) whilst in any premises used for the purposes of the business of such an operator, intentionally obstructs the course of business of the operator,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) Any person engaged in the business of a public telecommunications operator may require any person guilty of an offence under subsection (1) above to leave premises used for the purposes of that business and, if any such offender who is so required refuses or fails to comply with the requirement, he shall be liable on summary conviction to a further fine not exceeding level 3 on the standard scale and may be removed by a person engaged in that business; and any constable shall on demand remove or assist in removing any such offender.
(1) Any power under this Part of this Act to make regulations shall be exercisable by statutory instrument.
(2) Any statutory instrument containing regulations made by the Secretary of State under this Part of this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(3) Any such regulations may—
(a) provide for the determination of questions of fact or of law which may arise in giving effect to the regulations;
(b) make provision regulating (otherwise than in relation to any court proceedings) any matters relating to the practice and procedure to be followed in connection with the determination of such questions;
(c) make provision as to the mode of proof of any matter;
(d) make provision as to parties and their representation;
(e) provide for the right to appear before and be heard by the Secretary of State, the Director and other authorities;
(f) make provision as to awarding costs or expenses of proceedings for the determination of such questions, including the amount of the costs or expenses and the enforcement of the awards;
(g) provide for anything falling to be determined under the regulations to be determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons, as may be prescribed by the regulations;
(h) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
(i) make such supplemental, consequential and transitional provision as the Secretary of State or, as the case may be, the Director considers appropriate.
(4) Any such regulations which prescribe a period within which things are to be done may provide for extending the period so prescribed.
(1) This section shall apply to the following decisions of the Secretary of State or the Director under this Part taken on or after 20th December 1999—
(a) a decision to grant or refuse to grant a licence under section 7;
(b) a decision to include within a licence on its grant particular provisions—
(i) describing the telecommunication systems authorised to be run under the licence;
(ii) describing the connections authorised to be made;
(iii) describing the telecommunication services authorised to be provided;
(iv) imposing a condition; or
(v) applying the telecommunications code to the licensee subject to such exceptions and conditions as may be included in the licence;
(c) a decision with regard to the designation under section 9 of a telecommunication system as a public telecommunication system;
(d) a decision with regard to the modification of any exception or condition included in a licence as mentioned in section 10(3);
(da) a decision with regard to the modification under section 12 of a condition of a licence granted under section 7 above to a particular person;
(e) a decision to exercise any power contained in a licence to give a direction or consent or to make any determination;
(f) a decision with regard to the enforcement of conditions in a licence;
(g) a decision to revoke a licence;
(h) a decision with regard to approval of any person, apparatus or meter; and
(j) any other decison (other than a decision made under sections 12 to 15) in respect of which the rights or interests of a person running or wishing to run a telecommunication system under a licence or making or wishing to make any connection or providing or wishing to provide any telecommunication service by means of a telecommunication system licensed under this Act are materially affected.
(2) Subject to subsection (5) below, a person aggrieved by a decision to which this section applies may appeal against the decision on one or more of the following grounds—
(a) that a material error as to the facts has been made;
(b) that there was a material procedural error;
(c) that an error of law has been made; or
(d) that there was some other material illegality, including unreasonableness or lack of proportionality.
(3) In England and Wales and Northern Ireland, an appeal lies to the High Court, and in Scotland, an appeal lies to the Court of Session.
(4) The court determining an appeal may—
(a) dismiss the appeal; or
(b) quash the decision,
and where the court quashes a decision it may refer the matter to the Secretary of State or the Director (as the case may be) with a direction to reconsider it and reach a decision in accordance with the findings of the court.
(5) No appeal under this section shall be brought unless the leave of the court has been obtained.
(6) An appeal under this section shall be brought—
(a) in respect of a decision made under section 16, without unreasonable delay and in any event not later than 42 days from the date on which the Secretary of State or the Director made his decision; or
(b) in respect of any other decision to which this section applies, without unreasonable delay and in any event not later than three months from the date on which the Secretary of State or the Director made his decision, or within such other period as may be specified by rules of court.
(7) The effect of a decision to which an appeal under this section relates shall not, except where the court so orders, be suspended in consequence of the bringing of the appeal.
(8) Any proceedings under this section in the Court of Session shall be before the Lord Ordinary.
(1) It shall be the duty of the Director, so far as it appears to him practicable from time to time, to keep under review the carrying on both within and outside the United Kingdom of activities connected with telecommunications.
(2) It shall also be the duty of the Director, so far as it appears to him practicable from time to time, to collect information with respect to commercial activities connected with telecommunications carried on in the United Kingdom, and the persons by whom they are carried on, with a view to his becoming aware of, and ascertaining the circumstances relating to, matters with respect to which his functions are exercisable.
(3) The Secretary of State may give general directions indicating—
(a) considerations to which the Director should have particular regard in determining the order of priority in which matters are to be brought under review in the performance of his duty under subsection (1) or (2) above; and
(b) considerations to which, in cases where it appears to the Director that any of his functions are exercisable, he should have particular regard in determining whether to exercise those functions.
(4) It shall be the duty of the Director, where either he considers it expedient or he is requested by the Secretary of State or the Office of Fair Trading to do so, to give information, advice and assistance to the Secretary of State or the Office of Fair Trading with respect to any matter in respect of which any function of the Director is exercisable.
(1) The Director may arrange for the publication, in such form and in such manner as he may consider appropriate, of such information and advice as it may appear to him to be expedient to give to consumers, purchasers and other users of telecommunication services or telecommunication apparatus in the United Kingdom.
(2) In arranging for the publication of any such information or advice, the Director shall have regard to the need for excluding, so far as that is practicable,—
(a) any matter which relates to the private affairs of an individual, where the publication of that matter would or might, in the opinion of the Director, seriously and prejudicially affect the interests of that individual; and
(b) any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporate, where publication of that matter would or might, in the opinion of the Director, seriously and prejudicially affect the interests of that body.
(3) Without prejudice to the exercise of his powers under subsection (1) of this section, it shall be the duty of the Director to encourage relevant associations to prepare, and to disseminate to their members, codes of practice for guidance in safeguarding and promoting the interests of consumers, purchasers and other users of telecommunication services or telecommunication apparatus in the United Kingdom.
(3A) The Office of Fair Trading shall consult the Director before publishing under section 6 of the Enterprise Act 2002 any information or advice which may be published by the Director under this section.
(4) In this section “relevant association” means any association (whether incorporated or not) whose membership consists wholly or mainly of persons engaged in the provision of telecommunication services or the supply of telecommunication apparatus or of persons employed by or representing persons so engaged and whose objects or activities include the promotion of the interests of persons so engaged.
(1) It shall be the duty of the Director to consider any matter which—
(a) relates to telecommunication services provided or telecommunication apparatus supplied in the United Kingdom; and
(b) is the subject of a representation (other than one appearing to the Director to be frivolous) made to the Director by or on behalf of a person appearing to the Director to have an interest in that matter.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where any matter considered by the Director under subsection (1) above is one in respect of which any of his functions is exercisable, the Director shall, if he is required to do so or if he thinks fit, exercise that function with respect to that matter.
(4) Section 9 of the 1981 Act (users’ councils), which is superseded by this section and section 54 below, shall cease to have effect.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The functions to which subsection (2A) below applies shall be concurrent functions of the Director and the Office of Fair Trading.
(2A) This subsection applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with telecommunications.
(2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).
(3) The Director shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Tradingunder the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—
(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or
(b) conduct of the kind mentioned in section 18(1) of that Act,
which relate to commercial activities connected with telecommunications.
(3A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to the Office of Fair Trading are to be read as including a reference to the Director (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
(4) Before the Office of Fair Trading or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other.
(4A) Neither the Office of Fair Trading nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.
(5) It shall be the duty of the Director, for the purpose of assisting the Commission in carrying out an investigation on a reference made to them by the Director by virtue of subsection (2) . . . above, to give to the Commission—
(a) any information which is in his possession and which relates to matters falling within the scope of the investigation, and which is either requested by the Commission for that purpose or is information which in his opinion it would be appropriate for that purpose to give to the Commission without any such request; and
(b) any other assistance which the Commission may require, and which it is within his power to give, in relation to any such matters,
and the Commission, for the purposes of carrying out any such investigation, shall take into account any information given to them for that purpose under this subsection.
(6) If any question arises in any particular case as to the jurisdiction of the Director under any of the provisions mentioned insubsection (2A) or (3) above . . . . . ., that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—
(a) Part 4 of the Enterprise Act 2002; or
(b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),
by or in relation to the Director on the ground that it should have been done by or in relation to the Office of Fair Trading.
(6A) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Director by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Director.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51 Co-ordination of functions under Part II and wireless telegraphy functions.
(1) With a view to co-ordinating the exercise of functions under Part II of this Act and the Secretary of State’s licensing powers under section 1 of the Wireless Telegraphy Act 1949 (licensing of wireless telegraphy), it shall be the duty of the Director, where either he considers it expedient or he is requested by the Secretary of State to do so, to give to the Secretary of State—
(a) advice with respect to the exercise of those powers in cases where the running of a telecommunication system is involved; and
(b) information with respect to any matters appearing to him to be relevant to the exercise of those powers in such cases.
(2) The Director shall, in exercising his functions under Part II or Part III of this Act, have regard to such of the principles applied by the Secretary of State in exercising his licensing powers under section 1 of the said Act of 1949 as may from time to time be notified to the Director by the Secretary of State for the purposes of this subsection.
(3) For the purposes of this section—
(a) references to the licensing powers of the Secretary of State under section 1 of the said Act of 1949 are references to the powers of the Secretary of State with respect to the grant, variation or revocation of licences authorising the establishment, installation or use of stations for wireless telegraphy or wireless telegraphy apparatus; and
(b) the running of a telecommunication system is involved in cases where those powers are exercisable in relation to any station or apparatus which is in use or intended for use in running a telecommunication system.
(4) In this section “station for wireless telegraphy” and “wireless telegraphy apparatus” have the same meanings as in the said Act of 1949.
52 Power to give assistance in relation to certain proceedings.
(1) Where, in relation to any proceedings or prospective proceedings to which this section applies, any actual or prospective party to the proceedings (other than the telecommunications operator) applies to the Director for assistance under this section, the Director may grant the application if he thinks fit to do so—
(a) on the ground that the case raises a question of principle; or
(b) on the ground that it is unreasonable, having regard to the complexity of the case or to any other matter, to expect the applicant to deal with the case without any assistance under this section; or
(c) by reason of any other special consideration.
(2) This section applies to any proceedings in which there falls to be determined any question arising under or in connection with—
(a) the telecommunications code as applied to a telecommunications operator in relation to any part or locality of the United Kingdom; or
(b) any exception or condition subject to which that code has effect as so applied.
(3) Assistance by the Director under this section may include—
(a) giving advice;
(b) procuring or attempting to procure the settlement of the matter in dispute;
(c) arranging for the giving of advice or assistance by a solicitor or counsel;
(d) arranging for representation by a solicitor or counsel, including such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;
(e) any other form of assistance which the Director may consider appropriate,
but paragraph (d) above shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend, and address the court in, any proceedings.
(4) In so far as expenses are incurred by the Director in providing the applicant with assistance under this section, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Director—
(a) on any costs or expenses which (whether by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and
(b) so far as relates to any costs or expenses, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.
(5) A charge conferred by subsection (4) above is subject to—
(a) any charge imposed by section 10(7) of the Access to Justice Act 1999 and any provision in, or made under, Part I of that Act for payment of any sum to the Legal Services Commission;
(b) any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 and any provision of that Act for payment of any sum into the Scottish Legal Aid Fund; or
(c) any charge imposed by Article 17(7) of the Access to Justice (Northern Ireland) Order 2003 and any provision in, or made under, Part II of that Order for the payment of any sum to the Department of Justice.
(6) Any expenses incurred by the Director in providing assistance under this section shall be paid out of money provided by Parliament; and any sums received by the Director by virtue of any charge conferred by subsection (4) above shall be paid into the Consolidated Fund.
(1) The Director may, for any relevant purpose, by notice in writing signed by him—
(a) require any person to produce, at a time and place specified in the notice, to the Director or to any person appointed by him for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or
(b) require any person carrying on any business to furnish to the Director such estimates, returns or other information as may be specified or described in the notice, and specify the time, the manner and the form in which any such estimates, returns or information are to be furnished;
but no person shall be compelled for any such purpose to produce any documents which he could not be compelled to produce in civil proceedings before the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in such proceedings.
(2) A person who refuses or, without reasonable excuse, fails to do anything duly required of him by a notice under subsection (1) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) A person who—
(a) intentionally alters, suppresses or destroys any document which he has been required by any such notice to produce; or
(b) in furnishing any estimate, return or other information required of him under any such notice, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular,
shall be guilty of an offence.
(4) A person guilty of an offence under subsection (3) above shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(5) If a person makes default in complying with a notice under subsection (1) of this section, the court may, on the application of the Director, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
(6) In this section—
“the court” has the same meaning as in section 18 above;
“relevant purpose” means any purpose connected with—
(a) the investigation of any offence under section 5, 28 or 29 above or any proceedings for any such offence;
(aa) the determination of any dispute referred to the Director under section 27F above;
(ab) the determination of any dispute referred to the Director in accordance with regulations made under section 27G above; or
(b) the exercise of the Director’s functions under section 16, 27E, 27H, 27I, 47, 49, 50, 51 or 52 aboveor under the Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998.
(1) The Director shall, as soon as practicable after the end of the year 1984 and of each subsequent calendar year, make to the Secretary of State a report on—
(a) his activities during that year; and
(b) the Commission’s activities during that year so far as relating to references made by him.
(2) Every such report shall include—
(a) a general survey of developments, during the year to which it relates, in respect of matters falling within the scope of the Director’s functions (including, in particular, those affecting small businesses or persons who are disabled or of pensionable age); and
(b) the reports which the advisory bodies established under section 54(1) or (4) above make to him on their activities during that year.
(3) The Secretary of State shall lay a copy of every report made by the Director under subsection (1) above before each House of Parliament, and shall arrange for every such report to be published in such manner as he may consider appropriate.
(4) The Director may also prepare such other reports as appear to him to be expedient with respect to such matters as are mentioned in subsection (2) above and may arrange for any such report to be published in such manner as he may consider appropriate.
(5) In making any report under this section the Director shall have regard to the need for excluding, so far as that is practicable, the matters specified in section 48(2)(a) and (b) above.
60 Vesting of property etc. of British Telecommunications in a company nominated by the Secretary of State.
(1) On such day as the Secretary of State may by order appoint for the purposes of this Part (in this Act referred to as “the transfer date”), all the property, rights and liabilities (other than the excepted liabilities) to which British Telecommunications was entitled or subject immediately before that date shall (subject to the following provisions of this section) become by virtue of this section property, rights and liabilities of a company nominated for the purposes of this section by the Secretary of State (in this Act referred to as “the successor company”).
(2) In this Act “the excepted liabilities” means the liabilities which subsist by virtue of a deed of covenant dated 22nd November 1978 and made between the Post Office and the then trustees of the Post Office Staff Superannuation Scheme.
(3) The Secretary of State may, after consulting British Telecommunications, by order nominate for the purposes of this section any company formed and registered under the Companies Act 1985 or the enactments thereby replaced; but on the transfer date the company in question must be a company limited by shares which is wholly owned by the Crown.
(4) References in this Act to property, rights and liabilities of British Telecommunications are references to all such property, rights and liabilities, whether or not capable of being transferred or assigned by British Telecommunications.
(5) It is hereby declared for the avoidance of doubt that—
(a) any reference in this Act to property of British Telecommunications is a reference to property of British Telecommunications whether situated in the United Kingdom or elsewhere; and
(b) any such reference to rights or liabilities of British Telecommunications is a reference to rights to which British Telecommunications is entitled, or (as the case may be) liabilities to which British Telecommunications is subject, whether under the law of the United Kingdom or of any part of the United Kingdom or under the law of any country or territory outside the United Kingdom.
(6) In the House of Commons Disqualification Act 1975 in Part III of Schedule 1 (other disqualifying offices) there shall be inserted (at the appropriate place in alphabetical order) the following entry—
Director of the successor company within the meaning of Part V of the Telecommunications Act 1984, being a director nominated or appointed by a Minister of the Crown or by a person acting on behalf of the Crown
;
and the like insertion shall be made in Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975.
61 Initial Government holding in the successor company.
(1) As a consequence of the vesting in the successor company by virtue of section 60 above of property, rights and liabilities of British Telecommunications, the successor company shall issue such securities of the company as the Secretary of State may from time to time direct—
(a) to the Secretary of State; or
(b) to any person entitled to require the issue of the securities following their initial allotment to the Secretary of State.
(2) The Secretary of State shall not give a direction under subsection (1) above at a time when the successor company has ceased to be wholly owned by the Crown.
(3) Securities required to be issued in pursuance of this section shall be issued or allotted at such time or times and on such terms (as to allotment) as the Secretary of State may direct.
(4) Shares issued in pursuance of this section—
(a) shall be of such nominal value as the Secretary of State may direct; and
(b) shall be issued as fully paid and treated for the purposes of the Companies Act 1985 as if they had been paid up by virtue of the payment to the successor company of their nominal value in cash.
(5) The Secretary of State may not exercise any power conferred on him by this section, or dispose of any securities issued or of any rights to securities initially allotted to him in pursuance of this section, without the consent of the Treasury.
(6) Any dividends or other sums received by the Treasury or the Secretary of State in right of or on the disposal of any securities or rights acquired by virtue of this section shall be paid into the Consolidated Fund.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62 Conversion of certain loans transferred to the successor company.
(1) The Secretary of State may by order extinguish all or any liabilities of the successor company to the Secretary of State in respect of the principal of such transferred loans as may be specified in the order; and the assets of the National Loans fund shall accordingly be reduced by amounts corresponding to any liabilities so extinguished.
(2) As a consequence of the extinguishment by an order under subsection (1) above of any such liabilities, the successor company shall issue such debentures of the company as the Secretary of State may direct—
(a) to the Secretary of State; or
(b) to any person entitled to require the issue of the debentures following their initial allotment to the Secretary of State.
(3) The Secretary of State shall not make an order or give a direction under this section at a time when the successor company has ceased to be wholly owned by the Crown.
(4) Except as may be agreed between the Secretary of State and the successor company—
(a) the aggregate of the principal sums payable under debentures issued in pursuance of this section shall be equal to the aggregate of the sums the liability to repay which is extinguished by the order; and
(b) the terms as to the payment of the principal sums so payable, and as to the payment of interest thereon, shall be the same as the corresponding terms of the transferred loans specified in the order.
(5) For the purposes of subsection (4) above any express or implied terms of a transferred loan shall be disregarded in so far as they relate to the early discharge of liabilities to make repayments of principal and payments of interest.
(6) Subsection (3) and subsections (5) to (7) of section 61 above shall apply for the purposes of this section as they apply for the purposes of that section.
(7) For the avoidance of doubt it is hereby declared that the principal sums payable under debentures issued in pursuance of this section are to be regarded as money lent for the purposes of section 400(9) of the Income and Corporation Taxes Act 1988 (write-off of government investment: restriction of tax losses).
(8) In this section “transferred loan” means any sum borrowed or treated as borrowed by British Telecommunications the liability to repay which vests in the successor company by virtue of section 60 above.
63 Government investment in securities of the successor company.
(1) The Treasury or, with the consent of the Treasury, the Secretary of State may at any time, acquire—
(a) securities of the successor company or of any subsidiary of the successor company; or
(b) rights to subscribe for any such securities.
(2) The Secretary of State may not dispose of any securities or rights acquired under this section without the consent of the Treasury.
(3) Any expenses incurred by the Treasury or the Secretary of State in consequence of the provisions of this section shall be paid out of money provided by Parliament.
(4) Any dividends or other sums received by the Treasury or the Secretary of State in right of, or on the disposal of, any securities or rights acquired under this section shall be paid into the Consolidated Fund.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .