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Telecommunications
(Jersey) Law 2002[1]
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
Commencement
[see
endnotes]
PART 1
PRELIMINARY
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;
“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” includes –
(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;
“Minister”
means the Minister for Sustainable Economic Development;
“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]
(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 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
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 the person’s 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 the
person’s running of the system.
(4) A
person shall not offer to do anything, or hold 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
the person’s 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 the person’s
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 the person’s running of the first-mentioned
system.
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
Minister 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 12 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 the defendant’s 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 the
defendant’s 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 the defendant’s
running of the first-mentioned system,
it shall be a defence for
the defendant to prove that the part, apparatus or system had, without the
defendant’s knowledge, been connected to the telecommunication system in
respect of the defendant’s 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
the defendant’s 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 7 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.
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 Minister, if he or she 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 he or she 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 6
months or, if a shorter period is expressed in the Order, for that period
instead.
(4) If
the Minister amends such an Order so as to extend the period of suspension, the
aggregate period as extended cannot exceed 6 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.
5 Exceptions
to requirement
(1) A
person does not contravene Article 2 just because the person –
(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 2 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 the person’s control, and
(ii) every
message conveyed by it is conveyed solely for the person’s 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, the person runs a telecommunication system
that is not connected to another telecommunication system and –
(a) only the
person 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 the person 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.
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
7 Duties
of Minister and Authority
(1) The
Minister and the Authority shall each have a primary duty to perform his, her
or its functions under this Law in such manner as each considers is best
calculated to ensure that (so far as in his, her or 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 Minister and
the Authority shall each –
(a) perform
his, her or its functions under this Law in such manner as each 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 each considers it appropriate, by promoting competition among
persons engaged in commercial activities connected with telecommunications in
Jersey;
(b) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to promote efficiency, economy and effectiveness in commercial
activities connected with telecommunications in Jersey;
(c) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to further the economic interests of Jersey;
(d) perform
his, her or its functions under this Law in such manner as each considers is
best calculated to impose a minimum of restriction on persons engaged in
commercial activities connected with telecommunications in Jersey;
(e) in
performing his, her or 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 his, her or 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
Minister 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) to (d).
8 Minister
may direct or guide Authority
(1) The
Minister may, if he or she 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
Minister may, if he or she 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
Minister shall not give directions or guidance under this Article without first
consulting the Authority.
(5) The
Minister shall notify the States of the directions and guidance given by him or
her under this Article and of any comments received by him or her from the
Authority about the directions and guidance.
(6) The
Minister shall take reasonable steps to bring the purport of that notification
to the attention of the public.[3]
(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.
(9) The
requirement in paragraph (6) shall be taken to have been satisfied by the
publication in the Jersey Gazette of the notification, but this is not the only
way in which that requirement may be satisfied.[4]
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
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, refusing or revoking consent under
Article 16(3)(a);
(c) making
or revoking a determination under Article 16(3)(b);
(d) giving
or revoking a direction under Article 16(3)(c);
(e) modifying,
or refusing to modify, a condition under Article 18;
(f) giving,
or deciding not to give, a direction under Article 19;
(g) imposing
a financial penalty under Article 19A;
(h) revoking
a licence under Article 20;
(i) granting,
refusing or revoking an approval under Article 21;
(j) giving,
refusing or revoking consent or a direction, or making or revoking a
determination, under Article 21;
(k) any
other function of the Authority under this Law that the States prescribe by Regulations.[5]
(2) Nothing
in this Part limits or excludes any other avenue of review concerning the
exercise of a specified regulatory function.
(3) The
inclusion (otherwise than by virtue of Article 18) of any condition in a
licence is taken, for the purposes of this Part, to be part of the grant of the
licence.[6]
(4) Paragraph (3)
is included only for the avoidance of doubt.[7]
11 Notice and
consultation
(A1) This
Article applies to a specified regulatory function other than a specified
regulatory function under Article 19 or 19A.[8]
(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 29th 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 28th 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 –
(i) that the
Authority intends to exercise the specified regulatory function, either by
taking the action proposed or by taking some other specified action, and the
date when the proposed exercise of the function will have effect (expressed by
specification or by formula), or
(ii) that
the Authority does not intend to exercise the specified regulatory function.[9]
(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 (including the case referred to in sub-paragraph (a) or (b)),
by taking reasonable steps to bring the proposed exercise to the attention of
the public, coupled with making available for inspection full details of the
proposed exercise in such place as is specified in taking those steps.[10]
(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 taking reasonable steps to
bring the exercise to the attention of the person, coupled with making
available for inspection full details of the exercise in such place as is
specified in taking those steps.[11]
(8) The
Authority shall, on demand, make a document, full text, or full details,
referred to in this Article available for inspection by members of the public
at reasonable hours and, on demand, supply copies of it, or them, to members of
the public at reasonable cost.[12]
(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 28th 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) Paragraph (11)
applies where –
(a) after
considering any representations or objections, the Authority decides not to
take the action proposed in the exercise of the specified regulatory function
but to take some other action; and
(b) the
Authority is satisfied that a person or the public in general should be
permitted to make representations or objections in respect of the taking of
that action.[13]
(11) The
Authority may give fresh initial notice under paragraph (1).[14]
(12) The
requirement in paragraph (6)(c) (or (7)(c)) to take reasonable steps to
bring the proposed exercise to the attention of the public (or to bring the
exercise to the attention of the person) shall be taken to have been satisfied
by the publication in the Jersey Gazette of notice of the proposed exercise (or
exercise), but this is not the only way in which that requirement may be
satisfied.[15]
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 concerns a licence, excluding an exercise that concerns an
approval, but including –
(i) the giving, or
failure to give, a direction under Article 19, or
(ii) the
imposition of a financial penalty under Article 19A, or the amount of any
such penalty imposed,
any person may appeal
against the exercise.[16]
(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 29th 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.
13 Delay in implementation[17]
(1) A
person who lodges notice of an appeal in accordance with this Part against the
exercise of a specified regulatory function may, if the exercise has not taken
effect before the notice is lodged, include in that notice application for an
order for a delay in the exercise.
(2) If
a notice of appeal includes such an application, the exercise shall not take
effect earlier than the seventh day after the Court determines the application.
(3) The
Court shall consider the application as a matter of urgency.
(4) The
Court may grant the application if it considers that there are, prima facie,
reasonable grounds for the appeal and that the balance of convenience in the
case lies in favour of ordering the delay.
(5) The
Court may order that the delay shall cease to have effect at a time after the
date of its order and specified (whether by reference to the date when the
Court determines the appeal or to any other date, event or formula) in its
order.
(6) If
the Court’s determination is to refuse the application, the exercise
shall take effect on the later of the following days –
(a) the seventh day after the determination;
(b) the date on which the exercise was to have
taken effect according to the notices given by the Authority about the
exercise,
unless the Court decides
to allow the appeal against the exercise before the later of those days.
(7) [18]
PART 5
AUTHORITY AS REGULATOR AND
FACILITATOR
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 5
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).
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.
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 the person intends to run, or runs, a
telecommunication system under a class licence for which the person 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, and to act on such a determination; or
(c) to
comply with any direction given by the Authority in respect of anything to
which the licence relates.[19]
(3) The
Authority has power to –
(a) give,
refuse or revoke its consent as referred to in paragraph (2)(a);
(b) to
make or revoke a determination referred to in paragraph (2)(b); and
(c) to
give or revoke a direction referred to in paragraph (2)(c).[20]
(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 Minister has by Order prescribed under Article 56.[21]
(6) A
licence may contain a condition by which the telecommunication system to which
it relates is designated as a public telecommunication system.
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.
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 a licence may contain by virtue of Article 16;
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. [22]
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) Before
giving a direction under paragraph (1) the Authority shall give
notification to the licensee which –
(a) sets
out the direction which the Authority proposes to give to the licensee under
paragraph (3);
(b) specifies
the period during which the licensee has an opportunity to –
(i) make
representations about the matters notified,
(ii) comply
with any conditions referred to in the notification in respect of which the
licensee remains in contravention, or
(iii) remedy
the consequences of any contraventions referred to in the notification.[23]
(2A) Subject
to paragraphs (2B) and (2C), the period specified in the notification
under paragraph (2A)(b) shall be the period of 28 days beginning with
the day after the one on which notification was given.[24]
(2B) The
period specified in the notification may be shorter if –
(a) the
Authority has reasonable grounds for believing that the contravention in
respect of which it is proposing to make a determination is a repeated
contravention; and
(b) the
Authority has determined that, in those circumstances, a shorter period would
be appropriate.[25]
(2C) The
Authority may specify a longer period than 28 days, or extend the period
specified in the notification if it thinks it appropriate to do so.[26]
(2D) A
notification under this Article –
(a) must
be in writing;
(b) may
be given in respect of more than one contravention; and
(c) if it
is in respect of a continuing contravention, may be given in respect of any
period during which the contravention has continued.[27]
(2E) For
the purposes of paragraph (2B)(a), a repeated contravention is a
contravention of the same condition in respect of which the Authority has given
a notification or direction under this Article less than 12 months earlier
than the notification now being given.[28]
(2F) The
Authority shall not give a direction or a notification under this Article if it
is satisfied that its duties under Article 7 preclude the giving of a
direction.[29]
(2G) The
Authority shall not give a direction under this Article if it is satisfied
that –
(a) the
contravention of the condition is trivial; or
(b) the
licensee is taking reasonable steps to comply with the condition and to remedy
the effects of the contravention.[30]
(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 the person to prove that the person 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.
19A Authority may impose financial
penalty[31]
(1) This
Article applies where on a date after the commencement of this Article a
licensee has contravened or is contravening a condition contained in a licence.
(2) The
Authority may, in addition to, or in place of –
(a) giving
a direction under Article 19(1); or
(b) bringing
civil proceedings under Article 19(8) for an injunction or other
appropriate relief to compel compliance with such a direction,
make an order imposing a
financial penalty on the licensee for the contravention.
(3) If,
after the imposition of a financial penalty on a licensee, the licensee
continues to fail to comply with the condition the Authority may impose a
further financial penalty on the licensee.
(4) A
financial penalty imposed on a licensee or, if more than one financial penalty
is imposed, the total of those penalties, must not exceed 10% of the turnover
of the licensee during the period that the licensee was in contravention of the
condition contained in the licence, to a maximum period of 3 years.
(5) The
Minister may by Order prescribe the manner in which the turnover of a licensee
is to be calculated for the purposes of paragraph (4).
(6) A
financial penalty imposed under this Article is recoverable as a civil debt due
to the Authority.
(7) Before
making an order under paragraph (2) the Authority shall give notification
to the licensee which –
(a) sets
out the order which the Authority proposes to make; and
(b) specifies
the period during which the licensee has an opportunity to make representations
about the proposed order.
(8) Subject
to paragraphs (9) and (10), the period specified in the notification under
paragraph (7) must be the period of 28 days beginning with the day
after the one on which notification was given.
(9) The
period specified in the notification may be shorter if –
(a) the
Authority has reasonable grounds for believing that the contravention in
respect of which it is proposing to make the order is a repeated contravention;
and
(b) the
Authority has determined that, in those circumstances, a shorter period would
be appropriate.
(10) The
Authority may specify a longer period than 28 days, or extend the period
specified in the notification if it thinks it appropriate to do so.
(11) A
notification under this Article –
(a) must
be in writing;
(b) may
be given in respect of more than one contravention; and
(c) if it
is in respect of a continuing contravention, may be given in respect of any
period during which the contravention has continued.
(12) For
the purposes of paragraph (9)(a), a repeated contravention is a
contravention of the same condition in respect of which the Authority has given
a notification or direction under Article 19, or imposed a financial
penalty under this Article, less than 12 months earlier than the
notification now being given.
(13) The
Authority shall not make an order under this Article if it is satisfied
that –
(a) the
contravention of the condition is trivial; or
(b) the
licensee is taking reasonable steps to comply with the condition and to remedy
the effects of the contravention.
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.
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.
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.
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 the person cannot be compelled to produce in
proceedings before the Court or, in complying with any requirement to furnish
information, to give any information that the person 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.[32]
(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 5 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.
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
financial penalty imposed under Article 19A;
(e) every
approval.[33]
(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
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.
25A Relationship with other enactments[34]
Nothing in or done under
this Part shall relieve any person from an obligation to obtain any permit,
consent, permission or authorization required under the Road Works and
Events (Jersey) Law 2016 or any other
enactment.
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) [35]
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 3 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 the person, or by any person through whom the person takes the estate
or interest.
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.
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, 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) the employee
produces written evidence of the employee’s 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 7
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.
30 Minister may
acquire land for telecommunications
(1) If
it appears to the Minister 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 Minister 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 10 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 21 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.
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
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
Minister for Treasury and Resources 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
Minister for Treasury and Resources 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 authorize 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 Minister for Treasury and Resources 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.
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.
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
Minister for Treasury and Resources 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
Minister for Treasury and Resources may, against the income of the States,
guarantee loans made to a principal company by any person.
(5) The
Minister for Treasury and Resources shall not exercise the power under paragraph (3)
or (4) in respect of a principal company unless he or she 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
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 Policy and 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; 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.
(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.
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.
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.
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.
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 3 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) the person’s
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 the person
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.
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.
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 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.[36]
(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 the Companies
(Jersey) Law 1991; or
(c) any
other matter under the Companies
(Jersey) Law 1991.
(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.
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.
43 Transfer of staff
(1) If,
immediately before the transfer date, a person is an employee of the Board, on
the transfer date the person shall be transferred to the company and on and
from that date –
(a) the person
shall be an employee of the company;
(b) the person’s
contract of employment shall have effect as if it had originally been made
between the person 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, the person has served notice in
writing on the Board that the person refuses to be employed by the company,
then, on the transfer date, unless the person has revoked that
notice –
(a) the person
shall not become an employee of the company; and
(b) the person
shall be taken to have served notice of resignation from his or her 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, the person’s
employment shall terminate.
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.
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 the person’s
membership of the scheme, and the rights and liabilities under that scheme, are
unaffected by the person 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 the
person’s employer for the purposes of that scheme.
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 or the Public Employees
(Pensions) (Jersey) Law 2014.[37]
(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 or the Public Employees
(Pensions) (Jersey) Law 2014.[38]
(3) However,
a company is not required to comply with paragraph (1) or (2) if at least
0% 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 or the Public Employees
(Pensions) (Jersey) Law 2014.[39]
(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 or the Public Employees
(Pensions) (Jersey) Law 2014;
(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.[40]
(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 or the Public Employees
(Pensions) (Jersey) Law 2014.[41]
PART 9
OFFENCES
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 of 2 years and a fine.[42]
(2) Nothing
in this Article affects any right of a public telecommunications operator to
recover compensation for any damage, interference or consequential loss.
(3) This
Article is subject to Article 30(12) of the Road Works and
Events (Jersey) Law 2016.[43]
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 of 6 months and to a fine.[44]
(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 3 months or to a fine not exceeding level
2 on the standard scale, 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.
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 2
years or to a fine, or both.
50 Device for
fraudulent purpose
(1) Any
person who has in his or her custody or under his or her 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 or her custody or under his or her 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 2 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 2 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.
51 Improper use of
telecommunications system[45]
(1) A
person (the “sender”) who, by means of a telecommunication system,
sends a message or other matter that is (or conveys anything that is) grossly
offensive or of an indecent, obscene or menacing character, is guilty of an
offence if either paragraph (2) or (3) applies.
(2) This
paragraph applies if the sender knew or intended the message to be grossly
offensive or of an indecent, obscene or menacing character.
(3) This
paragraph applies if the sender was aware, at the time of sending the message,
of the risk that it would be viewed as grossly offensive or of an indecent,
obscene or menacing character by any reasonable member of the public.
(4) A
person who, for the purpose of causing annoyance, inconvenience or needless
anxiety to another –
(a) sends,
by means of a telecommunication system, a message that the person knows to be
false; or
(b) persistently
makes use of a telecommunication system,
is guilty of an offence.
(5) In
paragraphs (2) to (4), “message” includes a message or other
matter, and anything conveyed by the message.
(6) The
States may make Regulations amending this Article if it is considered necessary
to do so to take account of changes in technology, and such Regulations may
contain –
(a) provision
consequentially amending or modifying, for the purposes of this Article, an
expression used or defined in this Law; and
(b) incidental,
supplemental or consequential provision.
(7) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 2 years and to a fine.
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 the person’s 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 of 12 months and to a fine.[46]
(2) Paragraph (1)
shall not apply to any disclosure made –
(a) in
accordance with the order of any court or for the purposes of any criminal
proceedings;
(b) in
accordance with any warrant, authorization or notice issued, granted or given
under any provision of the Regulation of
Investigatory Powers (Jersey) Law 2005;
(c) in
compliance with any requirement imposed (apart from that Law) in consequence of
the exercise by any person of any power conferred by or under any enactment
exercisable by that person for the purpose of obtaining any document or other
information; or
(d) in
pursuance of any duty under the Regulation
of Investigatory Powers (Jersey) Law 2005 or under Part 11 of the Police
Procedures and Criminal Evidence (Jersey) Law 2003 to provide information or produce any document to the Investigatory
Powers Commissioner appointed or the Investigatory Powers Commissioner
established under the Regulation of
Investigatory Powers (Jersey) Law 2005.[47]
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 6
months or to a fine not exceeding level 3 on the standard scale, or both.
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 5 years or a fine, or both.
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 the
member’s functions of management as if the member 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
56 Orders in
interests of security etc.
(1) The
Minister may make Orders with respect to the functions of the Authority if he
or she 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 Minister
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.[48]
(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
Minister shall consult the Authority before making an Order under this Article.[49]
(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.
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.
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 Minister to do
so, it shall provide information, advice and help to the Minister 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.
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 Minister requires.
(2) The
Authority shall provide the Minister 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 4 months after the end of that year.
(3) The
Minister shall lay a copy of the report so provided before the States as soon
as practicable after the Minister receives the report.
(4) In
this Article, “financial year” has the same meaning as in the Competition
Regulatory Authority (Jersey) Law 2001.
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.
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 2
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 Minister of his or her
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 Minister for Treasury and Resources 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 the
inspector’s functions;
(k) for
the purpose of enabling or assisting the Viscount to carry out the
Viscount’s functions under the Bankruptcy
(Désastre) (Jersey) Law 1990;
(l) for
the purpose of facilitating the carrying out by any person of the person’s
functions under the Health and Safety
at Work (Jersey) Law 1989; or
(m) for such
other purposes as the States may by Regulations prescribe.[50]
(4) The
States may, by Regulations, modify paragraph (3)(a) – (l).
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 the Bailiff, Jurat or magistrate
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, authorize 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 authorized by a warrant under this Article, use such force as is
reasonably necessary to make that entry;
(b) may
take with the police officer such other persons as may be necessary;
(c) shall,
if any person on the premises so requires, show proof of the police
officer’s authority as such an officer and show the warrant authorizing
the entry; and
(d) on
leaving any unoccupied premises so entered, shall leave them as effectively
secured against trespassers as the police officer 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 6 months or a fine, or both.
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)
(c) the
Minister; and
(d) any
person who is, or is acting as, an officer, employee or agent in an
administration of the States for the Minister is assigned responsibility, or who
is performing any duty or exercising any power on behalf of the Minister.[51]
(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).
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 the person;
(b) by
leaving it at the person’s proper address;
(c) by
sending it by post to the person at that address; or
(d) by
sending it to the person at that address by facsimile, other electronic
transmission, or by any other means by which the person 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 7 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 the person’s proper address within the
meaning of paragraph (5), as the one at which the person or someone on the
person’s 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 7 of the Interpretation
(Jersey) Law 1954 as the person’s 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.
65 Regulations and
Orders
(1) The
Minister 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 Minister.
(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 Minister 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 up to level 3 on
the standard scale.[52]
(5) [53]
66 Savings and
transitional and consequential provisions
The Schedule shall have
effect.
67 Citation
This Law may be cited as
the Telecommunications (Jersey) Law 2002.