TELECOMMUNICATIONS (JERSEY)
LAW 2002
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A LAW to
abolish the exclusive privilege of the States in telecommunications, to make
new provision about telecommunications that concern Jersey, to enable the
staff, assets and liabilities of the Telecommunications Board to be transferred
to one or more companies and to empower the Jersey Competition Regulatory
Authority to license any such company and other operators with respect to
telecommunications that concern Jersey, and for purposes incidental thereto and
connected therewith, sanctioned by Order of Her Majesty in Council of the
11th day of DECEMBER 2001
____________
(Registered on the 4th day of January 2002)
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STATES OF JERSEY
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The 31st day
of July 2001
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THE STATES, subject
to the sanction of Her Most Excellent Majesty in Council, have adopted the
following Law -
PART 1
PRELIMINARY
ARTICLE 1
Interpretation
(1) In
this Law, unless the context otherwise requires -
“apparatus”
means apparatus constructed or adapted for use in transmitting or receiving any
message that is to be or has been conveyed by means of a telecommunication
system or in conveying any message for the purposes of that system, and any
other apparatus designed or adapted for use in running a telecommunication
system including -
(a) any wire, optical
fibre, cable, tube, pipe or other similar thing, including its casing or
coating; and
(b) any structure,
including a kiosk or cabinet (but excluding any other building), pole,
underground chamber or other thing in, on, by or from which any other apparatus
is or may be installed, supported, carried or suspended;
“approval”
means an approval under Article 21;
“Authority”
means the Jersey Competition Regulatory Authority established by Article 2 of
the Competition Regulatory Authority (Jersey)
Law 2001;
“Board”
means the Telecommunications Board referred to in the Telecommunications (Jersey) Law 1972;
“business”
includes any trade, profession or employment, and any activity or undertaking
of a body of persons whether corporate or unincorporate that is carried on for
gain or reward or in the course of which goods are supplied or services are
provided otherwise than free of charge;
“class
licence” means a licence granted to all members of a class of persons,
being a class specified in the licence;
“Committee”
means the Industries Committee;
“the
company” means the company (or the companies) prescribed under Article
32;
“contravene”
includes fail to comply with;
“convey”
includes, except in the definition of telecommunication system, transmit,
switch and receive;
“Court”
means the Royal Court;
“debt
securities” means instruments creating or acknowledging indebtedness,
being instruments issued by or in respect of any company, and includes
debentures, bonds and certificates of deposit;
“documents”
includes accounts, deeds, writings and information recorded in any form,
whether or not legible to the naked eye;
“energy”
means electric, magnetic, electro-mechanical, electro-chemical or
electro-magnetic energy;
“function”
includes power, authority and duty;
“land”
means any corporeal hereditament, including a building, and land covered with
water, and also includes any interest in land or water and servitudes or rights
in, on or over land or water;
“licence”
means a licence granted under Part 5;
“licensee”
means a person to whom a licence is granted;
“message”
means -
(a) speech, music or other sounds;
(b) visual images;
(c) signals serving for the
impartation, whether as between persons and persons, things and things or
persons and things, of any matter otherwise than in the form of sounds or
visual images; or
(d) signals serving for the
actuation or control of machinery or apparatus;
“modify”
includes add to, amend, alter, replace, revoke and delete;
“principal
company” means a company referred to in Article 32(2)(a);
“public
telecommunication system” means any telecommunication system the running
of which is authorized by a licence that contains a condition designating the
system as a public telecommunication system;
“public
telecommunications operator” means a person who is licensed to run a
public telecommunication system;
“run”
in relation to any telecommunication system includes control any apparatus
connected to the telecommunication system;
“securities”,
in relation to any company, includes shares, debt securities and other
securities of that company, whether or not constituting a charge on the assets
of that company, and the right to subscribe for, or to acquire, such securities
and any other rights in connection with such securities;
“send”,
in relation to a message that has been initially transmitted from any place that
is outside Jersey, includes the reception of that message by means of a
telecommunication system or apparatus situated within Jersey coupled with the
immediate retransmission of that message by means of any telecommunication
system so situated;
“service”
does not include a service rendered under a contract of employment;
“subsidiary”
means subsidiary (within the meaning of the Companies (Jersey)
Law 1991) of a principal company;
“telecommunication
service” means -
(a) a service consisting in
the conveyance by means of a telecommunication system of any message;
(b) a service consisting in
the installation, maintenance, adjustment, repair, alteration, moving, removal
or replacement of apparatus that is or is to be connected to a
telecommunication system; or
(c) a directory information
service, that is to say, the provision by means of a telecommunication system
of directory information for the purpose of facilitating the use of a
telecommunication service referred to in paragraph (a) and provided by means of
that system;
“telecommunication
system” means a system for the conveyance of messages through the agency
of energy.
(2) For the purposes of
this Law, apparatus that is situated in Jersey
and -
(a) is connected to but not
comprised in a telecommunication system; or
(b) is connected to and
comprised in a telecommunication system that extends beyond Jersey,
shall be regarded as a telecommunication system
and any person who controls the apparatus shall be regarded as running the
system.
(3) A telecommunication
system is connected to another telecommunication system for the purposes of
this Law if it is being used, or is installed or connected for use, in
conveying any message that is to be or has been conveyed by means of that other
system.
(4) Apparatus is connected
to a telecommunication system for the purposes of this Law if it is being used,
or is installed or connected for use, in conveying any message or energy for
the purposes of that system or in transmitting or receiving any message or
energy that is to be or has been conveyed by means of that system.
(5) Notwithstanding
paragraph (3) or (4), the connection to a telecommunication system of any other
telecommunication system or any apparatus shall not be regarded as a connection
for the purposes of this Law if that other telecommunication system or that
apparatus would not be so connected but for its connection to a third
telecommunication system.
(6) For the purposes of
this Law, in the case of a class licence where the members of the class are not
named in the licence, an activity is carried on under the licence if the
activity would be a contravention of Article 2 if it were not for the fact that
the licence is in force.
(7) For the purposes of
this Law, a description or class may be framed by reference to any
circumstances whatsoever.
(8) A reference in this Law
to a Part, Article or Schedule by number only, and without further
identification, is a reference to the Part, Article or Schedule of that number
in this Law.
(9) A reference in an
Article or other division of this Law to a paragraph, sub-paragraph or clause
by number or letter only, and without further identification, is a reference to
the paragraph, sub-paragraph or clause of that number or letter contained in
the Article or other division of this Law.
(10) Unless the context otherwise
requires, a reference in this Law to an enactment is a reference to that
enactment as amended from time to time and includes a reference to that
enactment as extended or applied by or under another enactment, including
another provision of this Law.
(11) A reference in this Law to an
enactment of the United Kingdom is a reference to that enactment as amended
from time to time and includes a reference to that enactment as extended or
applied under another enactment of the United Kingdom.
PART 2
REQUIREMENT TO HOLD LICENCE
ARTICLE 2
Requirement for licence
(1) A person shall not run
part or all of a telecommunication system except under a licence in force in
respect of his running of the system.
(2) A contravention of a
condition contained in a licence does not constitute a contravention of
paragraph (1).
(3) A person shall not run
part or all of a telecommunication system except in accordance with the
conditions contained in the licence in force in respect of his running of the
system.
(4) A person shall not offer to do anything, or hold
himself out as being able and willing to do anything, which if carried out
would be a contravention of paragraph (1).
(5) A person shall not run
a telecommunication system -
(a) if any
telecommunication services are provided by means of the system in contravention
of the conditions contained in the licence in force in respect of his running
of the system;
(b) if any apparatus that
is not approved in accordance with Article 21 is connected to the system, and
that approval is required in respect of that apparatus as a condition contained
in the licence in force in respect of his running of the system; or
(c) if any other telecommunication
system, or any apparatus, is connected to the first-mentioned system and that
connection is a contravention of the conditions contained in the licence in
force in respect of his running of the first-mentioned system.
ARTICLE 3
Enforcement of requirement for
licence
(1) The obligation to
comply with Article 2(1) is a duty owed to any person who may be affected by a
failure so to comply.
(2) Where such a duty is
owed to any person -
(a) any breach of the duty
causing loss or damage to that person shall be actionable by that person; or
(b) any act that, by
inducing a breach of that duty or interfering with its performance, causes loss
or damage to that person, and that is done wholly or partly to achieve that
end, shall be actionable by that person.
(3) In addition -
(a) the Committee or the
Authority may bring civil proceedings, for an injunction or other appropriate
relief, to compel compliance with Article 2; and
(b) a person who
contravenes Article 2(1), (4) or (5) shall be guilty of an offence and liable
to imprisonment for a term not exceeding twelve months or to a fine, or both.
(4) In any proceedings
(whether civil or criminal) founded on a failure to comply with Article 2,
being a failure constituted by -
(a) running a part or all
of a telecommunication system otherwise than under a licence in force in
respect of his running of the system;
(b) running a
telecommunication system when there is connected to it any apparatus that has
not been approved in accordance with Article 21 and that approval is required
as a condition contained in the licence in force in respect of his running of
the system; or
(c) running a
telecommunication system when there is connected to it a system or apparatus
that is not authorized to be connected and that authorization is required as a
condition contained in the licence in force in respect of his running of the
first-mentioned system,
it shall be a defence for the defendant to
prove that the part, apparatus or system had, without his knowledge, been
connected to the telecommunication system in respect of his running of which
there is a licence in force.
(5) In any proceedings
(whether civil or criminal) founded on a failure to comply with Article 2,
being a failure constituted by providing a service, it shall be a defence for
the defendant to prove that the service had been provided without his
knowledge.
(6) Where a defence under
paragraph (4) or (5) involves an allegation that the failure to comply was
constituted by or was due to the act or default of another person, the
defendant shall not, without the leave of the Court, be entitled to rely on the
defence unless, at least seven days before the hearing, the defendant has
served on the plaintiff or prosecutor a notice in writing giving such
information identifying the other person or assisting in the identification of
the other person as is then in the defendant’s possession.
ARTICLE 4
Suspension of requirement
(1) Article 2 is not
contravened by an act or omission in respect of which the operation of that
Article has been suspended by an Order in force under this Article at the time
of the act or omission.
(2) After consultation with
the Authority, the Committee, if it considers that it is in the public interest
to do so in any circumstances, may by Order suspend in whole or in part the
operation of Article 2 on such terms and subject to such conditions as it sees
fit.
(3) Such a suspension has
effect -
(a) on and from such day
(not being a day earlier than the making of the Order); and
(b) for six months or, if a
shorter period is expressed in the Order, for that period instead.
(4) If the Committee amends
such an Order so as to extend the period of suspension, the aggregate period as
extended cannot exceed six months.
(5) The power under
paragraph (2) may not be exercised more than once in respect of any set of
circumstances, except to revoke or amend the Order made under that paragraph.
ARTICLE 5
Exceptions to requirement
(1) A person does not
contravene Article 2 just because he -
(a) runs a
telecommunication system in which the only agency involved in the conveyance of
messages is light and the messages thereby conveyed are so conveyed as to be
capable of being understood by use of the naked eye;
(b) runs a telecommunication
system, not connected to another telecommunication system, in which all the
apparatus comprised therein is situated either -
(i) on a single set
of premises in single occupation; or
(ii) in a road or rail
vehicle, or vessel, aircraft or hovercraft, or in two or more road or rail
vehicles, or vessels, aircraft or hovercraft, mechanically coupled together;
(c) runs a
telecommunication system, not connected to another telecommunication system, in
which -
(i) all the apparatus
is under his control; and
(ii) every message conveyed
by it is conveyed solely for his domestic purposes;
(d) runs a hearing aid or
connects a hearing aid to a telecommunication system; or
(e) does anything that the
States prescribe by Regulations.
(2) A person who carries on
business does not contravene Article 2 just because, for the purposes of that
business, he runs a telecommunication system that is not connected to another
telecommunication system and -
(a) only he is concerned in
the control of so much of the apparatus comprised in the system as is situated
within Jersey;
(b) no message is conveyed
by the telecommunication system by way of rendering a service to another
person; and
(c) no message is conveyed
by the telecommunication system except for the purpose of its being heard or
seen by him or an employee engaged in the conduct of the business, or imparting
matter to them, or actuating or controlling machinery or apparatus used in the
course of the conduct of the business.
(3) In this Article -
“hearing
aid” means a telecommunication system or apparatus in the case of which
every conveyance made by it is a conveyance by means of apparatus designed or
adapted to be worn by a person with hearing difficulties and the messages that
are thereby conveyed are sounds, or signals serving to actuate or control
apparatus that emits sounds, and are capable of being received or heard by the
ear and without more.
ARTICLE 6
Injunction
The
Court shall have power to grant an injunction in restraint of a continuing or
threatened contravention of Article 2.
PART 3
DUTIES
ARTICLE 7
Duties of Committee and Authority
(1) The Committee and the
Authority shall each have a primary duty to perform its functions under this
Law in such manner as it considers is best calculated to ensure that (so far as
in its view is reasonably practicable) such telecommunication services are
provided, both within Jersey and between Jersey and the rest of the world, as
satisfy all current and prospective demands for them, wherever arising.
(2) In so far as it is
consistent with paragraph (1) to do so, the Committee and the Authority shall
each -
(a) perform its functions
under this Law in such manner as it considers is best calculated to protect and
further the short-term and long-term interests of users within Jersey of
telecommunication services and apparatus, and perform them, wherever it
considers it appropriate, by promoting competition among persons engaged in
commercial activities connected with telecommunications in Jersey;
(b) perform its functions
under this Law in such manner as it considers is best calculated to promote
efficiency, economy and effectiveness in commercial activities connected with
telecommunications in Jersey;
(c) perform its functions
under this Law in such manner as it considers is best calculated to further the
economic interests of Jersey;
(d) perform its functions
under this Law in such manner as it considers is best calculated to impose a
minimum of restriction on persons engaged in commercial activities connected
with telecommunications in Jersey;
(e) in performing its
functions under this Law, have regard to the need to ensure that persons
engaged in commercial activities connected with telecommunications in Jersey
have sufficient financial and other resources to conduct those activities; and
(f) in performing its
functions under this Law, have regard to any special needs of persons who are
disabled or have limited financial resources or have particular needs.
(3) The Committee and the
Authority shall, in considering whether the services referred to in
paragraph (1) satisfy the demands referred to in paragraph (1), have
regard to -
(a) whether the services
are accessible to and affordable by the maximum number of business and domestic
users;
(b) whether there is
innovation in the services and their provision;
(c) whether the services
are of high quality and are reliable;
(d) whether users are able
to express their views about the provision of the services; and
(e) any objectives that the
States prescribe by Regulations, including, but not limited to -
(i) the provision of
a universal service, a social service or any form of cross-subsidized service;
and
(ii) the provision of
certain services at uniform tariffs or at tariffs that are cross-subsidized by
other tariffs.
(4) The States may, by
Regulations, modify paragraph (3)(a) - (d).
ARTICLE 8
Committee may direct or guide Authority
(1) The Committee may, if
it considers that it is desirable in the public interest to do so, give to the
Authority written directions in respect of the principles, procedures or
policies to be followed by the Authority in relation to the implementation of
any social or environmental policies in respect of telecommunications.
(2) The Committee may, if
it considers that it is desirable in the public interest to do so, give to the
Authority written guidance in respect of the principles, procedures or policies
to be followed by the Authority in relation to any other matter relating to the
performance by the Authority of its functions under this Law.
(3) It shall be the duty of
the Authority in carrying out any of its functions to comply with any such
direction and to consider (without necessarily complying with) any such
guidance.
(4) The Committee shall not
give directions or guidance under this Article without first consulting the
Authority.
(5) The Committee shall
notify the States of the directions and guidance given by it under this Article
and of any comments received by it from the Authority about the directions and
guidance.
(6) The Committee shall
cause a copy of that notification to be published in the Jersey Gazette or in
such other manner as the States by Regulations prescribe.
(7) A reference in this
Article to the public interest includes a reference to the economic interests
of Jersey.
(8) Paragraph (7) is
included only for the avoidance of doubt.
ARTICLE 9
Authority to survey industry and
consider representations
(1) In
order to facilitate the performance of its functions, the Authority shall, so
far as it considers it practicable to do so, keep under review, and gather
information about, the provision of telecommunication services in Jersey and elsewhere.
(2) The Authority shall
consider any representation made to it (other than one that is, in the opinion
of the Authority, frivolous or trivial, or more appropriately dealt with by
another person) concerning the installation or running of a telecommunication
system, the provision of telecommunication services or the supply of apparatus
in Jersey, being a representation made by a person who, in the opinion of the
Authority, has an interest in the matter of the representation.
PART 4
NOTICE, CONSULTATION AND APPEALS
ARTICLE 10
Interpretation
(1) For the purposes of
this Part -
“final
notice” means notice under Article 11(4);
“initial
notice” means notice under Article 11(1);
“specified
regulatory function” means any of the following functions of the
Authority -
(a) granting or refusing a
licence under Article 14;
(b) giving, revoking or
refusing consent, or making or revoking a determination, under Article 16(3);
(c) modifying, or refusing
to modify, a condition under Article 18;
(d) giving, or deciding not
to give, a direction under Article 19;
(e) revoking a licence
under Article 20;
(f) granting,
refusing or revoking an approval under Article 21;
(g) giving, revoking or
refusing consent or a direction, or making or revoking a determination, under
Article 21;
(h) any other function of
the Authority under this Law that the States prescribe by Regulations.
(2) Nothing in this Part
limits or excludes any other avenue of review concerning the exercise of a
specified regulatory function.
ARTICLE 11
Notice and consultation
(1) Before exercising a
specified regulatory function the Authority shall give initial notice -
(a) specifying the function
that it proposes to exercise and the action proposed in that exercise;
(b) stating the reason for the
proposed exercise;
(c) stating (whether by
specification or by formula) the date when the proposed exercise would take
effect, not being a date earlier than the twenty-ninth day after the day when
the notice is published or served (whichever is later) in accordance with this
Article;
(d) specifying the place
where the document giving effect to the proposed exercise may be inspected; and
(e) specifying the period
within which written representations or objections in respect of the proposed
exercise may be made.
(2) A document referred to
in paragraph (1)(d) shall, where the proposed exercise of the specified
regulatory function -
(a) would be the grant or
making of an instrument, being a licence, approval, consent, determination,
direction or other instrument - include a copy of that instrument; or
(b) would be the
modification of conditions contained in a licence - include a copy of the
conditions before modification and a copy in draft form of the conditions as
modified.
(3) Any person may make
representations or objections to the Authority about the proposed exercise of a
specified regulatory function within the period commencing on the earlier of
the following dates -
(a) the date when initial
notice (if any) of the proposed exercise is served on any person; or
(b) the date when initial
notice of the proposed exercise is published in accordance with this Article,
and ending at midnight on the twenty-eighth day after the later of those
dates.
(4) If any representations
or objections are made within that period, the Authority shall consider them
and then give final notice in relation to the proposed exercise of the
specified regulatory function.
(5) The final notice shall
-
(a) refer to the matters
contained in the initial notice;
(b) contain a summary of
the representations and objections;
(c) contain details of the
Authority’s response to them sufficient in content to enable it to be
understood and the reasons for it to be known;
(d) specify the place where
a document setting out the full text of the response may be inspected if the
full text is not contained in the final notice; and
(e) state whether or not
the Authority now intends to exercise the specified regulatory function, and if
it does so intend, the date (expressed by specification or by formula) when the
proposed exercise will take effect.
(6) The Authority shall
give initial or final notice in relation to a proposed exercise of a specified
regulatory function as follows -
(a) in a case where the
proposed exercise relates to a licence, or approval, held by a person named in
the licence or approval - by notice served on the person;
(b) in a case where the
proposed exercise is in response to an application made by a person not
referred to in sub-paragraph (a) - by notice served on the applicant;
(c) in every case, by
advertisement published in the Jersey Gazette, or in such other manner as the
States by Regulations prescribe, coupled with making available for inspection
the full text of the notice in such place as the advertisement specifies.
(7) The Authority shall
exercise a specified regulatory function as follows -
(a) in a case where the
exercise relates to a licence, or approval, held by a person named in the
licence or approval - by notice served on the person;
(b) in a case where the
exercise is in response to an application made by a person not referred to in
sub-paragraph (a) - by notice served on the applicant;
(c) in a case where the
exercise relates to a licence, or approval, held or to be held by a person not
named in the licence or approval, by notice that consists of an advertisement
published in the Jersey Gazette, or in such other manner as the States by
Regulations prescribe, coupled with making available for inspection the full
text of the notice in such place as the advertisement specifies.
(8) The Authority shall, on
demand, make a document referred to in paragraph (1)(d), (5)(d), (6)(c) or
(7)(c) available for inspection at reasonable hours and, on demand, supply
copies of it at reasonable cost.
(9) The exercise of a
specified regulatory function shall have effect only in accordance with such
terms of an initial notice as are referred to in paragraph (1)(a) and -
(a) if a representation or
objection has been made in accordance with paragraph (3) - on a date
specified in the relevant final notice, being a date that is later than the
twenty-eighth day after the final notice is published or served (whichever is
later) in accordance with paragraph (6); or
(b) if no representation or
objection has been made in accordance with paragraph (3) - on the date stated
in the initial notice.
(10) If, after considering any
representations or objections, the Authority wishes to change its proposal as
to the exercise (other than the date when it is to take effect), the Authority
shall issue a fresh initial notice about the exercise.
(11) Paragraph (10) is included only for
the avoidance of doubt.
ARTICLE 12
Appeals
(1) An appeal to the Court
is available against the exercise of a specified regulatory function, whether
or not the exercise has taken effect, as follows -
(a) if the exercise
consists of the refusal of an application - the applicant may appeal against
the refusal;
(b) if the exercise
consists of the grant of an approval - the holder of the approval may appeal
against the exercise so far as it concerns the imposition of any condition
contained in the approval;
(c) if the exercise
otherwise concerns an approval - the holder of the approval may appeal against
the exercise;
(d) if the exercise
consists of the grant of a licence - any person may appeal against the grant or
against the exercise so far as it concerns the imposition of any condition
contained in the licence;
(e) if the exercise
otherwise concerns a licence (excluding an exercise that concerns an approval
but including the giving of, or deciding not to give, a direction under
Article 19) - any person may appeal against the exercise.
(2) An appeal is available
under this Part only if notice of the appeal is lodged with the Court after
initial notice of the exercise is published in accordance with Article 11 and
before the twenty-ninth day after -
(a) in a case where no
final notice of the exercise is required to be published - the date when the
initial notice is published in accordance with Article 11; or
(b) in a case where final
notice of the exercise is required to be published - the date when the final
notice is published in accordance with Article 11,
or within such further period as the Court may
allow if it considers it desirable to do so in the interests of justice.
(3) For the purposes of
this Article, if the Authority has not given initial notice of the exercise of
a specified regulatory function in response to an application within 56 days
(or such longer period as may be agreed in writing between the relevant
applicant and the Authority) after the application has been served on the
Authority, the Authority shall be taken to have given initial notice of a
refusal of the application and to have published that notice in accordance with
Article 11 on the day after the last day of that period.
(4) In determining an
appeal under this Article, the Court is not restricted to a consideration of
questions of law or to the facts contained in an application, or other
information, before the Authority.
(5) When it determines an
appeal under this Article, the Court may -
(a) confirm the exercise
(or proposal) appealed against;
(b) refer the matter of the
exercise back to the Authority for its determination, or other action, in
accordance with the law; or
(c) exercise a specified
regulatory function (and do any incidental thing) in the same way as the
Authority could have done.
(6) The Court may make such
orders as it thinks appropriate, including ancillary orders and orders as to
costs.
ARTICLE 13
Delay in effect of certain actions
(1) When notice of an
appeal is lodged with the Court in accordance with this Part against the
exercise of a specified regulatory function, the exercise, if it has not taken
effect before the notice is lodged, shall not take effect (if at all) until
after the date when the appeal has been finally disposed of under this Part, or
such date as is specified in the relevant initial notice or final notice,
whichever is the latest date.
(2) For the purposes of
this Article, an appeal against an exercise of a specified regulatory function,
so far as it concerns the imposition of any condition contained in an approval
or licence (as referred to in Article 12(1)(b) or (d)), amounts to an
appeal against the grant of the approval or licence.
PART 5
AUTHORITY AS REGULATOR AND FACILITATOR
ARTICLE 14
Power to grant licence
(1) The Authority may grant
a licence for the running of any telecommunication system specified in the
licence.
(2) The Authority may
refuse a licence on such ground as the Authority sees fit.
(3) The Authority may
refuse a licence in respect of a person, or in respect of a class of persons
that includes a person, if the person has, within the previous five years -
(a) failed to comply with a
direction under Article 19 in respect of any licence; or
(b) committed an offence
against Article 54 in relation to any application made by that person under
this Law (including an application on behalf of a class that includes that
person).
(4) The Authority may
refuse a licence if -
(a) such reasonable fee as
the Authority determines has not been paid in respect of an application for the
licence;
(b) such information as the
Authority requires has not been furnished in respect of an application for the
licence; and
(c) such other requirements
as, in the opinion of the Authority, are appropriate (including, if the
Authority so requires, satisfying a third person with respect to any matter)
have not been met in respect of an application for the licence.
(5) Paragraphs (3) and (4)
do not limit the operation of paragraph (2).
ARTICLE 15
Nature of licence
(1) A licence may be
unconditional or subject to such conditions as are contained in it.
(2) A licence shall be in
writing, and shall, unless previously revoked, continue in force for the period
specified in the licence.
(3) A licence containing a
condition that designates the system to which the licence relates as a public
telecommunication system may authorize the relevant licensee to exercise any
power contained in Article 26 and specified in the licence.
(4) A licence may be
granted to a person named in the licence, or to persons (whether or not named
in the licence) of a class that is specified in the licence, but a licence
containing a condition that designates the system to which the licence relates
as a public telecommunication system may only be granted to a person named in
the licence.
ARTICLE 16
Licence conditions
(1) A licence may contain
conditions -
(a) that, in the opinion of
the Authority, are necessary or desirable, including (but not limited to)
conditions relating to, or imposing requirements for, any one or more of the
following -
(i) the provision by
a system of any telecommunication service authorized by the licence;
(ii) the provision of a
universal service, a social service or any form of cross-subsidized service;
(iii) standards of performance;
(iv) mechanisms for receiving and
resolving complaints against the licensee by users within Jersey
of the services provided under the licence and complaints against the licensee
by persons to whom the licensee has refused to provide services under the
licence;
(v) the exercise of the
powers contained in Part 6 that are authorized by the licence;
(b) that, in the opinion of
the Authority, are necessary or desirable, including (but not limited to)
conditions prohibiting, regulating, or requiring, any one or more of the
following -
(i) the provision by
the system that is the subject of the licence of any telecommunication service
or a telecommunication service of any description;
(ii) the connection to the
system that is the subject of the licence of any apparatus or apparatus of any
description;
(iii) the connection to the system
that is the subject of the licence of any other telecommunication system or of
a telecommunication system of any description;
(c) regulating the terms
and conditions that are included in, or requiring that specified terms and
conditions be included in, any contract between the licensee and any, or any
class of -
(i) user within Jersey of telecommunication services provided under the
licence; or
(ii) provider of
telecommunication services;
(d) requiring a payment to
the Authority on the grant of the licence or several payments during the period
when the licence is in force;
(e) requiring a person to
notify the Authority if he intends to run, or runs, a telecommunication system
under a class licence for which he makes no application;
(f) requiring the
licensee to provide to the Authority, in the form and at the times required by
it, such documents, accounts, estimates, returns or other information relating
to activities conducted by the licensee under a licence as the Authority may
specify;
(g) requiring the licensee
to make what, in the opinion of the Authority, is a fair contribution to the
costs of another licensee incurred because the latter is required to provide a
universal service, social service or any form of cross-subsidized service or to
provide a service at uniform tariffs or at tariffs that are cross-subsidized by
other tariffs;
(h) for the implementation
of any direction given to the Authority under Article 8, or of any measures
that the Authority is required to take under an Order under Article 56,
if, in the opinion of the Authority, the direction or measure needs to be
implemented by, or with the participation of, the licensee;
(i) for the
prevention or reduction of anti-competitive behaviour;
(j) that shall be
satisfied before, during or after the exercise of powers under Part 6;
(k) requiring that it is
only approved persons who carry out specified operations (or operations of a
specified class) with respect to the systems that the licence relates to; or
(l) requiring that it
is only approved apparatus that, in specified circumstances or in all
circumstances, is connected to the systems that the licence relates to.
(2) Conditions contained in
a licence may require the licensee -
(a) not to do, not to
continue to do or not to cease to do anything under the licence without the
prior consent of the Authority;
(b) to refer for
determination by the Authority any specified question, or any specified class
of questions; or
(c) to act on such a determination.
(3) The Authority has power
to give, refuse or revoke consent, and to make or revoke determinations, as
referred to in paragraph (2).
(4) Conditions contained in
a licence may relate to, or impose requirements about -
(a) competition in relation
to telecommunication services, telecommunication systems, apparatus and
telecommunication equipment;
(b) use and allocation of
the electromagnetic spectrum;
(c) numbering schemes,
capacity and allocation, customer databases and the sharing of such databases;
(d) interconnection among
telecommunication systems, apparatus and telecommunication equipment and their
interoperability and technical standards;
(e) providing
telecommunication services for or on behalf of other providers of telecommunication
services, whether the latter run telecommunication systems or not;
(f) co-location and
sharing of, and access to, facilities, telecommunication systems, apparatus and
telecommunication services; or
(g) a licensee’s
allowing the use of an intellectual property right held by the licensee.
(5) A licence may contain
conditions -
(a) in the interests of the
security of Jersey or in the interests of
encouraging or maintaining Jersey’s
relations with a country or territory; or
(b) in order to facilitate
-
(i) the discharge of
an international obligation; or
(ii) the attainment of any
other object that the Policy and Resources Committee has by Order prescribed
under Article 56.
(6) A licence may contain a
condition by which the telecommunication system to which it relates is
designated as a public telecommunication system.
ARTICLE 17
Licence fees
(1) Any payment, or fee,
required under this Law to be paid to the Authority in respect of a licence
(including any application fee) may be fixed from time to time at such amount
as is necessary to enable the Authority to recover its costs of establishment,
its short-term costs, and its long-term costs (whether those costs are actual
or projected or direct or apportioned) so far as the costs are referable to the
performance of the functions of the Authority under this Law.
(2) Such a fee may be fixed
as a percentage of the turnover or profit of a licensee or members of a class
of licensees, or on the basis of some other formula relating to a licensee or
members of a class of licensees, or on any other basis.
(3) Such a fee shall be
recoverable as a civil debt due to the Authority.
ARTICLE 18
Modification of licence conditions
(1) The Authority may, of
its own motion or on the application of any person, modify any condition
contained in a licence by virtue of Article 16.
(2) The Authority may
refuse to modify any condition so contained on such ground as the Authority
sees fit.
(3) The power to modify a
condition contained in a licence includes the power to insert a new condition
or amend or delete an existing condition but any new condition, or condition as
amended -
(a) may only be a condition
that could have been contained in the licence by virtue of Article 16 when the
licence was granted; and
(b) shall be taken, as from
the date when the modification takes effect, to be a condition contained in the
licence by virtue of that Article.
ARTICLE 19
Direction to comply with licence
conditions
(1) Where, in the opinion
of the Authority, a licensee is in contravention of a condition contained in a
licence, the Authority shall give a direction to the licensee to take steps, or
specified steps, to ensure compliance with that condition.
(2) The Authority shall not
give such a direction if it is satisfied that its duties under Article 7
preclude the giving of such a direction, that the contravention of the
condition is trivial or that the licensee is taking steps to comply with the
condition and to remedy the effects of the contravention.
(3) A direction shall -
(a) specify the licence to
which it relates;
(b) name the licensee or
specify the class of persons to whom the licence has been granted; and
(c) specify the condition
contravened.
(4) A direction -
(a) shall require the
licensee to act or not to act, according to the nature of the condition and the
contravention, in a manner specified in the direction;
(b) may require the
licensee to take steps, or specified steps, to remedy the effects of the
contravention; and
(c) may be modified at any
time by the Authority, but only by giving a new direction in accordance with
this Article.
(5) The obligation to
comply with a direction is a duty owed to any person who may be affected by the
failure to comply with the direction.
(6) Where a duty is owed
under paragraph (5) to any person -
(a) any breach of the duty
causing loss or damage to that person shall be actionable by that person; and
(b) any act that, by
inducing a breach of that duty or interfering with its performance, causes loss
or damage to that person and that is done wholly or partly in order to cause
the loss or damage to that person shall be actionable by that person.
(7) In any proceedings
brought against any person under paragraph (6)(a) it shall be a defence
for him to prove that he took all reasonable steps and exercised all due
diligence to ensure compliance with the direction.
(8) In addition to the
right of any person to bring civil proceedings as referred to in paragraph (6),
the Authority may bring civil proceedings, for an injunction or other
appropriate relief, to compel compliance with the direction.
ARTICLE 20
Revocation of licence
(1) The Authority may
revoke a licence held by a person, or revoke the operation of a licence in respect
of a person who is a member of a class of persons to whom a licence has been
granted, if the person has failed to comply with a direction given under
Article 19 in respect of that or any other licence held by the person.
(2) A licence ceases to be
in force in respect of a person when it, or its operation in respect of the
person, is revoked under this Article.
ARTICLE 21
Approval of apparatus and
contractors
(1) The Authority may
approve apparatus and persons where approval is required as a condition of a
licence, whether or not application is made to the Authority for the approval.
(2) The Authority may
refuse an approval on such ground as the Authority sees fit.
(3) The Authority may
refuse an approval if -
(a) such reasonable fee as
the Authority determines has not been paid in respect of an application for the
approval;
(b) such information as the
Authority requires has not been furnished in respect of the application; or
(c) such other requirements
as, in the opinion of the Authority, are appropriate (including, if the
Authority so requires, satisfying a third person with respect to any matter)
have not been met.
(4) Paragraph (3) does not
limit the operation of paragraph (2).
(5) An approval may be
confined to a specified telecommunication system or to a telecommunication
system that falls within a specified class, and may -
(a) apply to specified
apparatus or apparatus of a specified class; or
(b) authorize a particular
person, or persons of a specified class, to carry out a specified function or
functions of a specified class.
(6) If it is so expressed,
an approval is of no effect unless the conditions contained in it are complied
with.
(7) An approval may contain
such conditions as the Authority sees fit to impose on it, and they may include
a condition that -
(a) a person shall comply
with any direction of the Authority on any matter or class of matters specified
or described in the approval as subject to that direction;
(b) a person shall not do,
not continue to do, or not cease to do, anything under the approval without the
prior consent of the Authority;
(c) a third person shall be
satisfied as to any matter;
(d) a person shall refer
for determination by the Authority any specified question or specified class of
questions; or
(e) a person shall act on
such a determination.
(8) The approval of
apparatus, or of a person, by a person other than the Authority is, if the
Authority so determines, taken to be an approval by the Authority for the
purposes of this Article.
(9) The Authority has power
to grant, refuse or revoke an approval, direction or consent, or make or revoke
a determination, under this Article whenever it sees fit.
ARTICLE 22
General role of Authority
(1) In respect of the
following matters, the Authority may conduct research, act as facilitator,
co-operate with regulators or providers of telecommunication services, provide
advice, assistance and services and establish or approve schemes, standards and
arrangements -
(a) the matters listed in
Article 16(4)(a) - (g); and
(b) the manufacture, sale
and use of apparatus.
(2) The Authority may do
those things anywhere and with or for any person anywhere, whether in Jersey or elsewhere.
(3) The Authority may
require reasonable fees for the provision of any service under this Article.
(4) Such a fee shall be
recoverable as a civil debt due to the Authority.
ARTICLE 23
Power to require information
(1) The Authority may, for
any purpose connected with the investigation of an offence under this Law or
under Regulations made under this Law or with proceedings for such an offence
or with the exercise of the functions of the Authority under this Part, by
notice in writing -
(a) require any person to
produce to the Authority, or any person appointed by it for that purpose, any
documents specified or described in the notice that are in the custody, or
under the control, of the first-mentioned person and specify the time, manner
and form in which those documents are to be furnished; or
(b) require any person
carrying on any business to furnish to the Authority, and have verified, any
estimates, returns or other information specified or described in the notice
and specify the time, manner and form in which those estimates, returns or
information are to be furnished and verified.
(2) The Authority may -
(a) keep a document
produced under paragraph (1)(a) for a reasonable time; and
(b) take copies of such a
document.
(3) No person shall be
compelled for any purpose referred to in paragraph (1) to produce any document
that he cannot be compelled to produce in proceedings before the Court or, in
complying with any requirement to furnish information, to give any information
that he could not be compelled to give in evidence in those proceedings.
(4) Any person who refuses
or, without reasonable excuse, fails to comply with the requirements of a
notice under paragraph (1) shall be guilty of an offence and liable to a
fine not exceeding level 4 on the standard scale.
(5) A person who
intentionally alters, suppresses or destroys a document that is the subject of
a notice under paragraph (1) shall be guilty of an offence and liable to
imprisonment for a term not exceeding five years or to a fine, or both.
(6) Where a person fails to
comply with the requirements of a notice under paragraph (1) the Court
may, on application by the Authority, make an order requiring compliance, and
the order may provide that the costs of, and incidental to, the application
shall be paid by the person who failed to comply with the notice.
ARTICLE 24
Register
(1) The Authority shall
keep a register in which it shall enter details of the following -
(a) every licence;
(b) every exercise of a
specified regulatory function (within the meaning of Part 4) and every
notice in respect of that exercise;
(c) every direction given
under Article 19;
(d) every approval.
(2) In the case of an
approval taken to be an approval by the Authority for the purposes of
Article 21, it shall be sufficient to include in the register a reference
to the approval by citation or brief description or by reference to the class
of approvals in which the approval falls.
(3) The register shall be
open for inspection by the public during the hours determined by the Authority.
(4) The Authority shall
supply copies or extracts from the register on payment of such fee as the
Authority determines.
PART 6
POWERS RELATING TO LAND
ARTICLE 25
Interpretation
(1) In this Part,
“road” means a road, bridge, viaduct or subway that is repairable
at the expense of the States or any parish, and includes a carriageway,
footpath, verge and any other part of such a road, bridge, viaduct or subway.
(2) Nothing in or under
this Part, except Article 29, confers a right of entry.
ARTICLE 26
Installation of apparatus on roads
(1) A public
telecommunications operator may (to the extent that its licence specifies, and
subject to the conditions that it specifies) -
(a) install, maintain, do
work on, remove or operate any apparatus below, on or above any road; or
(b) break up and open any
road for that purpose.
(2) This Article does not
affect the operation of the Highways (Jersey)
Law 1956, the Public Utilities Road Works (Jersey) Law 1963 or the Island Planning (Jersey) Law 1964, or relieve a person of the duty to
comply with those Laws.
ARTICLE 27
Removal of apparatus to allow
building
(1) Where the Board has,
before this Article comes into force, installed any apparatus below, on or
above any land or any road adjoining or near any land, and any person having an
interest in that land intends to build upon or enclose it, or in any manner to
improve or alter it or to use it in some manner in which it was not used when
the apparatus was installed and with which the apparatus would interfere, then
that person may by notice advise the company of the nature of the intended
building, enclosure, improvement, alteration or other use of the land and
require the company to remove or alter the apparatus so as to avoid that
interference.
(2) The company, if
satisfied as referred to in paragraph (1) that the apparatus would cause
interference, shall, within three months after receiving the notice, take the
action necessary to comply with the requirement.
(3) Nothing in this Article
shall empower any person to obtain the removal or alteration of any apparatus
contrary to the terms of any grant or consent in writing made or given by him,
or by any person through whom he takes his estate or interest.
ARTICLE 28
Trimming trees
Where
the branches of any tree overhang and obstruct or interfere with the
satisfactory operation of any apparatus installed in pursuance of and in
accordance with the Telecommunications (Jersey) Law 1972 and connected to a public
telecommunication system operated by the company, the company may, so far as
possible without injuring the growth of the tree, lop the branches so as to
prevent the obstruction or interference.
ARTICLE 29
Power of entry in relation to
existing installations
(1) Where, in order to perform
its functions under Article 27(2) or 28, or to carry out any work on
apparatus installed in pursuance of and in accordance with the
Telecommunications (Jersey) Law 1972,8 it is necessary for the company to
enter any land, an employee of the company may do so, but only if -
(a) in every case -
(i) he produces
written evidence of his appointment as such employee, if so required by a
person on the land; and
(ii) the entry takes place
at a reasonable time; and
(b) in the case of land
that is for the time being occupied - not less than seven days before the day
on which entry is made, the occupier has been notified of the intended entry
and the purpose for which entry will be made.
(2) An employee of the
company who enters land in accordance with this Article in order to perform a
function or work as referred to in paragraph (1) may be accompanied by
such persons and equipment as may be necessary for the performance of the
function or work and may leave the equipment on the land until the function has
been performed or the work has been completed.
ARTICLE 30
Committee may acquire land for
telecommunications
(1) If it appears to the
Committee that any land should be acquired on behalf of the public of Jersey
for the purposes of facilitating the provision of telecommunication services by
one or more licensees, and the Authority supports such an acquisition, it shall
be lawful for the States to acquire such land by compulsory purchase on behalf
of the public in accordance with the Compulsory Purchase of Land (Procedure)
(Jersey) Law 1961.
(2) For the purposes of
that Law, the Committee shall be the acquiring authority in relation to the
acquisition of any land.
(3) In assessing the amount
of compensation payable to any person in relation to such a compulsory
purchase, the Board of Arbitrators, in addition to acting in accordance with
the rules set out in Article 9 of that Law, shall, if satisfied that the value
of the land to be acquired has been or will be enhanced by reason of the
expenditure of public money, set off against the value used to assess the
compensation any increase in the value attributable to the expenditure.
(4) The power to acquire
land by compulsory purchase referred to in paragraph (1) shall include the
power to -
(a) acquire any interest in
land or a servitude or other right in, on or over land by the creation of a new
interest, servitude or right; and
(b) extinguish or modify
any interest in land or a servitude or other right in, on or over land.
(5) The States have, in
addition to the power under Article 17 of the Compulsory Purchase of Land
(Procedure) (Jersey) Law 1961 to sell any land so acquired, the
power to transfer any interest in such land for the purposes of facilitating
the provision of telecommunication services by licensees.
ARTICLE 31
Regulations about apparatus on land
(1) The States may make
Regulations -
(a) prohibiting, regulating
or facilitating the installation, removal, or maintenance, of apparatus below,
on or above any land;
(b) prohibiting, regulating
or facilitating the doing of work on apparatus below, on or above any land;
(c) prohibiting
interference with apparatus below, on or above any land; or
(d) for or with respect to
the resolution of disputes concerning the exercise of powers under this Part,
other than the powers under Article 30.
(2) A reference in this
Article to apparatus includes a reference to apparatus already installed below,
on or above land before this Article comes into force or before any Regulations
made under this Article come into force.
PART 7
THE COMPANY
ARTICLE 32
Nature of company
(1) The States may, in
Regulations made under Article 37 or 38, prescribe one or more companies to
which assets, rights and liabilities shall be transferred as referred to in
those Articles.
(2) The Regulations may
prescribe different companies in respect of different assets, rights or
liabilities, but they shall not prescribe any company unless it is, at the
transfer date (within the meaning of Part 8) for those assets, rights or
liabilities -
(a) a company limited by
shares, incorporated under the Companies (Jersey) Law 1991 and having each of its shares held
by the States or held by one or more nominees on behalf of the States; or
(b) a subsidiary of such a
company.
(3) The Finance and
Economics Committee may from time to time appoint such nominees, but cannot be
such a nominee.
(4) Such a nominee shall
hold and deal with securities in a principal company only on such terms and in
such manner as the States direct.
(5) The Finance and
Economics Committee may exercise the powers of the States in their capacity as
holder of securities in a principal company (or in any other capacity regarding
a principal company), but not the following powers (which may be exercised only
by the States) -
(a) the power to dispose of
the shares or share rights in a principal company, or create or dispose of
security interests over those shares or share rights or otherwise charge those
shares or share rights;
(b) the power to authorise
the issue of shares or share rights in a principal company to any person other
than the States;
(c) the power to vote on a
resolution to wind up a principal company;
(d) such other powers as
the States have prescribed by Regulations.
(6) In that exercise of
powers, the Finance and Economics Committee shall act in the interests of the
States as holder of securities in a principal company.
(7) Nothing in this Article
is to be taken to imply that any liability of the States because of their
interest in a principal company is greater than they have (or would have) by
virtue of being a holder of securities in that company.
(8) In this Article,
“share rights” means, in relation to any shares, rights to
subscribe for, or to acquire, the shares and any other rights in connection
with the shares.
ARTICLE 33
States’ holding in company
(1) Where
any assets, rights or liabilities of the Board (within the meaning of Part 8)
are transferred to the company under Part 8, the company -
(a) if a principal company
- shall issue to the States any securities of the company that the States by
Regulations require to be issued; or
(b) if a subsidiary - shall
issue to the principal company any securities of the subsidiary that the States
by Regulations require to be issued.
(2) Such of those
securities as are shares shall be of the nominal value prescribed by the States
by Regulations and shall be issued as fully paid up, partly paid up or not paid
up and treated for the purposes of the Companies (Jersey) Law 1991 as if any amount paid on them was
constituted by the payment to the issuing company of a corresponding value in
cash.
(3) The States may
prescribe classes of those securities and the terms and conditions to which
those securities are subject.
ARTICLE 34
Loans
(1) The
States may make loans to a principal company or any of its subsidiaries,
subject to any conditions as to repayment, security or otherwise, including the
use to which the loans may be put, as the States think fit.
(2) The States may
guarantee loans made to a principal company or any of its subsidiaries by any
person.
(3) The Finance and
Economics Committee may, out of the income of the States, make loans to a
principal company, subject to any conditions as to repayment, security or
otherwise, including the use to which the company may put the loans.
(4) The Finance and
Economics Committee may, against the income of the States, guarantee loans made
to a principal company by any person.
(5) The Finance and
Economics Committee shall not exercise the power under paragraph (3) or (4) in
respect of a principal company unless it has reasonable grounds to believe
that, at the moment immediately after that exercise, the sum of the following
totals would not exceed the sum of the gross revenues of the principal company
and its subsidiaries for the year in which that exercise occurs, as estimated
at that moment -
(a) the total amount
outstanding at that moment of loans made under this Law to that company and its
subsidiaries; and
(b) the total amount
outstanding at that moment of such loans to that company and its subsidiaries
as are guaranteed (but not made) under this Law.
PART 8
TRANSFER OF
TELECOMMUNICATION ASSETS, LIABILITIES AND STAFF
ARTICLE 35
Interpretation
(1) In this Part -
“assets”
means any interest in immovable property or movable property of any
description, and includes securities, choses in action and documents;
“employee
of the Board” is defined in paragraph (5);
“liabilities”
means any liabilities, debts or obligations (whether present or future and
whether vested or contingent);
“representative
body” includes a trade union and any other association of employees
formed for the purpose of representing those employees in their relationship
with their employers;
“rights”
means any rights, powers, privileges or immunities (whether present or future
and whether vested or contingent);
“transfer
date” means the day or days prescribed by Regulations under Article 36;
“transferee”
means the person or persons to whom any assets, rights or liabilities are
transferred under this Part;
“transferor”
means the person or persons from whom any assets, rights or liabilities are
transferred under this Part.
(2) For the purposes of
this Part, it makes no difference whether the assets, liabilities and rights to
which it refers are situated in Jersey or in the United Kingdom or in any other
country or in any territory, or arise or subsist under the Law of Jersey or of
the United Kingdom or of any other country or in any territory.
(3) For the purposes of
this Part, an asset or right of the Board includes an asset or right of the
public (or of the States), being an asset or right to the use or enjoyment of
which the Board is entitled.
(4) For the purposes of
this Part, a liability of the Board includes a liability to which the public
(or the States) is subject (but arising from a benefit or interest to the use
or enjoyment of which the Board is entitled).
(5) For the purposes of
this Part, “employee of the Board” means -
(a) a person employed by
the Board;
(b) a person employed by
the Human Resources Committee, but engaged in the performance of the functions
of the Board; or
(c) such other person, or
person belonging to such class, as the States may prescribe by Regulations.
(6) For the purposes of
this Part -
(a) an asset of the Board
does not include an asset to the extent that it is used or enjoyed in the
performance of the functions of the Board under Article 5 of the
Telecommunications (Jersey) Law 1972;
(b) a right or liability of
the Board does not include a right or liability of the Board that has arisen in
the performance of the functions of the Board under Article 5 of the
Telecommunications (Jersey) Law 1972;14 and
(c) an employee of the
Board does not include an employee who is engaged in the performance of the
functions of the Board under Article 5 of the Telecommunications (Jersey) Law 1972.14
(7) For the purposes of
this Part, to the extent that a contract, or other instrument, that creates or
passes an asset, right or liability of the Board specifies that it is incapable
of transfer or assignment, the instrument is of no effect.
ARTICLE 36
Transfer date
(1) The States may by
Regulations prescribe one or more transfer dates for the purposes of the
provisions of this Law.
(2) A date prescribed under
this Article shall not be a day earlier than the day on which the Regulations
prescribing the day come into force.
ARTICLE 37
Transfer of movables
(1) This Article does not
apply to interests in immovable property.
(2) On the transfer date,
the assets, rights and liabilities of the Board shall be transferred to the
company in accordance with Regulations made by the States.
(3) Such a transfer may be
made on such terms and conditions as are prescribed by the Regulations and may
(as prescribed in the Regulations) consist of the transfer of a liability, or
transfer of an interest in an asset or right, that is less than the entire
liability, or entire interest in the asset or right, of the Board (or of the
public or the States).
(4) The States may, by
Regulations, prescribe any asset, right or liability not subject to transfer,
and an asset, right or liability that is so prescribed is not transferred under
this Article, but this does not prevent its transfer otherwise than under this
Article.
(5) If it appears to the
States expedient so to do for the purpose of removing any difficulties or
uncertainties arising out of the operation of this Article, they may by Regulations
direct that such assets, rights, or liabilities, of the Board as may be
specified in the Regulations -
(a) are not transferred
under this Article or shall be taken not to have been so transferred; or
(b) are transferred under
this Article or shall be taken to have been so transferred.
(6) Regulations made under
paragraph (5) shall have effect on a date or on dates specified in the
Regulations, but not before the earliest transfer date prescribed for the
purposes of this Article nor more than 12 months after that date.
(7) The States cannot make
Regulations under paragraph (5) more than 12 months after that transfer
date.
ARTICLE 38
Transfer of immovables
(1) On the transfer date,
such assets of the Board as are interests in immovable property and are
prescribed by Regulations made by the States shall be transferred to the
company.
(2) Such a transfer may be
made on such terms and conditions as are prescribed in the Regulations and may
(as prescribed in the Regulations) consist of the transfer of an interest in
property that is less than the entire interest of the Board (or of the public
or the States) in the property.
ARTICLE 39
Asset and liability adjustment
(1) The
States may, for the purposes of ensuring that the financial position of the
company (and of the public, or the States, with respect to the company) is
optimized at the time when Regulations are made under this Article, by
Regulations -
(a) cause to be transferred
to the company specified assets, rights or liabilities of the public (or of the
States) other than assets, rights, or liabilities, of the Board;
(b) cause to be transferred
from the company to the public (or the States) specified assets, rights, or
liabilities, of the company;
(c) create, and cause to be
transferred to the company, an asset, right, or liability, of the public (or of
the States); or
(d) create, and cause to be
transferred to the public (or the States), an asset, right, or liability, of
the company.
(2) A reference in
paragraph (1) to a liability includes any liability that relates to all three
of the following matters -
(a) the employment of a
person by the States (or by a public authority) at any time before the person
becomes an employee of the company by virtue of this Part;
(b) his membership of a
scheme under the Public Employees (Retirement) (Jersey)
Law 1967; and
(c) the capital value of
any debt relating to the accrual of benefits to him under that scheme because
of that employment.
(3) Regulations made under
paragraph (1) shall have effect on a date or on dates specified in the
Regulations, but not before the earliest transfer date prescribed for the
purposes of Article 37 nor more than 12 months after that transfer
date.
(4) The States cannot make
such Regulations more than 12 months after that transfer date.
ARTICLE 40
Vesting in transferee
(1) When any assets, rights
or liabilities are transferred under this Part (including under Regulations
made under Article 39), the following provisions have effect -
(a) except to the extent
provided in Article 41(3), the assets of the transferor vest in the transferee
by virtue of this Article and without the need for any further conveyance,
transfer, assignment or assurance;
(b) the rights or
liabilities of the transferor become by virtue of this Article the rights or
liabilities of the transferee;
(c) all proceedings
relating to the assets, rights or liabilities commenced before the transfer by
or against the transferor or a predecessor of the transferor and pending immediately
before the transfer are taken to be proceedings pending by or against the
transferee;
(d) any act, matter or
thing done or omitted to be done in relation to the assets, rights or
liabilities before the transfer by, to or in respect of the transferor or a
predecessor of the transferor is (to the extent to which that act, matter or
thing has any force or effect) taken to have been done or omitted by, to or in
respect of the transferee;
(e) a reference in any
enactment, in any instrument made under any enactment or in any document of any
kind to the transferor or a predecessor of the transferor is (to the extent to
which it relates to those assets, rights or liabilities) taken to include a
reference to the transferee.
(2) The operation of this
Article or of Article 37, 38, 39 or 41 (or of any Regulations made under any of
those Articles) is not to be regarded -
(a) as a breach of contract
or confidence or otherwise as a civil wrong;
(b) as a breach of any
contractual provision prohibiting, restricting or regulating the assignment or
transfer of assets, rights or liabilities; or
(c) as giving rise to any
remedy by a party to an instrument, or as causing or permitting the termination
of any instrument, obligation or relationship, because of a change in the
beneficial or legal ownership of any asset, right or liability.
(3) The operation of this
Article or of Article 37, 38, 39 or 41 (or of any Regulations made under any of
those Articles) is not to be regarded as an event of default under any contract
or other instrument.
(4) No attornment to the
transferee by a lessee from the transferor is required.
(5) A transfer is subject
to any terms and conditions that the States prescribe by Regulations.
(6) No compensation is
payable to any person or body in connection with a transfer to which Article
37, 38 or 39 applies except to the extent (if any) to which the Regulations
made under that Article so provide.
ARTICLE 41
Evidence, registration and treatment of
transfer
(1) The production of a copy
of any Regulations made under Article 37 (or Regulations relating to movable
property made under Article 39) and signed by the Greffier of the States shall,
for all purposes, be conclusive evidence of the transfer to and vesting in, the
transferee of any assets, rights or liabilities to which those Regulations
apply.
(2) Nothing in paragraph
(1) affects the value of any other evidence of a transfer that may be adduced.
(3) Regulations made under
Article 38 or 39 that specify any interest in immovable property situated in
Jersey and are signed by the Greffier of the States shall be registered in the
Public Registry of Contracts and that registration shall have the like effect
as a contract passed before the Royal Court and the title to any interest in
such immovable property specified in those Regulations shall vest in, belong to
and be held by the transferee on and after the day of that registration.
(4) The States may, by
Regulations, make provision for the purposes of Article 21 of the Public
Finances (Administration) (Jersey) Law 1967, and for other purposes, with
respect to the values to be assigned to the assets, rights and liabilities of
the Board, and the treatment of any transfer of them under this Part, in
accounts.
(5) The States may, by
Regulations, make provision for the purposes of the values to be assigned to
the assets, rights and liabilities of the Board, and the treatment of any
transfer of them under this Part, as far as they are relevant to -
(a) the determination of premiums
for the purposes of Article 39 of the Companies (Jersey)
Law 1991;
(b) distributions for the
purposes of Article 114 of that Law; or
(c) any other matter under
that Law.
(6) The States may, by
Regulations, make provision for or with respect to any matter that is
consequential, incidental or ancillary to the matters referred to in paragraphs
(4) and (5).
(7) Regulations may make
different provision under paragraphs (4), (5) and (6) for different purposes,
even in respect of the same assets, rights or liabilities or the same transfer.
ARTICLE 42
Stamp duty
Stamp
duty is not chargeable for or in respect of -
(a) a transfer that is
effected under this Part or, if otherwise effected, that is prescribed for the
purposes of this Article by Regulations made by the States; or
(b) anything prescribed by
Regulations made by the States as something done in consequence of such a
transfer.
ARTICLE 43
Transfer of staff
(1) If, immediately before
the transfer date, a person is an employee of the Board, on the transfer date
he shall be transferred to the company and on and from that date -
(a) he shall be an employee
of the company;
(b) his contract of
employment shall have effect as if it had originally been made between him and
the company at the date when it was actually made;
(c) all rights, powers,
duties and liabilities under or in connection with the contract shall be
enforceable or exercisable as if the contract had been originally made between
the employee and the company;
(d) any collective
agreement made by the Board (or otherwise on behalf of the States) with a
representative body recognized by the Board (or recognized otherwise on behalf
of the States), being an agreement that still has effect in respect of the
employee immediately before the transfer, shall continue to have effect in
respect of the employee as if it had been originally made by or on behalf of
the company with that representative body; and
(e) anything done before
the transfer date by or in relation to the Board (or otherwise on behalf of the
States) under or in respect of the contract or the agreement or in respect of
the employee shall be taken to have been done by or in relation to the company
at the time when it was actually done.
(2) However if, immediately
before the transfer date, a person is an employee of the Board, and at any time
before the transfer date, he has served notice in writing on the Board that he
refuses to be employed by the company, then, on the transfer date, unless he
has revoked that notice -
(a) he shall not become an
employee of the company; and
(b) he shall be taken to
have served notice of resignation from his employment as an employee of the
Board on the preceding day, and, on the expiry of the period of notice that applied
to that employment on that day, his employment shall terminate.
ARTICLE 44
Collective agreements about new
staff
Any
collective agreement made by the Board (or otherwise on behalf of the States)
with a representative body recognized by the Board (or otherwise on behalf of
the States), being an agreement that is expressed to have effect in respect of
the employment of persons by the company who were not immediately before the
transfer date employees of the Board shall have effect from the transfer date
as if it had been originally made by or on behalf of the company with that
representative body.
ARTICLE 45
Saving of rights under retirement
schemes
If
a person was, immediately before becoming an employee of the company by virtue
of this Part, a member of any scheme made under the Public Employees
(Retirement) (Jersey) Law 1967 or any other retirement scheme,
then, on so becoming such an employee -
(a) except to the extent
provided in sub-paragraph (b), the terms of his membership of the scheme, and
the rights and liabilities under that scheme, are unaffected by his becoming
such an employee; and
(b) notwithstanding
anything in that Law or any other enactment or in any other document or under
any arrangement, the company shall, by the operation of this Article, become
his employer for the purposes of that scheme.
ARTICLE 46
New employees to join retirement
scheme
(1) A principal company
shall not employ any person who does not participate in a scheme under the
Public Employees (Retirement) (Jersey) Law
1967.19
(2) A subsidiary of a
principal company shall not employ any person who does not participate in a
scheme under the Public Employees (Retirement) (Jersey)
Law 1967.19
(3) However, a company is
not required to comply with paragraph (1) or (2) if at least 90 per cent of the
total number of eligible persons from time to time in the employment of all
principal companies and their subsidiaries participate in one or other scheme
under the Public Employees (Retirement) (Jersey) Law 1967.
(4) For the purposes of
paragraph (3), the actual percentage shall be determined by -
(a) finding the sum of the
total numbers of persons who are in the employment of the principal companies
and their subsidiaries and, because of that employment, participate in one or
other scheme under the Public Employees (Retirement) (Jersey) Law 1967;20
(b) dividing that sum by
the sum of the total numbers of persons who are in such employment and, because
of that employment, are eligible so to participate; and
(c) multiplying the
quotient by 100.
(5) The States may, by
Regulations -
(a) replace the percentage
prescribed by paragraph (3) with any percentage (including 0 or 100); or
(b) amend any reference to
subsidiaries in this Article so that the reference is only to subsidiaries
prescribed by the Regulations or subsidiaries of a class so prescribed, or to
no subsidiaries.
(6) The requirements of
this Article are in addition to any requirement (under any enactment) relating
to the participation of employees in, or withdrawal of employees from, any
scheme under the Public Employees (Retirement) (Jersey)
Law 1967.20
PART 9
OFFENCES
ARTICLE 47
Damage to public telecommunication system
(1) Any person who -
(a) removes, damages or
interferes with apparatus that is installed in a public telecommunication
system;
(b) places in, against or
near apparatus so installed any fire, or explosive (or other substance) likely
to damage or interfere with it; or
(c) does any act likely to
damage or interfere with apparatus so installed,
shall be guilty of an offence and liable to
imprisonment for a term not exceeding six months or to a fine not exceeding
level 3 on the standard scale, or both.
(2) Nothing in this Article
affects any right of a public telecommunications operator to recover
compensation for any damage, interference or consequential loss.
ARTICLE 48
Obstruction of public
telecommunications staff
(1) Any person who
obstructs an employee of a public telecommunications operator, being an employee
engaged in installing, maintaining, removing or running a public
telecommunication system, shall be guilty of an offence and liable to
imprisonment for a term not exceeding six months or to a fine not exceeding
level 4 on the standard scale, or both.
(2) Any person who refuses
to leave any premises that are part of or on which is located a public
telecommunication system when required to do so by an employee of the public
telecommunications operator who runs the system, or a person acting on the
operator’s behalf, shall be guilty of an offence and liable to
imprisonment for a term not exceeding three months or to a fine not exceeding
level 2 on the standard scale,22 or both.
(3) An employee of a public
telecommunications operator, or a person acting on the operator’s behalf,
may remove from those premises a person who refuses to leave (as referred to in
paragraph (2)), and a police officer shall, on demand by such an employee or
person acting on the operator’s behalf, remove or assist in removing the
person who refuses to leave, and reasonable force may be exercised to effect
that removal.
(4) In this Article
“police officer” means a member of the States of Jersey Police or
of the Honorary Police.
ARTICLE 49
Fraudulent use of telecommunication system
Any
person who dishonestly obtains a telecommunication service provided by means of
a telecommunication system with intent to avoid payment for that service shall
be guilty of an offence and liable to imprisonment for a term not exceeding two
years or to a fine, or both.
ARTICLE 50
Device for fraudulent purpose
(1) Any person who has in
his custody or under his control anything that may be used to obtain, or for a
purpose connected with the obtaining of, a telecommunication service provided
by means of a telecommunication system, and has it in his custody or under his
control with intent to use it or allow it to be used -
(a) to obtain the service
dishonestly; or
(b) for a purpose connected
with the dishonest obtaining of the service,
shall be guilty of an offence and liable to
imprisonment for a term not exceeding two years or to a fine, or both.
(2) Any person who supplies
or offers to supply anything that may be used to obtain, or for a purpose
connected with the obtaining of, a telecommunication service provided by means
of a telecommunication system knowing or believing that the person to whom it
is supplied or offered intends to use it or allow it to be used -
(a) to obtain the service
dishonestly; or
(b) for a purpose connected
with the dishonest obtaining of the service,
shall be guilty of an offence and liable to
imprisonment for a term not exceeding two years or to a fine, or both.
(3) Where anything referred
to in paragraph (1) or (2) may be used to record data, a reference in that
paragraph to the use of the thing includes the use of data recorded by the
thing.
ARTICLE 51
Improper use of public
telecommunication system
Any
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) for the purpose of
causing annoyance, inconvenience or needless anxiety to another, sends by those
means 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 to
imprisonment for a term not exceeding six months or to a fine not exceeding
level 4 on the standard scale, or both.
ARTICLE 52
Interference with public
telecommunication messages
(1) Any person engaged in
the running of a public telecommunication system, who otherwise than in the
course of his duty intentionally -
(a) discloses to any person
the contents of any message conveyed by means of the system (where the latter
person is not the intended recipient of the message);
(b) discloses any
information concerning the use made of a telecommunication service provided by
means of that system to any person other than the person who actually made that
use; or
(c) modifies, or interferes
with the contents of, a message conveyed by means of the system,
shall be guilty of an offence and liable to
imprisonment for a term not exceeding twelve months or to a fine not exceeding
level 4 on the standard scale,23 or both.
(2) Paragraph (1) does not
apply to any disclosure made for the prevention or detection of crime or for
the purposes of any criminal proceedings, or to any disclosure made in taking
steps, or notifying a police officer, under Article 19(1)(b) of the Electronic
Communications (Jersey) Law 2000.
(3) Paragraph (1)(a) does
not apply to any disclosure made in obedience to a warrant issued by the
Attorney General under Article 3 of the Interception of Communications (Jersey)
Law 1993 or in pursuance of a requirement
imposed by the commissioner under Article 9(3) of that Law.
(4) Paragraph (1)(b) does
not apply to any disclosure made in the interests of the security of Jersey or in pursuance of the order of a court.
(5) For the purposes of
paragraph (4), a certificate signed by the Attorney General certifying that a
disclosure was made in the interests of the security of Jersey shall be
conclusive evidence of that fact, and a document purporting to be such a
certificate shall be received in evidence and taken to be such a certificate
unless the contrary is proved.
ARTICLE 53
Defacing public telecommunication
system
Any
person who without lawful authority affixes any placard, advertisement, notice,
list, document, board or other thing in or on, or paints or tars, any telephone
kiosk, telegraph post or any other property belonging to or used by or on
behalf of a public telecommunications operator for the purposes of providing a
telecommunication service or in any way disfigures any such kiosk, post or
other property shall be guilty of an offence and liable to imprisonment for a
term not exceeding six months or to a fine not exceeding level 3 on the
standard scale, or both.
ARTICLE 54
False information
(1) Any person who
knowingly or recklessly provides the Authority, or any other person entitled to
information under this Law, or under Regulations or an Order made under this
Law, with information that is false or misleading in a material particular
shall be guilty of an offence if the information is provided -
(a) in purported compliance
with a requirement imposed under this Law or under Regulations or an Order made
under this Law; or
(b) otherwise than as
mentioned in sub-paragraph (a) but in circumstances in which the person
providing the information intends, or could reasonably be expected to know,
that the information would be used by the Authority for the purpose of carrying
out its functions under this Law.
(2) Any person who
knowingly or recklessly provides the Authority, or any other person entitled to
information under this Law, with information that is false or misleading in a
material particular shall be guilty of an offence if the information is
provided in connection with an application under this Law.
(3) A person who is guilty
of an offence against this Article shall be liable to imprisonment for a term
not exceeding five years or a fine, or both.
ARTICLE 55
General provisions as to offences
(1) Where an offence under
this Law, or under Regulations or an Order made under this Law, committed by a
limited liability partnership or body corporate is proved to have been
committed with the consent or connivance of, or to be attributable to any
neglect on the part of -
(a) a person who is a partner
of the partnership, or director, manager, secretary or other similar officer of
the body corporate; or
(b) any person purporting
to act in any such capacity,
the person shall also be guilty of the offence
and liable in the same manner as the partnership or body corporate to the
penalty provided for that offence.
(2) Where the affairs of a
body corporate are managed by its members, paragraph (1) shall apply in
relation to acts and defaults of a member in connection with his functions of
management as if he were a director of the body corporate.
(3) Any person who aids,
abets, counsels or procures the commission of an offence under this Law shall
also be guilty of the offence and liable in the same manner as a principal
offender to the penalty provided for that offence.
(4) An offence may be
committed under this Law whether or not the act or omission that constitutes
the offence, or is an ingredient of the offence, causes any interruption to, or
prevention of, the provision of a telecommunication service by means of a
telecommunication system.
PART 10
MISCELLANEOUS
ARTICLE 56
Orders in interests of security etc.
(1) The Policy and
Resources Committee may make Orders with respect to the functions of the
Authority if that Committee considers it necessary or expedient to do so -
(a) in the interests of the
security of Jersey or in the interests of
encouraging or maintaining Jersey’s
relations with a country or territory; or
(b) in order -
(i) to discharge, or
facilitate the discharge of, an international obligation;
(ii) to attain, or
facilitate the attainment of, any other object that the Policy and Resources
Committee considers it necessary or expedient to attain in view of
Jersey’s being a member of an international organization or a party to an
international agreement; or
(iii) to enable Jersey
to become a member of such an organization or a party to such an agreement.
(2) An Order under this
Article may, in particular, require the Authority -
(a) to do or not to do a
particular thing;
(b) to ensure that a
particular thing is done or not done; or
(c) to recognize persons or
classes of persons (as public telecommunications operators or otherwise) for
any purpose in connection with an international obligation, international organization
or international agreement.
(3) The Policy and
Resources Committee shall consult the Authority and the Industries Committee
before making an Order under this Article.
(4) To the extent of any
inconsistency between the functions of the Authority under the other provisions
of this Law and any requirement of an Order under this Article, the functions
are modified so that the Authority shall perform them consistently with the
requirement.
ARTICLE 57
Modifications of Law in interests of security
etc.
The
States may, by Regulations, modify the provisions of this Law if the States
consider it necessary or expedient to do so -
(a) in the interests of the
security of Jersey or in the interests of
encouraging or maintaining Jersey’s
relations with a country or territory; or
(b) in order -
(i) to discharge, or
facilitate the discharge of, an international obligation;
(ii) to attain, or
facilitate the attainment of, any other object that the States consider it
necessary or expedient to attain in view of Jersey’s being a member of an
international organization or a party to an international agreement; or
(iii) to enable Jersey
to become a member of such an organization or a party to such an agreement.
ARTICLE 58
Publication, advice and assistance
(1) The Authority may
publish such information and advice as it considers expedient to -
(a) providers of
telecommunication services; or
(b) users of
telecommunication services.
(2) The Authority may also
prepare any report that it considers appropriate with respect to any matter
relevant to the functions of the Authority.
(3) If the Authority
considers it expedient to do so or is asked by the Committee to do so, it shall
provide information, advice and help to the Committee regarding any matter
concerning telecommunications.
(4) Publication under this
Article (including the provision of something under paragraph (3)) may be in
such form and manner as the Authority considers appropriate.
ARTICLE 59
Annual report of Authority
(1) The Authority
shall, in addition to the report that it is required to prepare under the
Competition Regulatory Authority (Jersey) Law
2001 or as part of that report, prepare a report in respect
of each of its financial years -
(a) generally surveying developments
that are relevant to its functions under this Law;
(b) reviewing competition
in, and restrictions on, the supply of telecommunication services in Jersey; and
(c) dealing with such other
matters as the Committee requires.
(2) The Authority shall
provide the Committee with a report prepared under this Article as soon as
practicable after the end of the financial year to which the report relates,
but in no case later than four months after the end of that year.
(3) The Committee shall lay
a copy of the report so provided before the States as soon as practicable after
the Committee receives the report.
(4) In this Article,
“financial year” has the same meaning as in the Competition
Regulatory Authority (Jersey) Law 2001.
ARTICLE 60
Exclusion of personal material in
publications and annual reports
(1) So far as practicable
the Authority shall ensure the exclusion from anything published under Article
58 (including anything published by being provided under Article 58(3)),
and any report prepared under Article 59, of any matter relating
to the affairs of a person if the Authority considers that its publication
would or might seriously and prejudicially affect the person’s interests.
(2) Paragraph (1) does not
apply if -
(a) the person concerned
consents to publication of the matter; or
(b) the Authority considers
that the public interest in the publication of the matter (whether or not the
publication is to a significant portion of the public) would outweigh the
effect of the publication on the interests of the person concerned.
ARTICLE 61
Limit on disclosure in general
(1) A person shall not
disclose any information with respect to a person or business during the
lifetime of that person or so long as that business continues, without the
consent of that person or the person for the time being carrying on that
business, if the information -
(a) has been obtained under
the provisions of this Law; and
(b) relates to the private
affairs of the person or to the business.
(2) Any person who
discloses information in contravention of this Article shall be guilty of an
offence and liable to imprisonment for a term not exceeding two years or to a
fine, or both.
(3) Paragraph (1) shall not
apply to the disclosure of information -
(a) for the purpose of
facilitating the performance by the Industries Committee or the Policy and
Resources Committee of its functions under this Law;
(b) for the purpose of
facilitating the performance by the Authority of its functions under this or any
other Law;
(c) to enable the holder of
a licence to run a public telecommunication system to comply with the licence;
(d) in connection with the
investigation of any criminal offence or for the purposes of criminal
proceedings, or generally in the interests of the prevention or detection of
crime, whether in Jersey or elsewhere;
(e) in connection with the
discharge of an international obligation of Jersey;
(f) to assist any
authority that appears to the Authority to exercise, outside Jersey,
functions corresponding to some or all of those of the Authority;
(g) for the purposes of
civil proceedings arising under this Law;
(h) to comply with a
direction of the Court;
(i) for the purpose
of enabling or assisting the Jersey Financial Services Commission or the
Finance and Economics Committee to exercise any powers relating to companies or
financial services of any kind, being powers conferred by any enactment;
(j) for the purpose
of enabling or assisting an inspector appointed under the Companies (Jersey) Law 1991 to carry out his functions;
(k) for the purpose of
enabling or assisting the Viscount to carry out his functions under the
Bankruptcy (Désastre) (Jersey) Law
1990;
(l) for the purpose
of facilitating the carrying out by any person of his functions under the
Health and Safety at Work (Jersey) Law 1989; or
(m) for such other purposes as
the States may by Regulations prescribe.
(4) The States may, by
Regulations, modify paragraph (3)(a) - (l).
ARTICLE 62
Entry and search of premises
(1) If, on application made
by a police officer supported by information on oath, the Bailiff, a Jurat or a
magistrate is satisfied that there are reasonable grounds for believing that an
offence under Article 3 has been, or is being, committed and that there is
evidence of the commission of the offence to be found on premises specified in
the application he may issue a warrant authorizing a police officer to enter
and search the premises within one month of the date of the issue of the
warrant.
(2) The warrant may, but
need not, authorise the officer to use such force as is reasonably necessary to
make that entry.
(3) A police officer who
enters premises by authority under this Article -
(a) may, if so authorised
by a warrant under this Article, use such force as is reasonably necessary to
make that entry;
(b) may take with him such
other persons as may be necessary;
(c) shall, if any person on
the premises so requires, show proof of his authority as such an officer and
show the warrant authorising the entry; and
(d) on leaving any
unoccupied premises so entered, shall leave them as effectively secured against
trespassers as he found them.
(4) Any person who
obstructs a police officer in the execution of a warrant issued under this Article
commits an offence and is liable to a term of imprisonment not exceeding six
months or a fine, or both.
ARTICLE 63
Limitation of civil liability
(1) A person or body to
whom this Article applies shall not be liable in damages for anything done or
omitted in the discharge or purported discharge of any functions under this Law
or under Regulations or an Order made under this Law unless it is shown that
the act or omission was in bad faith.
(2) This Article applies
to -
(a) the States;
(b) the Industries
Committee;
(c) the Policy and
Resources Committee; and
(d) any member of either of
those Committees, or any person who is, or is acting as, an officer, employee
or agent of either of those Committees or performing any duty or exercising any
power on behalf of either of those Committees.
(3) A person is not
entitled to claim or to receive any compensation in respect of any change in
the value of any licence or approval, or of any right arising under this Law,
being a change resulting from the modification of a licence condition, the
revocation of a licence or of an approval or otherwise resulting directly or
indirectly from the exercise of a function under Part 5.
(4) Paragraph (3) is
included for the avoidance of doubt and does not limit the operation of
paragraph (1).
ARTICLE 64
Service of notices etc.
(1) A notice required by
this Law to be given to the Authority shall not be regarded as so given until
it is in fact received by the Authority.
(2) A notice or other
document required or authorized under this Law or under Regulations or an Order
made under this Law to be given to the Authority may be given by facsimile,
other electronic transmission, or by any other means by which the Authority may
obtain or recreate the notice or document in a form legible to the naked eye.
(3) Any notice, direction
or other document required or authorized by or under this Law or under
Regulations or an Order made under this Law to be given to or served on any
person other than the Authority may be given or served on the person in
question -
(a) by delivering it to
him;
(b) by leaving it at his
proper address;
(c) by sending it by post
to him at that address; or
(d) by sending it to him at
that address by facsimile, other electronic transmission, or by any other means
by which he may obtain or recreate the notice, direction or document in a form
legible to the naked eye.
(4) Any such notice,
direction or other document may -
(a) be given to or served
on a company incorporated in Jersey by being
delivered to the company’s registered office; or
(b) be given to or served
on a partnership, company incorporated outside Jersey,
or unincorporated association -
(i) by being given to
or served (in any case) on a person who is a principal person in relation to
it, or on its secretary, clerk or other similar officer or any person who
purports to act in any such capacity, by whatever name called, or (in the case
of a partnership) on the person having the control or management of the
partnership business; or
(ii) by being delivered to
the registered or administrative office of any such person.
(5) For the purposes of
this Article and of Article 12 of the Interpretation (Jersey) Law 1954, the proper address of any person to
or on whom a document is to be given or served by post shall be the
person’s last known address, except that -
(a) in the case of a
company (or person referred to in paragraph (4)(b)(i) in relation to a
company incorporated outside Jersey) - it
shall be the address of the registered or principal office of the company in Jersey; and
(b) in the case of a
partnership (or person referred to in paragraph (4)(b)(i), or who is a
principal person, in relation to a partnership) - it shall be the address
of the principal office of the partnership in Jersey.
(6) If the person to or on
whom any notice, direction or other document referred to in paragraph (3) is to
be given or served has notified the Authority of an address within Jersey,
other than his proper address within the meaning of paragraph (5), as the one
at which he or someone on his behalf will accept documents of the same
description as that document, that address shall also be treated for the
purposes of this Article and Article 12 of the Interpretation (Jersey) Law 1954 as his proper address.
(7) If the name or the
address of any owner, lessee or occupier of premises on whom any notice,
direction or other document referred to in paragraph (3) is to be served cannot
after reasonable enquiry be ascertained it may be served by -
(a) addressing it to the
person on whom it is to be served by the description of “owner”,
“lessee” or “occupier” of the premises;
(b) specifying the premises
on it; and
(c) delivering it to some
responsible person resident or appearing to be resident on the premises or, if
there is no person to whom it can be delivered, by affixing it, or a copy of
it, to some conspicuous part of the premises.
ARTICLE 65
Regulations and Orders
(1) The Committee may by
Order make provision for the purpose of carrying this Law into effect and, in
particular, but without prejudice to the generality of the foregoing, for or
with respect to any matter that may be prescribed under this Law by Order of
that Committee.
(2) The States may by
Regulations make provision for the purpose of carrying this Law into effect
and, in particular, but without prejudice to the generality of the foregoing,
for or with respect to any matter that may be prescribed under this Law by
Regulations.
(3) An Order or Regulations
made under this Law may -
(a) make different
provision in relation to different cases or circumstances;
(b) apply in respect of
particular persons or particular cases or particular classes of persons or
particular classes of cases, and define a class by reference to any
circumstances whatsoever; or
(c) contain such
transitional, consequential, incidental or supplementary provisions as appear
to the Committee or the States, as the case may be, to be necessary or
expedient for the purposes of the Order or Regulations.
(4) Regulations made under
this Law may create an offence punishable by a fine not exceeding level 4 on
the standard scale.
(5) The Subordinate
Legislation (Jersey) Law 1960 shall apply to an Order made under
this Law.
ARTICLE 66
Amendments and repeals
(1) The enactments in
Schedule 1 shall have effect subject to the amendments and repeals specified in
that Schedule in relation to each enactment.
(2) The provisions of the
Loi (1904) au sujet des télégraphes du Gouvernement Britannique, the Loi (1918) au sujet des
télégraphes du Gouvernement Britannique and the Telecommunications (Jersey)
Law 1972 shall be repealed on such day as
the States may by Act appoint and different days may be appointed for different
purposes or different provisions of those Laws.
ARTICLE 67
Savings and transitional and consequential
provisions
Schedule
2 shall have effect.
ARTICLE 68
Citation and commencement
This
Law may be cited as the Telecommunications (Jersey)
Law 2002 and shall come into force on such day as the States may by Act
appoint and different days may be appointed for different purposes or different
provisions (including different provisions of the Schedules) of this Law.
C.M.
NEWCOMBE
Greffier of the States.
SCHEDULE 1
AMENDMENTS
AND REPEALS
(Article
66)
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Enactment
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Amendment
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Electricity (Jersey) Law 1937
|
In Article 10 for the words “the telegraphic system owned by the States of
Jersey” there shall be substituted the words “any
telecommunication system run under a licence under the
Telecommunications (Jersey) Law
2002”.
|
|
Public Utilities Road Works (Jersey)
Law 1963
|
In Article 1(1) for the definition of “telegraphic line” there shall be
substituted the following definition -
“‘telegraphic
line’ has the same meaning as ‘apparatus’ in the
Telecommunications (Jersey) Law 200241;”.
|
|
Island Planning (Jersey) Law 1964
|
In Article 1(1) in the definition of “statutory undertakers” after the
word “water” there shall be inserted the words “or a person
running a public telecommunication system under a licence under the
Telecommunications (Jersey) Law 200241”.
|
|
Extinguishment of Roads (Jersey)
Law 1972
|
1. In Article 1(1) before the definition of “applicant authority” there
shall be inserted the following definition -
“‘apparatus’
includes apparatus within the meaning of the Telecommunications (Jersey) Law 2002;”.
2. In Article 1(1) in the definition of “statutory undertakers” for the
words “and the Telecommunications Board” there shall be
substituted the words “or a person running a public telecommunication
system under a licence under the Telecommunications (Jersey)
Law 200245”.
|
|
Emergency Powers and Planning (Jersey)
Law 1990
|
1. After Article 5 there shall be inserted the following Article -
“ARTICLE 5A
Powers of competent authority in relation to telecommunications
(1) A competent authority may by Order
provide for securing, regulating or prohibiting any one or more of the
following -
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|
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(a) telecommunication services,
telecommunication systems and apparatus;
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|
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(b) the use of those services, systems and
apparatus.
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|
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(2) A competent authority may by Order
provide for regulating the price at which those services, systems and
apparatus may be supplied.
|
|
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(3) Any provision made by Order under this
Article may be made in relation to telecommunication services,
telecommunication systems and apparatus generally or in relation to any
particular description of those services, systems and apparatus and, in
either case, may be made with respect to the supply, distribution,
acquisition or use of those things or of a description of those things, for
all purposes, or for any particular purpose stated in the Order.
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(4) An Order under this Article may empower
a competent authority to give directions to -
|
|
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(a) any persons carrying on business as a
provider of telecommunication services, telecommunication systems or apparatus,
as to the provision of those things;
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(b) any person carrying on business
involving the use of those things, as to the person’s use of those
things for the purposes of that business.
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(5) A competent authority may by Order make
provision for suspending, modifying or excluding any contractual obligation,
or any obligation or restriction imposed by or under any enactment, that
directly or indirectly affects the provision or use of telecommunication
services, telecommunication systems or apparatus, or for extending any power
conferred by such an enactment.
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(6) A competent authority shall not make an
Order under this Article except after consultation with the Jersey
Competition Regulatory Authority established under the Competition Regulatory
Authority (Jersey) Law 2001.
|
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(7) In this Article,
‘apparatus’, ‘telecommunication service’ and
‘telecommunication system’ have the same meanings as in the
Telecommunications
(Jersey) Law
2002.”.
|
|
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2. In Article 9 for the words “Article 5, 6, 7 or 8 of this Law” there
shall be substituted the words “Article 5, 5A, 6, 7 or 8 of this
Law”.
|
|
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3. In Article 10(4) after the words “food, water, fuel, light” there shall be
inserted the words
“, telecommunication services”.
|
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Video Recordings (Jersey) Law 1990
|
In Article 3(8) for the words “system licensed under Article 5 of the
Telecommunications (Jersey) Law 1972” there shall be substituted the words “telecommunication
system run under a licence under the Telecommunications (Jersey) Law
2002”.
|
|
Interception of Communications (Jersey)
Law 1993
|
1. For the words “the public
telecommunication system” wherever occurring (except in the definition
of those words in Article 1(1)) there shall be substituted the words “a
public telecommunication system”.
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|
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2. In Article 1(1) for the definitions of “the public telecommunication
system”, “telecommunication service” and
“telecommunication system” there shall be substituted
respectively the following definitions -
|
|
|
“ ‘public
telecommunication system’ has the same meaning as in the
Telecommunications (Jersey) Law 200254;
|
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‘telecommunication
service’ has the same meaning as in the Telecommunications (Jersey) Law 2002;
|
|
|
‘telecommunication
system’ has the same meaning as in the Telecommunications (Jersey) Law 200257;”.
|
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3. For Article 10(1)(a)(iii) there shall be substituted the following clause -
|
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“(iii) any person to the extent that he is engaged
in the running
of a public telecommunication system; or”.
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4. In Article 10(3)(a), for the words “or Article 19A of the Telecommunications (Jersey) Law 1972” there shall be substituted the words “or under Article
52 of the Telecommunications (Jersey) Law
200257”.
|
|
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5. Article 11(3) and the Second
Schedule shall be repealed.
|
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Radio Equipment (Jersey) Law 1997
|
1. In Article 1(1) for the definition of “the Board” there shall be
substituted the following definition -
“‘the
Committee’ means the Industries Committee;”.
2. For the words “the
Board” wherever occurring (except in Article 1(1)) there shall be
substituted the words “the Committee”.
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SCHEDULE 2
SAVINGS AND
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS
(Article
67)
No exclusive privilege
1.-(1) On
and from the commencement of Article 2 of this Law, there shall be no exclusive
privilege within the meaning of Article 2 of the Telecommunications (Jersey) Law 1972.
(2) Sub-paragraph (1) is
included only for the avoidance of doubt.
Continuation of licences
2. A licence
in force under Article 5 of the Telecommunications (Jersey)
Law 1972 immediately before the repeal of
that Law shall -
(a) continue in force for
as long as it would have if that Law had not been repealed, unless revoked
under this Law; and
(b) be subject to this Law
as if it had been granted under Part 5 of this Law at the time when it was in
fact granted.
Continuation of Orders and authorities
3. Anything
done by the Board under the Radio Equipment (Jersey) Law 1997 (including the making of any Order
or the giving of any authority) before the amendment of that Law by this Law
shall, on the date of that amendment, be taken to have been done by the
Industries Committee and shall not be affected by that amendment.
References to Board
4.-(1) A
reference in any enactment, agreement or other document to the Board in any
capacity shall, on and from the day on which the function of the Board implied
in that capacity is transferred -
(a) become a reference to
the Committee, in the case where the function is to make an Order or to give
any authority or permit;
(b) become a reference to
the Authority, in the case where the function is to grant any licence;
(c) become a reference to
the company, in the case where the function is to run any telecommunication
system; or
(d) in any case (including
any of the cases set out in clauses (a) - (c)), become such reference
as the States may by Regulations otherwise prescribe.
(2) Accordingly, any
application made to the Board, any proceedings commenced with the Board as
party, or anything else involving the Board, being an application, proceedings
or thing that has not been finally determined, or finished, when the Board is
dissolved may be determined or continued by the person to whom, according to
sub-paragraph (1), reference is made in relation to the appropriate capacity.
(3) Furthermore, any record
or requirement made by, any information given to, any document deposited with,
any record kept by, or any statement made to, the Board in the exercise of any
of its functions before it is dissolved shall be taken to have been made by,
given to, deposited with, kept by or made to, the person to whom, according to
sub-paragraph (1), reference is made in relation to the appropriate
capacity.
(4) Sub-paragraph
(1)(a) - (c) is subject, in its application to any enactment,
agreement or other document, to any express provision, or implication, to the
contrary respectively in that or any other enactment, agreement or other
document (including any Regulation to the contrary under sub-paragraph (1)(d)).
References to infrastructure
5.-(1) A
reference in any enactment, agreement, or other document, in force immediately
before the day when this Schedule comes into force, to telegraphy or telephony
shall, on and from that day, become -
(a) a reference to
telecommunications; or
(b) such reference as the
States may by Regulations otherwise prescribe.
(2) This paragraph is
subject to any express provision, or implication, to the contrary in the
enactment, agreement or other document.
General saving
6.-(1) Any
Order made, or other thing done, by any person under any provision of the
Telecommunications (Jersey) Law 1972 that still had force or effect
immediately before the repeal of that provision by this Law shall, if there is
a provision that gives power to do that thing under this Law, be taken to have
been done under the latter provision and by the person who has, under the
latter provision, the function of doing that thing.
(2) Sub-paragraph (1) is
subject to any express provision, or implication, to the contrary in this Law
or in the Regulations made under this Law.
Regulations may make savings or
transitional provisions or consequential changes
7.-(1) Regulations
made under this Law may contain provisions of a saving or transitional nature
consequent on the enactment of this Law, and (without affecting the generality
of the preceding words) on the dissolution of the Board or on the taking up of
functions of the Board by the company, the Authority or a Committee of the
States.
(2) Regulations made under
this Law may contain provisions modifying any enactment in consequence of the
enactment of this Law.
(3) Any provision referred
to in sub-paragraph (1) or (2) may, if the Regulations so provide, come into
force on the day on which this Schedule comes into force or on a later day.
(4) To the extent to which
any such provision comes into force on a date that is earlier than the date of
its promulgation, the provision does not operate so as -
(a) to affect, in a manner
prejudicial to any person (other than the States or an authority of the
States), the rights of that person existing before the date of its promulgation;
or
(b) to impose liabilities
on any person (other than the States or an authority of the States) in respect
of anything done or omitted to be done before the date of its promulgation.