SCHEDULES
SCHEDULE 18

Transitional Provisions

Savings for agreements referring to the termination of a 1984 Act licence
3
1
This paragraph applies where a term or condition of an agreement in force immediately before the abolition of licensing provides—
a
for the agreement, or a provision of it, to cease to have effect,
b
for the agreement to become capable of being terminated,
c
for a requirement to pay or repay an amount (whether liquidated or unliquidated) to arise under the agreement, or to arise earlier than it would otherwise have arisen,
d
for a security to become enforceable, or
e
for rights or obligations of a person under the agreement to be different or to be modified,
if a person (whether or not a party to the agreement) ceases to hold a licence under section 7 of the 1984 Act, or ceases to do so in a manner or in circumstances described in the agreement.
2
Where a person ceases to hold a licence in consequence of the provisions of this Act removing the requirement to hold a licence under section 7 of the 1984 Act—
a
the term or condition is not to apply; and
b
the rights and obligations of the parties to the agreement are to be the same (subject to the following sub-paragraphs) as they would have been had the person in question continued to hold such a licence.
3
In relation to times after the abolition of licensing, that term or condition is to have effect as if the reference in that term or condition—
a
to a person’s ceasing to hold a licence under section 7 of the 1984 Act, or
b
to his ceasing to do so in a particular manner or particular circumstances,
were a reference to his becoming subject to a direction under this Act by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service.
4
In sub-paragraph (3) the reference to a person’s becoming subject to a direction by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service—
a
does not include a reference to his becoming subject to a direction imposing a prohibition for a fixed period of less than eighteen months or to a direction that will have to be revoked if not confirmed; but
b
except in the case of a direction imposing a prohibition for such a fixed period, does include a reference to the confirmation of a direction that would otherwise have had to be revoked.
5
This paragraph does not apply in the case of a term or condition of an agreement if, on an application to the court by one or both of the parties to the agreement, the court directs—
a
that this paragraph is not to apply; or
b
that it is to apply with such modifications, or subject to the payment of such compensation, as the court may specify in the direction.
6
In determining whether to give a direction under sub-paragraph (5) or what modifications or compensation to specify in such a direction the court must have regard to the following—
a
whether either or both of the parties to the agreement contemplated the abolition of the licensing requirements of the 1984 Act when they entered into the agreement; and
b
the extent (if any) to which the provisions of this paragraph represent what it would have been reasonable for the parties to have agreed had they both known at that time what provision was to be made by this Act and when it was to come into force.
7
For the purposes of this paragraph—
a
references to ceasing to hold a licence include references to its expiring or being revoked; and
b
references to a licence under section 7 of the 1984 Act include references to a licence under that section of a particular description.
8
In this paragraph “the court” means the High Court or the Court of Session.
9
This paragraph has effect subject to paragraph 14.
Sch. 18 para. 3 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)
Sch. 18 para. 3 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))