ELIZABETH II
COMMUNICATIONS ACT 2003
2003 CHAPTER 21
AN
ACT to confer functions on the Office of
Communications; to make provision about the regulation of the provision of
electronic communications networks and services and of the use of the
electro-magnetic spectrum; to make provision about the regulation of broadcasting
and of the provision of television and radio services; to make provision about
mergers involving newspaper and other media enterprises and, in that
connection, to amend the Enterprise
Act 2002; and for connected purposes.
[17th July 2003]
BE
IT ENACTED by the Queen’s Most Excellent
Majesty, by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows[8] –
PART 1
FUNCTIONS
OF OFCOM
Transferred
and assigned functions
1 Functions and general powers of OFCOM
(1) The
Office of Communications (“OFCOM”) shall have the following functions –
(a) the functions transferred
to OFCOM under section 2; and
(b) such other functions as
may be conferred on OFCOM by or under any enactment (including this Act).
(2) OFCOM
shall also have any functions in relation to telephone numbers that are
conferred on them by the law of the Isle of Man
or of any of the Channel Islands.
(3) OFCOM
may do anything which appears to them to be incidental or conducive to the
carrying out of their functions, including borrow money.
(4) OFCOM
are not to borrow money except with the consent of the Secretary of State, or
in accordance with a general authorisation given by him.
(5) OFCOM’s
powers under subsection (3) include, in particular –
(a) power to undertake
research and development work in connection with any matter in relation to
which they have functions;
(b) power to promote the
carrying out of such research and development by others, or otherwise to
arrange for it to be carried out by others;
(c) power to institute and
carry on criminal proceedings in England and Wales or Northern Ireland for an
offence relating to a matter in relation to which they have functions; and
(d) power, in such cases and
in such circumstances as they may think fit, to make payments (where no legal
liability arises) to persons adversely affected by the carrying out by OFCOM of
any of their functions.
(6) In
exercise of their powers under subsection (3), OFCOM must establish and
maintain separate offices in each of the following parts of the United Kingdom –
(a) England;
(b) Wales;
(c) Scotland; and
(d) Northern Ireland.
(7) Part 2
of the Deregulation and Contracting
Out Act 1994 (c. 40) (contracting out) is to have effect in
relation to the functions conferred on OFCOM by or under any enactment as
if –
(a) OFCOM were an office
holder within the meaning of that Part; and
(b) a power of OFCOM to make
subordinate legislation were excluded from section 69 of that Act to the extent
only that it is exercisable by statutory instrument.
(8) In
this section “telephone numbers” has the same meaning as in Chapter 1 of
Part 2.
[1A Saving of Telecommunications Law
Nothing in this Act shall
apply to any matter governed by the provisions of the Telecommunications
(Jersey) Law 2002.[9]]
2 Transfer of functions of
pre-commencement regulators
(1) As
from such date as the Secretary of State may appoint for the coming into force
of this section, the functions that are set out in Schedule 1 (functions
of the Secretary of State and of the pre-commencement regulators) shall become
functions of OFCOM in accordance with that Schedule.
(2) References
in any enactment to a person who is a person from whom functions are
transferred by virtue of this section are to have effect, so far as necessary
for the purposes of the transfers, as references to OFCOM.
(3) The
functions of OFCOM are to include the carrying out of the transferred
functions, at times after the time when they become functions of OFCOM, in
relation to anything occurring before that time.
(4) The
provisions of this section have effect subject to –
(a) the modifications made by
this Act of the enactments relating to the transferred functions; and
(b) any express transitional
or consequential provisions made by or under this Act in relation to those
enactments.
General
duties in carrying out functions
3 General duties of OFCOM
(1) It
shall be the principal duty of OFCOM, in carrying out their functions –
(a) to further the interests
of citizens in relation to communications matters; and
(b) to further the interests
of consumers in relevant markets, where appropriate by promoting competition.
(2) The
things which, by virtue of subsection (1), OFCOM are required to secure in the carrying
out of their functions include, in particular, each of the following –
(a) the optimal use for
wireless telegraphy of the electro-magnetic spectrum;
(b) * * * * *
(c) the availability
throughout the United
Kingdom [and the Bailiwick of Jersey] of a
wide range of television and radio services which (taken as a whole) are both
of high quality and calculated to appeal to a variety of tastes and interests;
(d) the maintenance of a
sufficient plurality of providers of different television and radio services;
(e) the application, in the
case of all television and radio services, of standards that provide adequate
protection to members of the public from the inclusion of offensive and harmful
material in such services;
(f) the application, in the
case of all television and radio services, of standards that provide adequate
protection to members of the public and all other persons from both –
(i) unfair treatment in programmes included in
such services; and
(ii) unwarranted
infringements of privacy resulting from activities carried on for the purposes
of such services.
(3) In
performing their duties under subsection (1), OFCOM must have regard, in
all cases, to –
(a) the principles under
which regulatory activities should be transparent, accountable, proportionate,
consistent and targeted only at cases in which action is needed; and
(b) any other principles
appearing to OFCOM to represent the best regulatory practice.
(4) OFCOM
must also have regard, in performing those duties, to such of the following as
appear to them to be relevant in the circumstances –
(a) the desirability of
promoting the fulfilment of the purposes of public service television
broadcasting in the United
Kingdom [and the Bailiwick of Jersey];
(b) the desirability of
promoting competition in relevant markets;
(c) the desirability of
promoting and facilitating the development and use of effective forms of
self-regulation;
(d) the desirability of encouraging
investment and innovation in relevant markets;
(e) * * * * *
(f) the different needs and
interests, so far as the use of the electro-magnetic spectrum for wireless
telegraphy is concerned, of all persons who may wish to make use of it;
(g) the need to secure that
the application in the case of television and radio services of standards
falling within subsection (2)(e) and (f) is in the manner that best guarantees
an appropriate level of freedom of expression;
(h) the vulnerability of
children and of others whose circumstances appear to OFCOM to put them in need
of special protection;
(i) the needs of persons
with disabilities, of the elderly and of those on low incomes;
(j) the desirability of
preventing crime and disorder;
(k) the opinions of consumers
in relevant markets and of members of the public generally;
(l) the different interests
of persons in the different parts of the United Kingdom [and the Bailiwick
of Jersey], of the different ethnic communities within the United Kingdom [and the Bailiwick
of Jersey] and of persons living in rural and in urban areas;
(m) the extent to which, in
the circumstances of the case, the furthering or securing of the matters
mentioned in subsections (1) and (2) is reasonably practicable.
(5) In
performing their duty under this section of furthering the interests of
consumers, OFCOM must have regard, in particular, to the interests of those
consumers in respect of choice, price, quality of service and value for money.
(6) Where
it appears to OFCOM, in relation to the carrying out of any of the functions
mentioned in section 4(1), that any of their general duties conflict with one
or more of their duties under sections 4, 24 and 25, priority must be given to
their duties under those sections.
(7) Where
it appears to OFCOM that any of their general duties conflict with each other
in a particular case, they must secure that the conflict is resolved in the
manner they think best in the circumstances.
(8) Where
OFCOM resolve a conflict in an important case between their duties under
paragraphs (a) and (b) of subsection (1), they must publish a statement
setting out –
(a) the nature of the
conflict;
(b) the manner in which they
have decided to resolve it; and
(c) the reasons for their
decision to resolve it in that manner.
(9) Where
OFCOM are required to publish a statement under subsection (8), they
must –
(a) publish it as soon as
possible after making their decision but not while they would (apart from a
statutory requirement to publish) be subject to an obligation not to publish a
matter that needs to be included in the statement; and
(b) so publish it in such
manner as they consider appropriate for bringing it to the attention of the
persons who, in OFCOM’s opinion, are likely to be affected by the matters to
which the decision relates.
(10) Every
report under paragraph 12 of the Schedule to the Office of Communications Act 2002
(c. 11) (OFCOM’s annual report) for a financial year must contain a
summary of the manner in which, in that year, OFCOM resolved conflicts arising
in important cases between their general duties.
(11) A
case is an important case for the purposes of subsection (8) or (10) only
if –
(a) it involved one or more of
the matters mentioned in subsection (12); or
(b) it otherwise appears to
OFCOM to have been of unusual importance.
(12) Those
matters are –
(a) a major change in the
activities carried on by OFCOM;
(b) matters likely to have a
significant impact on persons carrying on businesses in any of the relevant
markets; or
(c) matters likely to have a
significant impact on the general public in the United Kingdom [and the Bailiwick
of Jersey] * * *.
(13) * * * * *
(14) In
this section –
“citizens” means all
members of the public in the United
Kingdom;
“communications matters”
means the matters in relation to which OFCOM have functions;
“general duties”, in relation
to OFCOM, means –
(a) their duties under
subsections (1) to (5); and
(b) the duty which, under
section 107(5), is to rank equally for the purposes of subsections (6) and (7)
with their duties under this section;
“relevant markets” means
markets for any of the services, facilities, apparatus or directories in
relation to which OFCOM have functions.
4 Duties for the purpose of fulfilling
Community obligations
* * * * * * *
5 Directions in respect of networks and
spectrum functions
(1) This
section applies to the following functions of OFCOM –
(a) their functions under
Part 2; and
(b) their functions under the
enactments relating to the management of the radio spectrum that are not
contained in that Part.
(2) It
shall be the duty of OFCOM to carry out those functions in accordance with such
general or specific directions as may be given to them by the Secretary of
State.
(3) The
Secretary of State’s power to give directions under this section shall be
confined to a power to give directions for one or more of the following
purposes –
(a) in the interests of
national security;
(b) in the interests of
relations with the government of a country or territory outside the United Kingdom
[and the Bailiwick of Jersey];
(c) for the purpose of
securing compliance with international obligations of the United Kingdom [and the Bailiwick
of Jersey];
(d) in the interests of the
safety of the public or of public health.
(4) * * * * *
(5) * * * * *
(6) * * * * *
(7) * * * * *
6 Duties to review regulatory burdens
(1) OFCOM
must keep the carrying out of their functions under review with a view to
securing that regulation by OFCOM does not involve –
(a) the imposition of burdens
which are unnecessary; or
(b) the maintenance of
burdens which have become unnecessary.
(2) In
reviewing their functions under this section it shall be the duty of
OFCOM –
(a) to have regard to the
extent to which the matters which they are required under section 3 to further
or to secure are already furthered or secured, or are likely to be furthered or
secured, by effective self-regulation; and
(b) in the light of that, to
consider to what extent it would be appropriate to remove or reduce regulatory
burdens imposed by OFCOM.
(3) In
determining for the purposes of this section whether procedures for
self-regulation are effective OFCOM must consider, in particular –
(a) whether those procedures
are administered by a person who is sufficiently independent of the persons who
may be subjected to the procedures; and
(b) whether adequate
arrangements are in force for funding the activities of that person in relation
to those procedures.
(4) OFCOM
must, from time to time, publish a statement setting out how they propose,
during the period for which the statement is made, to secure that regulation by
OFCOM does not involve the imposition or maintenance of unnecessary burdens.
(5) The
first statement to be published under this section –
(a) must be published as soon
as practicable after the commencement of this section; and
(b) shall be a statement for
the period of twelve months beginning with the day of its publication.
(6) A
subsequent statement –
(a) must be published during
the period to which the previous statement related; and
(b) must be a statement for
the period of twelve months beginning with the end of the previous period.
(7) It
shall be the duty of OFCOM, in carrying out their functions at times during a
period for which a statement is in force under this section, to have regard to
that statement.
(8) OFCOM
may, if they think fit, revise a statement under this section at any time
before or during the period for which it is made.
(9) Where
OFCOM revise a statement, they must publish the revision as soon as
practicable.
(10) The
publication under this section of a statement, or of a revision of a statement,
must be in such manner as OFCOM consider appropriate for bringing it to the
attention of the persons who, in their opinion, are likely to be affected by
the matters to which it relates.
7 Duty to carry out impact assessments
(1) This
section applies where –
(a) OFCOM are proposing to do
anything for the purposes of, or in connection with, the carrying out of their
functions; and
(b) it appears to them that
the proposal is important;
but this section does not
apply if it appears to OFCOM that the urgency of the matter makes it
impracticable or inappropriate for them to comply with the requirements of this
section.
(2) A
proposal is important for the purposes of this section only if its
implementation would be likely to do one or more of the following –
(a) to involve a major change
in the activities carried on by OFCOM;
(b) to have a significant
impact on persons carrying on businesses in the markets for any of the
services, facilities, apparatus or directories in relation to which OFCOM have
functions; or
(c) to have a significant
impact on the general public in the United Kingdom [and the Bailiwick
of Jersey] * * *.
(3) Before
implementing their proposal, OFCOM must either –
(a) carry out and publish an
assessment of the likely impact of implementing the proposal; or
(b) publish a statement
setting out their reasons for thinking that it is unnecessary for them to carry
out an assessment.
(4) An
assessment under subsection (3)(a) must set out how, in OFCOM’s opinion, the
performance of their general duties (within the meaning of section 3) is
secured or furthered by or in relation to what they propose.
(5) An
assessment carried out under this section –
(a) may take such form, and
(b) must relate to such
matters,
as OFCOM consider
appropriate.
(6) In
determining the matters to which an assessment under this section should
relate, OFCOM must have regard to such general guidance relating to the
carrying out of impact assessments as they consider appropriate.
(7) Where
OFCOM publish an assessment under this section –
(a) they must provide an
opportunity of making representations to them about their proposal to members
of the public and other persons who, in OFCOM’s opinion, are likely to be
affected to a significant extent by its implementation;
(b) the published assessment
must be accompanied by a statement setting out how representations may be made;
and
(c) OFCOM are not to
implement their proposal unless the period for making representations about it
has expired and they have considered all the representations that were made in
that period.
(8) Where
OFCOM are required (apart from this section) –
(a) to consult about a
proposal to which this section applies, or
(b) to give a person an
opportunity of making representations about it,
the requirements of this
section are in addition to, but may be performed contemporaneously with, the
other requirements.
(9) Every
report under paragraph 12 of the Schedule to the Office of Communications Act 2002
(c. 11) (OFCOM’s annual report) must set out –
(a) a list of the assessments
under this section carried out during the financial year to which the report
relates; and
(b) a summary of the
decisions taken during that year in relation to proposals to which assessments
carried out in that year or previous financial years relate.
(10) The
publication of anything under this section must be in such manner as OFCOM
consider appropriate for bringing it to the attention of the persons who, in
OFCOM’s opinion, are likely to be affected if their proposal is implemented.
8 Duty to publish and meet promptness
standards
(1) It
shall be the duty of OFCOM to publish a statement setting out the standards
they are proposing to meet with respect to promptness in –
(a) the carrying out of their
different functions; and
(b) the transaction of
business for purposes connected with the carrying out of those functions.
(2) This
section does not require standards to be set out with respect to anything which
(apart from this section) is required to be done by a time, or within a period,
provided for by or under an enactment.
(3) OFCOM
may, if they think fit, at any time revise the statement for the time being in
force under this section.
(4) It
shall be the duty of OFCOM –
(a) in carrying out their
functions, and
(b) in transacting business
for purposes connected with the carrying out of their functions,
to have regard to the
statement for the time being in force under this section.
(5) Where
OFCOM revise a statement under this section, they must publish the revision as
soon as practicable.
(6) The
publication under this section of a statement, or of a revision of a statement,
must be in such manner as OFCOM consider appropriate for bringing it to the
attention of the persons who, in their opinion, are likely to be affected by
the matters to which it relates.
(7) OFCOM’s
report under paragraph 12 of the Schedule to the Office of Communications Act 2002
(c. 11) (annual report) for each financial year must contain a statement
by OFCOM summarising the extent to which they have complied during that year
with the standards set out under this section.
9 Secretary of State’s powers in relation
to promptness standards
(1) Where
the Secretary of State considers that the statement published by OFCOM under
section 8 is not adequate for securing that they meet satisfactory
promptness standards, he may give them a notification to that effect.
(2) If
the period of three months after the date of the giving of a notification under
subsection (1) expires without OFCOM taking steps which the Secretary of
State is satisfied remedy the situation, he may give them a direction under
this section.
(3) A
direction under this section is one requiring OFCOM to issue a new or revised
statement under section 8 in accordance with the direction.
(4) Before
giving a direction under this section, the Secretary of State must –
(a) give OFCOM an opportunity
of making representations to him about his proposed direction; and
(b) have regard to any
representations made to him by them.
(5) Where
the Secretary of State gives a direction to OFCOM under this section, he must
publish a copy of it in such manner as he considers appropriate for bringing it
to the attention of persons who, in his opinion, are likely to be affected by
OFCOM’s promptness standards.
(6) It
shall be the duty of OFCOM to revise their statement under section 8 in
accordance with any direction of the Secretary of State under this section.
(7) In
this section “promptness standards” means standards of promptness in –
(a) the carrying out by OFCOM
of their different functions; and
(b) the transaction by them
of business for purposes connected with the carrying out of those functions.
(8) No
notification is to be given under subsection (1) at any time in the period of
twelve months beginning with the commencement of section 8.
Accessible
domestic communications apparatus
10 Duty to encourage availability of easily
useable apparatus
* * * * * * *
Media
literacy
11 Duty to promote media literacy
(1) It
shall be the duty of OFCOM to take such steps, and to enter into such
arrangements, as appear to them calculated –
(a) to bring about, or to
encourage others to bring about, a better public understanding of the nature
and characteristics of material published by means of the electronic media;
(b) to bring about, or to
encourage others to bring about, a better public awareness and understanding of
the processes by which such material is selected, or made available, for
publication by such means;
(c) to bring about, or to
encourage others to bring about, the development of a better public awareness
of the available systems by which access to material published by means of the
electronic media is or can be regulated;
(d) to bring about, or to
encourage others to bring about, the development of a better public awareness
of the available systems by which persons to whom such material is made
available may control what is received and of the uses to which such systems
may be put; and
(e) to encourage the
development and use of technologies and systems for regulating access to such
material, and for facilitating control over what material is received, that are
both effective and easy to use.
(2) In
this section, references to the publication of anything by means of the
electronic media are references to its being –
(a) broadcast so as to be
available for reception by members of the public or of a section of the public;
or
(b) distributed by means of
an electronic communications network to members of the public or of a section
of the public.
OFCOM’s
Content Board
12 Duty to establish and maintain Content
Board
(1) It
shall be the duty of OFCOM, in accordance with the following provisions of this
section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002
(c. 11) (committees of OFCOM) to establish and maintain a committee to be
known as “the Content Board”.
(2) The
Content Board shall consist of –
(a) a chairman appointed by
OFCOM; and
(b) such number of other
members appointed by OFCOM as OFCOM think fit.
(3) The
chairman of the Content Board must be a non-executive member of OFCOM but is
not to be the chairman of OFCOM.
(4) At
least one of the other members of the Content Board must also be a
non-executive member of OFCOM other than the chairman of OFCOM.
(5) In
appointing persons to be members of the Content Board, OFCOM must secure that,
for each of the following parts of the United Kingdom –
(a) England,
(b) Scotland,
(c) Wales, and
(d) Northern Ireland,
there is a different
member of the Board capable of representing the interests and opinions of
persons living in that part of the United Kingdom [and that there is a
member of the Board capable of representing persons living in the Bailiwick of
Jersey].
(6) In
appointing a person for the purposes of subsection (5)(a), OFCOM must have
regard to the desirability of ensuring that the person appointed is able to
represent the interests and opinions of persons living in all the different
regions of England.
(7) The
validity of any proceedings of the Content Board shall not be affected by any
failure by OFCOM to comply with subsection (5) or (6).
(8) It
shall be the duty of OFCOM when appointing members of the Content Board to
secure, so far as practicable, that a majority of the members of the Board
(counting the chairman) consists of persons who are neither members nor
employees of OFCOM.
(9) The
following shall be disqualified from being the chairman or another member of
the Content Board –
(a) governors and employees
of the BBC;
(b) members and employees of
the Welsh Authority; and
(c) members and employees of
C4C.
(10) Before
appointing a person to be the chairman or another member of the Content Board,
OFCOM must satisfy themselves that he will not have any financial or other
interest which would be likely prejudicially to affect the carrying out by him
of any of his functions as chairman or member of the Content Board.
(11) A
person is not to be taken to have such an interest by reason only that he is or
will be a member or employee of OFCOM.
(12) Every
person whom OFCOM propose to appoint to be the chairman or another member of
the Content Board, shall, whenever requested to do so by OFCOM, furnish OFCOM
with any information they consider necessary for the performance of their duty
under subsection (10).
(13) In
addition to paying remuneration and expenses under paragraph 14(4) of the
Schedule to the Office of
Communications Act 2002 (c. 11), OFCOM may –
(a) pay to, or in respect of,
any member of the Content Board who is not a member or employee of OFCOM, such
sums by way of pensions, allowances or gratuities as OFCOM may determine; and
(b) provide for the making of
such payments to or in respect of any such member of the Content Board.
(14) In
subsection (13) –
(a) the reference to
pensions, allowances and gratuities includes a reference to similar benefits
payable on death or retirement; and
(b) the reference to
providing for the payment of a pension, allowance or gratuity to, or in respect
of, a person includes a reference to the making of payments towards the
provision or payment of a pension, allowance or gratuity, or of any such
similar benefits, to or in respect of that person.
13 Functions of the Content Board
(1) The
Content Board shall have such functions as OFCOM, in exercise of their powers
under the Schedule to the Office of
Communications Act 2002 (c. 11), may confer on the Board.
(2) The
functions conferred on the Board must include, to such extent and subject to
such restrictions and approvals as OFCOM may determine, the carrying out on
OFCOM’s behalf of –
(a) functions in relation to
matters that concern the contents of anything which is or may be broadcast or
otherwise transmitted by means of electronic communications networks; and
(b) functions in relation to
the promotion of public understanding or awareness of matters relating to the
publication of matter by means of the electronic media.
(3) In
determining what functions to confer on the Content Board, OFCOM must have
particular regard to the desirability of securing that the Board have at least
a significant influence on decisions which –
(a) relate to the matters
mentioned in subsection (2); and
(b) involve the consideration
of different interests and other factors as respects different parts of the United Kingdom
[and the Bailiwick of Jersey].
(4) It
shall be the duty of the Content Board to ensure, in relation to –
(a) the carrying out of
OFCOM’s functions under Part 3 of this Act, Parts 1 and 3 of the 1990
Act and Parts 1 and 2 of the 1996 Act,
(b) the matters with respect
to which functions are conferred on the Board, and
(c) such other matters
mentioned in subsection (2) as OFCOM may determine,
that OFCOM are aware of
the different interests and other factors which, in the Board’s opinion, need
to be taken into account as respects the different parts of the United Kingdom
in relation to the carrying out of OFCOM’s functions.
(5) The
power of OFCOM to determine the Content Board’s functions includes power to
authorise the Board to establish committees and panels to advise the Board on
the carrying out of some or all of the Board’s functions.
(6) The
power of OFCOM to authorise the establishment of a committee or panel by the
Content Board includes power to authorise the establishment of a committee or
panel that includes persons who are not members of the Board.
(7) In
this section references to the publication of anything by means of the
electronic media are references to its being –
(a) broadcast so as to be
available for reception by members of the public or of a section of the public;
or
(b) distributed by means of
an electronic communications network to members of the public or of a section
of the public.
Functions
for the protection of consumers
*
* * * * * *
Advisory
committees
20 Advisory committees for different parts of
the United Kingdom
* * * * * * *
21 Advisory committee on elderly and disabled
persons
(1) It
shall be the duty of OFCOM, in accordance with the following provisions of this
section, to exercise their powers under paragraph 14 of the Schedule to
the Office of Communications Act
2002 (c. 11) (committees of OFCOM) to establish and maintain a
committee to provide the advice specified in this section.
(2) The
committee shall consist of –
(a) a chairman appointed by
OFCOM; and
(b) such number of other
members appointed by OFCOM as OFCOM think fit.
(3) In
appointing persons to be members of the committee, OFCOM must have regard to
the desirability of ensuring that the members of the committee include –
(a) persons who are familiar
with the needs of the elderly; and
(b) persons who are familiar
with the needs of persons with disabilities.
(4) The
function of the committee shall be to provide advice to OFCOM (including other
committees established by OFCOM) about the interests, in relation to
communications matters, of –
(a) the elderly; and
(b) persons with
disabilities.
(5) The
committee may also, at the request of the Consumer Panel, provide advice about
those interests to the Consumer Panel.
(6) The
consent of OFCOM is required for the giving of advice under subsection (5).
(7) In
this section “communications matters” has the same meaning as in section 3.
International
matters
22 Representation on international and other
bodies
(1) It
shall be the duty of OFCOM to do, as respects the United Kingdom, such of the
following things as they are required to do by the Secretary of State –
(a) provide representation on
behalf of Her Majesty’s Government in the United Kingdom on international and
other bodies having communications functions;
(b) become or serve as a
member of an international or other body having such functions;
(c) subscribe to such a body;
(d) provide representation on
behalf of Her Majesty’s Government in the United Kingdom at international
meetings about communications.
(2) OFCOM
shall also have the power, if requested to do so by the Secretary of State, to
do one or more of those things as respects any of the Channel
Islands, the Isle of Man or a
British overseas territory.
(3) It
shall be the duty of OFCOM to carry out their functions under this section in
accordance with such general or specific directions as may be given to them by
the Secretary of State.
(4) The
Secretary of State –
(a) is not entitled to direct
OFCOM to comply with a request made under subsection (2); but
(b) may give directions about
how OFCOM are to carry out any representative role that they undertake in
accordance with such a request.
(5) In
this section –
“communications functions”
means –
(a) functions relating to the
use of the electro-magnetic spectrum for wireless telegraphy;
(b) functions relating to the
regulation of television or radio broadcasting or the provision of television
and radio services; and
(c) any other function which
relates to, or is connected with, a matter in respect of which OFCOM have
functions;
“international meetings
about communications” means international meetings relating to, or to matters
connected with, one or more of the following –
(a) the use of the
electro-magnetic spectrum for wireless telegraphy;
(b) the regulation of
television or radio broadcasting or of the provision of television and radio
services;
(c) any other matter in
respect of which OFCOM have functions.
(6) In
relation to –
(a) a part of the British Islands outside the United Kingdom, or
(b) a British overseas
territory,
the references in
subsection (5) to matters in respect of which OFCOM have functions include
references to matters corresponding, in the case of that part of those Islands
or of that territory, to matters in respect of which OFCOM’s functions are
confined to the United Kingdom.
(7) In
subsection (5) “television or radio broadcasting” includes the provision by
means other than broadcasting of services similar to those provided by television
or radio broadcasts.
23 Directions for international purposes in
respect of broadcasting functions
(1) This
section applies to –
(a) OFCOM’s functions under
the enactments relating to broadcasting; and
(b) the matters in relation
to which those functions are conferred.
(2) It
shall be the duty of OFCOM –
(a) to carry out those
functions in accordance with any general or specific directions given to them
by the Secretary of State for the purpose mentioned in subsection (3); and
(b) to carry out such other
functions in relation to the matters to which this this section applies as they
are required to carry out by any general or specific directions so given.
(3) The
Secretary of State is not to give a direction under this section except for the
purpose of securing compliance, in relation to a matter to which this section
applies, with an international obligation of the United Kingdom [on behalf of
the Bailiwick of Jersey].
(4) A
direction under this section must be contained in an order made by the Secretary
of State.
(5) In
this section “the enactments relating to broadcasting” means –
(a) the 1990 Act;
(b) the 1996 Act;
(c) Part 3 of this Act;
and
(d) the other provisions of
this Act so far as relating to the 1990 Act, the 1996 Act or that Part.
General
information functions
24 Provision of information to the Secretary
of State
(1) It
shall be the duty of OFCOM to comply with a direction by the Secretary of State
to provide him with information falling within subsection (2).
(2) The
information that may be the subject of a direction under this section is any
information reasonably required by the Secretary of State for the purpose of
enabling him to secure compliance with an international obligation of the United Kingdom
[on behalf of the Bailiwick of Jersey].
(3) Information
that is required to be provided by a direction under this section must be
provided in such manner and at such times as may be required by the direction.
25 Community requirement to provide
information
(1) This
section applies if –
(a) the European Commission
requires OFCOM to provide it with information for the purpose of enabling it to
perform any of its functions in relation to electronic communications networks,
electronic communications services or associated facilities; and
(b) the information is
information obtained by OFCOM in the course of carrying out any of their
functions under –
(i) Part 2; or
(ii) the enactments relating
to the management of the radio spectrum that are not contained in that Part.
(2) It
shall be the duty of OFCOM to comply with the requirement.
(3) If
information provided to the European Commission under this section has been
obtained by OFCOM from a person who is or, at the time the information was
obtained from him, was –
(a) a communications
provider, or
(b) a person making
associated facilities available,
OFCOM must notify him that
they have provided the information to the Commission.
(4) It
shall be for OFCOM to determine the manner in which a notification is given
under subsection (3).
26 Publication of information and advice for
consumers etc.
(1) OFCOM
may arrange for the publication of such information and advice about matters in
relation to which they have functions as it appears to them to be appropriate
to make available to the persons mentioned in subsection (2).
(2) Those
persons are –
(a) the customers of
communications providers;
(b) the customers of persons
who make associated facilities available;
(c) persons who use
electronic communications networks, electronic communications services or
associated facilities; and
(d) persons to whom radio and
television services are provided or who are otherwise able or likely to take
advantage of any of those services.
(3) In
arranging for the publication of information or advice under this section,
OFCOM must have regard to the need to exclude from publication, so far as that
is practicable, the matters which are confidential in accordance with
subsections (4) and (5).
(4) A
matter is confidential under this subsection if –
(a) it relates specifically
to the affairs of a particular body; and
(b) publication of that
matter would or might, in OFCOM’s opinion, seriously and prejudicially affect
the interests of that body.
(5) A
matter is confidential under this subsection if –
(a) it relates to the private
affairs of an individual; and
(b) publication of that
matter would or might, in OFCOM’s opinion, seriously and prejudicially affect
the interests of that individual.
(6) The
publication of information or advice under this section must be in such manner
as OFCOM consider appropriate.
Employment
in broadcasting
* * * * * * *
Charging
28 General power to charge for services
(1) OFCOM
may provide a service to which this section applies to any person on such terms
as to the making of payments to OFCOM –
(a) as they may determine in
advance; or
(b) as may be agreed between
that person and OFCOM.
(2) This
section applies to a service which is provided by OFCOM to a person in the
course of carrying out their functions and is neither –
(a) a service which OFCOM are
under a duty to provide to that person; nor
(b) one in respect of which
express provision is made by or under an enactment for authorising or
forbidding the payment of fees or charges.
(3) In
this section references to providing a service to a person include references
to a service consisting in –
(a) the giving of advice to
that person;
(b) the entry of his
particulars in a register or other record kept by OFCOM otherwise than in
pursuance of an express statutory duty to keep the register or record; or
(c) the taking of steps for
the purposes of determining whether to grant an application for an entry in a
register or record so kept.
Guarantees
29 Secretary of State guarantees for OFCOM
borrowing
(1) The
Secretary of State may guarantee –
(a) the repayment of the
principal of any borrowing by OFCOM;
(b) the payment of interest
on any such borrowing; and
(c) the discharge of other financial
obligations incurred by OFCOM in connection with any such borrowing.
(2) The
power of the Secretary of State to give a guarantee under this section is a
power (subject to subsection (3)) to give it in such manner and on such
conditions as he thinks fit.
(3) The
Secretary of State must not give a guarantee under this section if the
aggregate of –
(a) the amounts that he may
be required to pay for fulfilling that guarantee, and
(b) the amounts that he may
be required to pay for fulfilling other guarantees previously given under this
section and still in force,
exceeds £5 million.
(4) The
Secretary of State may by order substitute another amount for the amount for
the time being specified in subsection (3).
(5) No
order is to be made containing provision authorised by subsection (4) unless a
draft of the order has been laid before Parliament and approved by a resolution
of the House of Commons.
(6) Immediately
after a guarantee is given under this section, the Secretary of State must lay
a statement of the guarantee before each House of Parliament.
(7) Where
any sum is paid by the Secretary of State under a guarantee given under this
section, he must lay a statement relating to that sum before each House of
Parliament as soon as practicable after the end of each of the financial
years –
(a) beginning with the one in
which the sum is paid; and
(b) ending with the one in
which OFCOM’s liabilities under subsection (8) in respect of that sum are
finally discharged.
(8) If
sums are paid by the Secretary of State in fulfilment of a guarantee given
under this section OFCOM must pay him –
(a) such amounts in or
towards the repayment to him of those sums as he may direct; and
(b) interest, at such rates
as he may determine, on amounts outstanding under this subsection.
(9) Payments
to the Secretary of State under subsection (8) must be made at such times and
in such manner as he may determine.
Provisions
supplemental to transfer of functions
30 Transfers of property etc. from
pre-commencement regulators
(1) The
Secretary of State may, by a direction to any of the pre-commencement
regulators, require that regulator to make one or more schemes for the transfer
from that regulator to OFCOM of such of the regulator’s property, rights and
liabilities as may be specified or described in the direction.
(2) Where
a pre-commencement regulator is required to make a scheme, the scheme must be
made by such date as may be specified in the direction.
(3) Before
making a scheme in pursuance of a direction under subsection (1), a
pre-commencement regulator must consult OFCOM.
(4) A
pre-commencement regulator who makes a scheme in pursuance of a direction under
subsection (1) shall submit that scheme to the Secretary of State for approval.
(5) A
scheme that is required to be so submitted shall have effect only if, and to
the extent that, it is approved by the Secretary of State.
(6) The
Secretary of State, in approving a scheme, may do so subject to such
modifications as he thinks fit.
(7) Where
the Secretary of State approves a scheme subject to modifications specified by
him, it shall have effect with those modifications.
(8) A
scheme approved by the Secretary of State under this section shall come into
force either –
(a) if no time is appointed
under paragraph (b), at the time when the approval is given; or
(b) if the Secretary of State
appoints a later time for the coming into force of the scheme (whether when
approving the scheme or by subsequently varying a time appointed under this
paragraph), at that later time.
(9) Where
a scheme is submitted to the Secretary of State under this section, he
must –
(a) consult OFCOM about any
proposal of his to approve the scheme; and
(b) consult both OFCOM and
the pre-commencement regulator in question about any modifications subject to
which he proposes to give his approval, or about any proposal of his to refuse
approval.
(10) The
Secretary of State may, after consulting OFCOM, himself make a scheme for the
transfer of property, rights and liabilities –
(a) from a pre-commencement
regulator to OFCOM; or
(b) from himself to OFCOM;
and such a scheme shall
come into force on such day as the Secretary of State may appoint (whether in
the scheme or subsequently).
(11) The
Secretary of State is not to make a scheme for the transfer of property, rights
and liabilities from a pre-commencement regulator to OFCOM unless –
(a) that regulator has failed
to comply with a direction under subsection (1); or
(b) that regulator has
complied with such a direction by submitting a scheme to the Secretary of State
that he has decided not to approve (with or without modifications).
(12) Schedule 2
(which makes further provision about schemes under this section) shall have
effect.
31 Transitional functions and abolition of
pre-commencement regulators
(1) It
shall be the duty of the pre-commencement regulators to take all such steps as
are necessary or expedient for ensuring that OFCOM are able effectively to
carry out OFCOM’s functions from the time when they are vested in OFCOM.
(2) The
pre-commencement regulators, in taking those steps, must comply with every
direction given to them by the Secretary of State.
(3) The
pre-commencement regulators and OFCOM shall each have a duty to provide the
Secretary of State with all such information and assistance as he may require
for the purposes of, or in connection with –
(a) his power to give
directions under subsection (1) of section 30; and
(b) his powers and duties in
relation to the approval and making of schemes under that section.
(4) On
such day as the Secretary of State may by order appoint –
(a) * * * * *
(b) the Broadcasting
Standards Commission, the Independent Television Commission and the Radio
Authority shall cease to exist.
(5) * * * * *
(6) Different
days may be appointed under this section *
* * for each of the different
bodies mentioned in [subsection (4)(b)].
PART 2
NETWORKS,
SERVICES AND THE RADIO SPECTRUM
CHAPTER 1
ELECTRONIC
COMMUNICATIONS NETWORKS AND SERVICES
Preliminary
32 Meaning of electronic communications
networks and services
(1) In
this Act “electronic communications network” means –
(a) a transmission system for
the conveyance, by the use of electrical, magnetic or electro-magnetic energy,
of signals of any description; and
(b) such of the following as
are used, by the person providing the system and in association with it, for
the conveyance of the signals –
(i) apparatus comprised in the system;
(ii) apparatus used for the
switching or routing of the signals; and
(iii) software and stored data.
(2) In
this Act “electronic communications service” means a service consisting in, or
having as its principal feature, the conveyance by means of an electronic
communications network of signals, except in so far as it is a content service.
(3) In
this Act “associated facility” means a facility which –
(a) is available for use in
association with the use of an electronic communications network or electronic
communications service (whether or not one provided by the person making the
facility available); and
(b) is so available for the
purpose of –
(i) making the provision of that network or
service possible;
(ii) making possible the
provision of other services provided by means of that network or service; or
(iii) supporting the provision
of such other services.
(4) In
this Act –
(a) references to the
provision of an electronic communications network include references to its
establishment, maintenance or operation;
(b) other person; and
(c) references, where one or
more persons are employed or engaged to make facilities available under the
direction or control of another person, to the person by whom any associated
facilities are made available are confined to references to that other person.
(5) Paragraphs (a)
and (b) of subsection (4) apply in relation to references in subsection (1) to
the provision of a transmission system as they apply in relation to references
in this Act to the provision of an electronic communications network.
(6) The
reference in subsection (1) to a transmission system includes a reference
to a transmission system consisting of no more than a transmitter used for the
conveyance of signals.
(7) In
subsection (2) “a content service” means so much of any service as consists in
one or both of the following –
(a) the provision of material
with a view to its being comprised in signals conveyed by means of an
electronic communications network;
(b) the exercise of editorial
control over the contents of signals conveyed by means of a such a network.
(8) In
this section references to the conveyance of signals include references to the
transmission or routing of signals or of parts of signals and to the
broadcasting of signals for general reception.
(9) For
the purposes of this section the cases in which software and stored data are to
be taken as being used for a particular purpose include cases in which
they –
(a) have been installed or stored
in order to be used for that purpose; and
(b) are available to be so
used.
(10) In
this section “signal” includes –
(a) anything comprising
speech, music, sounds, visual images or communications or data of any
description; and
(b) signals serving for the
impartation of anything between persons, between a person and a thing or
between things, or for the actuation or control of apparatus.
Notification
by providers
* * * * * * *
Administrative
charges imposed on providers
* * * * * * *
Register
of providers required to notify or to pay charges
* * * * * * *
Conditions
of entitlement to provide network or service etc.
* * * * * * *
General
conditions: subject-matter
* * * * * * *
General
conditions: customer interests
* * * * * * *
General
conditions: telephone numbers
* * * * * * *
General
conditions: must-carry obligations
* * * * * * *
Universal
service conditions
* * * * * * *
Access-related
conditions
* * * * * * *
Privileged
supplier conditions
* * * * * * *
SMP
conditions: procedure
* * * * * * *
SMP
services conditions: subject-matter
* * * * * * *
SMP
apparatus conditions: subject-matter
* * * * * * *
Enforcement
of conditions
* * * * * * *
OFCOM’s
duty to intervene on network access issues
* * * * * * *
Electronic
communications code
* * * * * * *
Regulation
of premium rate services
* * * * * * *
Offences
relating to networks and services
* * * * * * *
Persistent
misuse of network or service
* * * * * * *
Powers
to deal with emergencies
* * * * * * *
Restrictions
in leases and licences
* * * * * * *
Information
provisions
* * * * * * *
138 Notification of contravention of information
requirements
(1) Where
OFCOM determine that there are reasonable grounds for believing that a person
is contravening, or has contravened, a requirement imposed under section 135 or
136, they may give that person a notification under this section.
(2) A
notification under this section is one which –
(a) sets out the
determination made by OFCOM;
(b) specifies the requirement
and contravention in respect of which that determination has been made; and
(c) specifies the period
during which the person notified has an opportunity of doing the things
specified in subsection (3).
(3) Those
things are –
(a) making representations
about the matters notified; and
(b) complying with any
notified requirement of which he remains in contravention.
(4) Subject
to subsections (5) to (7),
the period for doing those things must be the period of one month beginning
with the day after the one on which the notification was given.
(5) OFCOM
may, if they think fit, allow a longer period for doing those things either –
(a) by specifying a longer
period in the notification; or
(b) by subsequently, on one
or more occasions, extending the specified period.
(6) The
person notified shall have a shorter period for doing those things if a shorter
period is agreed between OFCOM and the person notified.
(7) The
person notified shall also have a shorter period if –
(a) OFCOM have reasonable
grounds for believing that the contravention is a repeated contravention;
(b) they have determined
that, in those circumstances, a shorter period would be appropriate; and
(c) the shorter period has
been specified in the notification.
(8) A
notification under this section –
(a) may be given in respect
of more than one contravention; and
(b) if it is given in respect
of a continuing contravention, may be given in respect of any period during
which the contravention has continued.
(9) Where
a notification under this section has been given to a person in respect of a
contravention of a requirement, OFCOM may give a further notification in respect
of the same contravention of that requirement if, and only if –
(a) the contravention is one
occurring after the time of the giving of the earlier notification;
(b) the contravention is a
continuing contravention and the subsequent notification is in respect of so
much of a period as falls after a period to which the earlier notification
relates; or
(c) the earlier notification
has been withdrawn without a penalty having been imposed in respect of the
notified contravention.
(10) For
the purposes of this section a contravention is a repeated contravention, in
relation to a notification with respect to that contravention, if –
(a) a previous notification
under this section has been given in respect of the same contravention or in
respect of another contravention of the same requirement; and
(b) the subsequent
notification is given no more than twelve months after the day of the making by
OFCOM of a determination for the purposes of section 139(2) that the
contravention to which the previous notification related did occur.
139 Penalties for contravention of information
requirements
(1) This
section applies where –
(a) a person (“the notified
person”) has been given a notification under section 138;
(b) OFCOM have allowed the
notified person an opportunity of making representations about the matters
notified; and
(c) the period allowed for
the making of the representations has expired.
(2) OFCOM
may impose a penalty on the notified person if –
(a) they are satisfied that
he has, in one or more of the respects notified, been in contravention of the
requirement notified under section 138;
(b) he has not, during the
period allowed under that section, complied with the notified requirement; and
(c) no proceedings for an
offence under section 144 have been brought against the notified person in
respect of the contravention.
(3) Where
a notification under section 138 relates to more than one contravention, a
separate penalty may be imposed in respect of each contravention.
(4) Where
such a notification relates to a continuing contravention, no more than one
penalty may be imposed in respect of the period of contravention specified in
the notification.
(5) The
amount of a penalty imposed under this section is to be such amount not
exceeding £50,000 as OFCOM determine to be both –
(a) appropriate; and
(b) proportionate to the
contravention in respect of which it is imposed.
(6) In
making that determination OFCOM must have regard to –
(a) any representations made
to them by the notified person; and
(b) any steps taken by him
towards complying with the requirements contraventions of which have been
notified to him under section 138.
(7) Where
OFCOM impose a penalty on a person under this section, they shall –
(a) within one week of making
their decision to impose the penalty, notify that person of that decision and
of their reasons for that decision; and
(b) in that notification, fix
a reasonable period after it is given as the period within which the penalty is
to be paid.
(8) A
penalty imposed under this section –
(a) must be paid to OFCOM;
and
(b) if not paid within the
period fixed by them, is to be recoverable by them accordingly.
(9) The
Secretary of State may by order amend this section so as to substitute a
different maximum penalty for the maximum penalty for the time being specified
in subsection (5).
(10) * * * * *
140 Suspending service provision for information
contraventions
(1) OFCOM
may give a direction under this section to a person who is a communications
provider or who makes associated facilities available (“the contravening
provider”) if they are satisfied –
(a) that he is or has been in
serious and repeated contravention of requirements imposed under sections 135
and 136, or either of them;
(b) the requirements are not
requirements imposed for purposes connected with the carrying out of OFCOM’s
functions in relation to SMP apparatus conditions;
(c) that an attempt, by the
imposition of penalties under section 139 or the bringing of proceedings for an
offence under section 144, to secure compliance with the contravened
requirements has failed; and
(d) that the giving of the
direction is appropriate and proportionate to the seriousness (when repeated as
they have been) of the contraventions.
(2) A
direction under this section is –
(a) a direction that the
entitlement of the contravening provider to provide electronic communications
networks or electronic communications services, or to make associated
facilities available, is suspended (either generally or in relation to
particular networks, services or facilities); or
(b) a direction that that
entitlement is restricted in the respects set out in the direction.
(3) A
direction under this section –
(a) must specify the
networks, services and facilities to which it relates; and
(b) except so far as it
otherwise provides, takes effect for an indefinite period beginning with the
time at which it is notified to the person to whom it is given.
(4) A
direction under this section –
(a) in providing for the
effect of a suspension or restriction to be postponed, may provide for it to
take effect only at a time determined by or in accordance with the terms of the
direction; and
(b) in connection with the
suspension or restriction contained in the direction or with the postponement
of its effect, may impose such conditions on the contravening provider as
appear to OFCOM to be appropriate for the purpose of protecting that provider’s
customers.
(5) Those
conditions may include a condition requiring the making of payments –
(a) by way of compensation
for loss or damage suffered by the contravening provider’s customers as a
result of the direction; or
(b) in respect of annoyance,
inconvenience or anxiety to which they have been put in consequence of the
direction.
(6) If
OFCOM consider it appropriate to do so (whether or not in consequence of any
representations or proposals made to them), they may revoke a direction under
this section or modify its conditions –
(a) with effect from such
time as they may direct;
(b) subject to compliance
with such requirements as they may specify; and
(c) to such extent and in
relation to such networks, services or facilities, or parts of a network,
service or facility, as they may determine.
(7) For
the purposes of this section there are repeated contraventions by a person of
requirements imposed under sections 135 and 136, or either of them, to the
extent that –
(a) in the case of a previous
notification given to that person under section 138, OFCOM have determined
for the purposes of section 139(2) that such a contravention did occur;
and
(b) in the period of twelve
months following the day of the making of that determination, one or more
further notifications have been given to that person in respect of
contraventions of such requirements;
and for the purposes of
this subsection it shall be immaterial whether the notifications related to the
same contravention or to different contraventions of the same or different
requirements or of requirements under different sections.
141 Suspending apparatus supply for information
contraventions
(1) OFCOM
may give a direction under this section to a person who supplies electronic
communications apparatus (“the contravening supplier”) if they are
satisfied –
(a) that he is or has been in
serious and repeated contravention of requirements imposed under section 135;
(b) that an attempt, by the
imposition of penalties under section 139 or the bringing of proceedings for an
offence under section 144, to secure compliance with the contravened
requirements has failed; and
(c) that the giving of the
direction is appropriate and proportionate to the seriousness (when repeated as
they have been) of the contraventions.
(2) A
direction under this section is –
(a) a direction to the
contravening supplier to cease to act as a supplier of electronic
communications apparatus (either generally or in relation to apparatus of a
particular description); or
(b) a direction imposing such
restrictions as may be set out in the direction on the supply by that supplier
of electronic communications apparatus (either generally or in relation to
apparatus of a particular description).
(3) A
direction under this section takes effect, except so far as it otherwise
provides, for an indefinite period beginning with the time at which it is
notified to the person to whom it is given.
(4) A
direction under this section –
(a) may provide for a
prohibition or restriction to take effect only at a time determined by or in
accordance with the terms of the direction; and
(b) in connection with a
prohibition or restriction contained in the direction or with the postponement
of its effect, may impose such conditions on the contravening supplier as
appear to OFCOM to be appropriate for the purpose of protecting that supplier’s
customers.
(5) Those
conditions may include a condition requiring the making of payments –
(a) by way of compensation
for loss or damage suffered by the contravening supplier’s customers as a
result of the direction; or
(b) in respect of annoyance,
inconvenience or anxiety to which they have been put in consequence of the
direction.
(6) If
OFCOM consider it appropriate to do so (whether or not in consequence of
representations or proposals made to them), they may revoke a direction under
this section or modify its conditions –
(a) with effect from such
time as they may direct;
(b) subject to compliance
with such requirements as they may specify; and
(c) to such extent and in
relation to such apparatus or descriptions of apparatus as they may determine.
(7) For
the purposes of this section contraventions by a person of requirements imposed
under section 135 are repeated contraventions if –
(a) in the case of a previous
notification given to that person under section 138, OFCOM have determined
for the purposes of section 139(2) that such a contravention did occur;
and
(b) in the period of twelve
months following the day of the making of that determination, one or more
further notifications have been given to that person in respect of contraventions
of such requirements;
and for the purposes of
this subsection it shall be immaterial whether the notifications related to the
same contravention or to different contraventions of the same or different
requirements.
142 Procedure for directions under ss. 140 and
141
(1) Except
in an urgent case, OFCOM are not to give a direction under section 140 or 141
unless they have –
(a) notified the contravening
provider or contravening supplier of the proposed direction and of the
conditions (if any) which they are proposing to impose by that direction;
(b) provided him with an
opportunity of making representations about the proposals and of proposing
steps for remedying the situation; and
(c) considered every
representation and proposal made to them during the period allowed by them for
the contravening provider or the contravening supplier to take advantage of
that opportunity.
(2) That
period must be one ending not less than one month after the day of the giving
of the notification.
(3) As
soon as practicable after giving a direction under section 140 or 141 in an
urgent case, OFCOM must provide the contravening provider or contravening
supplier with an opportunity of –
(a) making representations
about the effect of the direction and of any of its conditions; and
(b) proposing steps for
remedying the situation.
(4) A
case is an urgent case for the purposes of this section if OFCOM –
(a) consider that it would be
inappropriate, because the contraventions in question fall within subsection
(5), to allow time, before giving a direction under section 140 or 141, for the
making and consideration of representations; and
(b) decide for that reason to
act in accordance with subsection (3), instead of subsection (1).
(5) The
contraventions fall within this subsection if they have resulted in, or create
an immediate risk of –
(a) a serious threat to the
safety of the public, to public health or to national security;
(b) serious economic or
operational problems for persons (apart from the contravening provider or
contravening supplier) who are communications providers or persons who make
associated facilities available; or
(c) serious economic or
operational problems for persons who make use of electronic communications
networks, electronic communications services or associated facilities.
(6) In
this section –
“contravening provider”
has the same meaning as in section 140; and
“contravening supplier”
has the same meaning as in section 141.
143 Enforcement of directions under ss. 140 and
141
(1) A
person is guilty of an offence if he provides an electronic communications
network or electronic communications service, or makes available any associated
facility –
(a) while his entitlement to
do so is suspended by a direction under section 140; or
(b) in contravention of a
restriction contained in such a direction.
(2) A
person is guilty of an offence if he supplies electronic communications
apparatus –
(a) while prohibited from
doing so by a direction under section 141; or
(b) in contravention of a
restriction contained in such a direction.
(3) A
person guilty of an offence under this section shall be [liable to a
fine] –
(a) * * * * *
(b) * * * * *
(4) Sections
94 to 99 apply in relation to a contravention of conditions imposed by a
direction under section 140 or 141 as they apply in relation to a contravention
of conditions set under section 45.
144 Offences in connection with information
requirements
(1) A
person who fails to provide information in accordance with a requirement of
OFCOM under section 135 or 136 is guilty of an offence and shall be [liable to
a fine] –
(a) * * * * *
(b) * * * * *
(2) In
proceedings against a person for an offence under subsection (1) it shall be
a defence for that person to show –
(a) that it was not
reasonably practicable for him to comply with the requirement within the period
specified by OFCOM; but
(b) that he has taken all
reasonable steps to provide the required information after the end of that
period.
(3) A
person is guilty of an offence if –
(a) in pursuance of any
requirement under section 135 or 136, he provides any information that is false
in any material particular; and
(b) at the time he provides
it, he either knows it to be false or is reckless as to whether or not it is
false.
(4) A
person guilty of an offence under subsection (3) shall be [liable to a fine or
to imprisonment for two years, or to both].
(5) Proceedings
for an offence under subsection (1) may be brought in respect of a
contravention by a person of a requirement imposed under section 135 or 136
only if –
(a) OFCOM have given the
person a notification under section 138 in respect of that contravention;
(b) the period allowed under
that section for doing the things mentioned in subsection (3) of that section
has expired without the required information having been provided; and
(c) OFCOM have not imposed a
financial penalty under section 139 in respect of that contravention.
145 Statement of policy on information gathering
* *
*
*
*
*
*
146 Provision of information by OFCOM
* * * * * * *
Abolition
of telecommunications licensing etc.
* * * * * * *
Local
authority powers in relation to networks and services
* * * * * * *
Grants
for networks and services in Northern
Ireland
* * * * * * *
Interpretation
of Chapter 1
* * * * * * *
CHAPTER 2
SPECTRUM
USE
General
functions relating to spectrum use
152 General functions of OFCOM in relation to
radio spectrum
(1) It
shall be a function of OFCOM –
(a) to give such advice in
relation to the use of the electro-magnetic spectrum for wireless telegraphy,
(b) to provide such other
services, and
(c) to maintain such records,
as they consider
appropriate for the purpose of facilitating or managing the use of that
spectrum for wireless telegraphy.
(2) It
shall be a function of OFCOM, in relation to the use of the electro-magnetic
spectrum for wireless telegraphy –
(a) to give such further
advice,
(b) to provide such other
services, and
(c) to maintain such other
records,
as the Secretary of State
may, for the purpose of securing compliance with the international obligations
of the United Kingdom [on behalf of the Bailiwick of Jersey], require them to
provide.
(3) The
advice, the other services and the records that OFCOM may give, provide or
maintain under this section include advice, other services and records with
respect to the use of the electro-magnetic spectrum at places outside the United Kingdom
[and the Bailiwick of Jersey].
(4) The
powers of OFCOM to carry out research, or to arrange for others to carry out
research, are to be exercisable, in particular, for ascertaining, for the
purpose of carrying out their functions under this section, information
about –
(a) the demands for use of
the electro-magnetic spectrum for wireless telegraphy in the United Kingdom [and the Bailiwick
of Jersey];
(b) the effects, in the United Kingdom
[and the Bailiwick of Jersey], of any such use of that spectrum;
(c) likely future
developments in relation to those matters; and
(d) any other connected
matters that OFCOM think relevant.
(5) OFCOM
may make a grant to any person if, in their opinion, the making of the grant is
likely to promote –
(a) the efficient use in the United Kingdom
[and the Bailiwick of Jersey] of the electro-magnetic spectrum for wireless
telegraphy; or
(b) the efficient management
of that use.
(6) A
grant –
(a) may be made to a person
holding a wireless telegraphy licence or a grant of recognised spectrum access
under section 159 or to any other person; and
(b) is to be made on such
terms and conditions as OFCOM consider appropriate;
and those terms and
conditions may include terms requiring the repayment of the grant in specified
circumstances.
(7) The
consent of the Treasury is to be required –
(a) for the making of a grant
under subsection (5); and
(b) for the terms and
conditions on which such a grant is made.
(8) Where
OFCOM are required to give advice or provide another service to a person under
this section, they are to be entitled to make the giving of the advice or the
provision of the other service conditional on the payment to them of such
sums –
(a) as they may determine in
advance; or
(b) as may be agreed between
them and that person.
(9) In
this section references to providing a service to a person include references
to a service consisting in –
(a) the entry of that
person’s particulars in a register or other record kept by OFCOM for the purpose
of carrying out their functions under this section; or
(b) the taking of steps for
the purposes of determining whether to grant an application for an entry in a
register or record so kept.
153 United
Kingdom Plan for Frequency Authorisation
* * * * * * *
154 Duties of OFCOM when carrying out spectrum
functions
(1) It
shall be the duty of OFCOM, in carrying out their functions under the enactments
relating to the management of the radio spectrum, to have regard, in
particular, to –
(a) the extent to which the
electro-magnetic spectrum is available for use, or further use, for wireless
telegraphy;
(b) the demand for use of
that spectrum for wireless telegraphy; and
(c) the demand that is likely
to arise in future for the use of that spectrum for wireless telegraphy.
(2) It
shall also be their duty, in carrying out their functions under those
enactments to have regard, in particular, to the desirability of
promoting –
(a) the efficient management
and use of the part of the electro-magnetic spectrum available for wireless
telegraphy;
(b) the economic and other
benefits that may arise from the use of wireless telegraphy;
(c) the development of
innovative services; and
(d) competition in the
provision of electronic communications services.
(3) In
the application of this section to the functions of OFCOM under the enactments
relating to the management of the radio spectrum other than section 2 of the Wireless Telegraphy Act 1998
(c. 6) exercise of power to prescribe wireless telegraphy licence fees),
OFCOM may disregard such of the matters mentioned in the preceding subsections
as appear to them –
(a) to be matters to which
they are not required to have regard apart from this section; and
(b) to have no application to
the case in question.
(4) Where
it appears to OFCOM that any of their duties under this section conflict with
one or more of their duties under sections 3 to 6, priority must be given to
their duties under those sections.
(5) Where
it appears to OFCOM that any of their duties under this section conflict with
each other in a particular case, they must secure that the conflict is resolved
in the manner they think best in the circumstances.
155 Advisory service in relation to interference
(1) It
shall be a function of OFCOM to provide a service consisting in the giving of
advice and assistance to persons complaining of interference with wireless
telegraphy.
(2) In
this section “interference”, in relation to wireless telegraphy, has the same
meaning as in the Wireless
Telegraphy Act 1949 (c. 54).
156 Directions with respect to the radio
spectrum
(1) The
Secretary of State may by order give general or specific directions to OFCOM
about the carrying out by OFCOM of their functions under the enactments
relating to the management of the radio spectrum.
(2) The
directions that may be given under this section include a direction requiring
OFCOM to secure that such frequencies of the electro-magnetic spectrum as may
be specified in the direction are kept available or become available –
(a) for such uses or
descriptions of uses, or
(b) for such users or
descriptions of users,
as may be so specified.
(3) The
directions that may be given under this section include a direction requiring
OFCOM to exercise their powers under the provisions mentioned in subsection
(4) –
(a) in such cases,
(b) in such manner,
(c) subject to such
restrictions and constraints, and
(d) with a view to achieving
such purposes,
as may be specified in the
direction or as may be determined by the Secretary of State in accordance with
the order.
(4) Those
provisions are –
(a) the proviso to section 1
of the Wireless
Telegraphy Act 1949 (exemptions from requirement
of wireless telegraphy licence); and
(b) sections 1 to 3A of the Wireless Telegraphy Act
1998 (c. 6) (payments in respect of
wireless telegraphy licences and grants of recognised spectrum access).
(5) This
section is not to be construed as restricting the power of the Secretary of
State under section 5, without the making of an order, to give a direction for
any of the purposes for the time being specified in subsection (3) of that
section.
[(6) Before making an Order under this section which relates to the
management of the radio spectrum in respect of the Bailiwick of Jersey, the
Secretary of State shall consult the appropriate authorities of the Bailiwick
of Jersey.]
157 Procedure for directions under s. 156
(1) An
order containing a direction under section 156, if it is not one falling within
subsection (2) or (3) f that section, must state the purpose for which the
direction is given.
(2) Before
making an order containing a direction under section 156, the Secretary of
State must consult both –
(a) OFCOM; and
(b) such other persons as he
thinks fit.
(3) Subsection
(2) does not apply where the Secretary of State considers that the urgency of
the case makes it inexpedient to carry out the consultation before making the
order.
(4) * * * * *
(5) * * * * *
(6) * * * * *
(7) * * * * *
Reservation
of spectrum for multiplex use
158 Special duty in relation to television
multiplexes
(1) This
section applies where OFCOM, in exercise of their functions under the
enactments relating to the management of the radio spectrum, have reserved
frequencies for the broadcasting of television programmes.
(2) It
shall be the duty of OFCOM, in the carrying out of their functions under those
enactments, to exercise their powers so as to secure, so far as practicable,
that the requirement of subsection (3) is satisfied.
(3) That
requirement is that sufficient capacity is made available on the reserved
frequencies for ensuring, in the case of every licensed television multiplex
service, that the qualifying services are broadcast by means of that multiplex
service.
(4) In
subsection (3) “licensed television multiplex service” means a television
multiplex service the provision of which is authorised by a licence under Part 1
of the 1996 Act.
(5) In
this section “qualifying service” and “television multiplex service” each has
the same meaning as in Part 3 of this Act.
Recognised
spectrum access
159 Grant of recognised spectrum access
(1) This
section applies where –
(a) a person is proposing to
use or to continue to use a station or apparatus for wireless telegraphy;
(b) the circumstances of the
use are circumstances specified for the purposes of this section in regulations
made by OFCOM;
(c) that use does not require
a wireless telegraphy licence but will involve the emission of electro-magnetic
energy with a view to the reception of anything at places in the United Kingdom
[and the Bailiwick of Jersey] or in the territorial waters adjacent to the United
Kingdom [and the Bailiwick of Jersey];
and for the purposes of
this section it is immaterial whether the emissions are from a place within the
United Kingdom
[and the Bailiwick of Jersey]or from a place outside the United Kingdom [and the Bailiwick of
Jersey].
(2) On
an application by that person, OFCOM may make a grant of recognised spectrum
access in respect of any use by him of anything for wireless telegraphy that is
specified in the grant.
(3) A
grant of recognised spectrum access made to a person shall set out, by
reference to such factors as OFCOM think fit (including, so far as they think
fit, frequencies, times and places of reception and strength and type of
signal), the respects in which the use of anything by that person for wireless
telegraphy is recognised by the grant.
(4) A
grant of recognised spectrum access to a person is made by giving him a
notification containing the grant.
(5) A
grant of recognised spectrum access may be made subject to such restrictions
and conditions as OFCOM think fit, including, in particular, restrictions or
conditions as to strength or type of signal, as to times of use and as to the
sharing of frequencies.
(6) The
restrictions and conditions of a grant of recognised spectrum access made to a
person must not duplicate obligations already imposed on him by general
conditions set under section 45.
(7) Where
a grant of recognised spectrum access is made subject to restrictions and
conditions, the restrictions and conditions must be set out in the notification
by which the grant is made.
(8) Schedule 5
(which makes provision about the grant, revocation and modification of
recognised spectrum access) shall have effect.
(9) Section
403 applies to the power of OFCOM to make regulations under subsection (1).
(10) Expressions
used in this section and in the Wireless
Telegraphy Act 1949 (c. 54) have the same meanings in this section
as in that Act.
160 Effect of grant of recognised spectrum
access
(1) This
section applies to the following functions of OFCOM –
(a) their functions under
section 1 of the Wireless Telegraphy Act 1949
(c. 54) (licensing of the use of the radio spectrum) with respect to the
granting of wireless telegraphy licences;
(b) their functions under
section 159 of this Act with respect to the making of grants of recognised
spectrum access; and
(c) any of their other
functions under the enactments relating to the management of the radio spectrum
in the carrying out of which it is appropriate for them to have regard
to –
(i) whether wireless telegraphy licences are
in force; or
(ii) the terms, provisions or
limitations of wireless telegraphy licences that are for the time being in
force.
(2) In
carrying out the functions to which this section applies it shall be the duty
of OFCOM to take into account –
(a) the existence of any
grant of recognised spectrum access that is for the time being in force, and
(b) the provisions imposing
the restrictions and conditions subject to which the grant has effect,
to the same extent as they
would take into account a wireless telegraphy licence with terms, provisions or
limitations making equivalent provision.
161 Charges in respect of grants of recognised
spectrum access
(1) The
Wireless Telegraphy Act 1998
(c. 6) (which makes provision about the sums that may be charged in
respect of the issue and renewal of wireless telegraphy licences etc.) shall be
amended as follows.
(2) In
section 1 (charges for wireless telegraphy licences) –
(a) in subsection (1), after
“this Act” there shall be inserted –
“(a) references to a grant of
recognised spectrum access are references to a grant made under section 159
of the Communications
Act 2003 (recognised spectrum access); and
(b)”;
(b) in subsection (2), for the words from “or renewal”, where they
first occur, to “is issued” there shall be substituted “of a wireless
telegraphy licence or the making of a grant of recognised spectrum access and,
where regulations under this section so provide, subsequently at such times
during the term of the licence or grant and such times in respect of its
variation, modification or revocation, as may be prescribed by the regulations,
there shall be paid to OFCOM by the person to whom the licence is issued or the
grant made”; and
(c) in subsection (4), for
the words from “or renewal”, where they first occur, to “the licence” there
shall be substituted “of a licence or the making of a grant of recognised
spectrum access, OFCOM may, on the issue of the licence or the making of the
grant,”.
(3) After
section 3 of that Act there shall be inserted the following section –
“3A Bidding for grants of
recognised spectrum access
(1) Having regard to the desirability of
promoting the optimal use of the electro-magnetic spectrum, OFCOM may by
regulations provide that, in such cases as may be specified in the regulations,
applications for grants of recognised spectrum access must be made in
accordance with a procedure which involves the making by the applicant of a bid
specifying an amount which he is willing to pay to OFCOM in respect of the
grant.
(2) Regulations under this section may make
provision with respect to the grants to which they apply and the restrictions
and conditions subject to which such grants are made.
(3) The regulations may, in particular –
(a) require the applicant’s
bid to specify the amount which he is willing to pay;
(b) require that amount to
be expressed –
(i) as a cash sum;
(ii) as a sum determined by reference to a
variable (such as income attributable wholly or in part to the use of wireless
telegraphy to which the grant relates);
(iii) as a combination of the two; or
(iv) (at the applicant’s choice) in any one of
the ways falling within the preceding sub-paragraphs that is authorised by the
regulations;
(c) require that amount to
be expressed in terms of –
(i) the making of a single payment;
(ii) the making of periodic payments;
(iii) a combination of the two; or
(iv) (at the applicant’s choice) in any one of
the ways falling within the preceding sub-paragraphs that is authorised by the
regulations;
(d) specify requirements
(such as, for example, technical or financial requirements, requirements
relating to the use of wireless telegraphy to which the grant relates and
requirements intended to restrict the holding of two or more grants of
recognised spectrum access by any one person) which must be met by applicants
for a grant;
(e) require any such
applicant to pay a deposit to OFCOM;
(f) specify circumstances
in which such a deposit is, or is not, to be refundable;
(g) specify matters to be
taken into account by OFCOM (in addition to the bids made in accordance with
the prescribed procedure) in deciding whether, or to whom, to make a grant of
recognised spectrum access;
(h) specify the other
restrictions and conditions subject to which a grant to which the regulations
apply is to be made; and
(i) make any provision
referred to in section 1(3).
(4) Regulations under this section are not to
be construed as binding OFCOM to make a grant on the completion of the
procedure provided for in the regulations except in such circumstances as may
be provided for in the regulations.
(5) A grant of recognised spectrum access made
in accordance with regulations under this section shall specify either –
(a) the sum or sums which
in consequence of the bids made are, in accordance with the regulations, to be
payable in respect of the grant; or
(b) the method for
determining that sum or those sums;
and that sum or those sums shall be paid to OFCOM by the person to
whom the grant is made in accordance with the conditions of the grant.
(6) In determining the sum or sums payable in
respect of a grant, regard may be had to bids made for other grants of
recognised spectrum access and for wireless telegraphy licences.
(7) Regulations under this section may provide
that where a person –
(a) makes an application
for a grant of recognised spectrum access in accordance with a procedure
provided for by such regulations, but
(b) subsequently refuses
the grant applied for,
that person shall make such payments to OFCOM as may be determined
in accordance with the regulations by reference to bids made for the grant.
(8) Subsection (4) of section 1 is to apply in
relation to sums that will or may become payable under regulations under this
section subsequently to the making of a grant of recognised spectrum access as
it applies to sums that will or may become payable under regulations under that
section.”
162 Conversion into and from wireless telegraphy
licences
(1) OFCOM
may by regulations make provision for –
(a) the conversion, on the
application of the licence holder, of a wireless telegraphy licence into a
grant of recognised spectrum access; and
(b) the conversion, on the
application of the holder of the grant, of a grant of recognised spectrum
access into a wireless telegraphy licence.
(2) Section
403 applies to the power of OFCOM to make regulations under this section.
Crown
use of the radio spectrum
163 Payments for use of radio spectrum by the
Crown
(1) The
Secretary of State may, out of money provided by Parliament, make payments to
OFCOM of such amounts as he considers appropriate in respect of –
(a) the establishment and use
by or on behalf of the Crown, of a station for wireless telegraphy;
(b) the installation and use
by or on behalf of the Crown, of apparatus for wireless telegraphy;
(c) any grant of recognised
spectrum access made to the Crown.
(2) The
payments made under this section shall be made at such times and, so far as
made in relation to use, in relation to such periods as the Secretary of State
considers appropriate.
(3) Expressions
used in this section and in the Wireless
Telegraphy Act 1949 (c. 54) have the same meanings in this section
as in that Act.
Limitations
and exemptions applied to spectrum use
164 Limitations on authorised spectrum use
(1) If
they consider it appropriate, for the purpose of securing the efficient use of
the electro-magnetic spectrum, to impose limitations on the use of particular
frequencies, OFCOM must make an order imposing the limitations.
(2) An
order under this section may do one or both of the following –
(a) specify frequencies for
the use of which OFCOM will grant or make only a limited number of wireless
telegraphy licences and grants of recognised spectrum access; or
(b) specify uses for which,
on specified frequencies, OFCOM will grant or make only a limited number of wireless
telegraphy licences and grants of recognised spectrum access.
(3) Where
OFCOM make an order under this section, it must set out the criteria which
OFCOM will apply in determining in accordance with the order –
(a) the limit on the number
of wireless telegraphy licences and grants of recognised spectrum access to be
granted or made for the specified frequencies or uses;
(b) the persons to whom
licences will be granted or grants of spectrum access made.
(4) OFCOM
must satisfy themselves that any criteria set out by virtue of subsection (3)
are –
(a) objectively justifiable
in relation to the frequencies or uses to which they relate;
(b) not such as to
discriminate unduly against particular persons or against a particular
description of persons;
(c) proportionate to what
they are intended to achieve; and
(d) in relation to what they
are intended to achieve, transparent.
(5) It
shall be the duty of OFCOM to exercise the following powers in accordance with
the orders for the time being in force under this section –
(a) their powers under the Wireless Telegraphy Act
1949 and the Wireless Telegraphy Act
1998 (c. 6) with respect to wireless
telegraphy licences; and
(b) their powers under the Wireless Telegraphy Act
1998 and this Chapter with respect to grants of
recognised spectrum access.
(6) OFCOM
must keep under review any order for the time being in force under this
section.
(7) It
shall be the duty of OFCOM to make an order revoking or amending the provisions
of an order under this section if, on reviewing it, they consider it necessary
to do so for the purpose of securing the efficient use of the electro-magnetic
spectrum.
(8) An
order under this section may make provision by reference to determinations
which –
(a) are made from time to
time by OFCOM in accordance with the provisions of such an order; and
(b) are published by them
from time to time in such manner as may be provided for in such an order.
(9) Section
403 applies to the power of OFCOM to make an order under this section.
165 Terms etc. of wireless telegraphy licences
In section 1 of the Wireless Telegraphy Act
1949 (c. 54), after subsection (2) (terms,
provisions and limitations of the licence) there shall be inserted –
“(2A) Those terms, provisions and limitations may
also include, in particular –
(a) terms, provisions and
limitations as to strength or type of signal, as to times of use and as to the
sharing of frequencies;
(b) terms, provisions or
limitations imposing prohibitions on the transmission or broadcasting of
particular matters by the holder of the licence; and
(c) terms or provisions
requiring the transmission or broadcasting of particular matters by that
person.
(2B) A licence under this section may be granted
either –
(a) in relation to a particular
station or particular apparatus; or
(b) in relation to any
station or apparatus falling within a description specified in the licence;
and such a description may be expressed by reference to such factors
(including factors confined to the manner in which it is established, installed
or used) as OFCOM think fit.
(2C) The terms, provisions and limitations of a
licence granted under this section to a person must not duplicate obligations
already imposed on him by general conditions set under section 45 of the Communications Act 2003.”
166 Exemption from need for wireless telegraphy
licence
After section 1 of the Wireless Telegraphy Act
1949 there shall be inserted –
“1AA Exemption from need for
wireless telegraphy licence
(1) If OFCOM are satisfied that the condition
in subsection (2) is satisfied as respects the use of stations or apparatus of
any particular description, they shall make regulations under section 1 of this
Act exempting the establishment, installation and use of any station or apparatus
of that description from the prohibition in that section.
(2) That condition is that the use of stations
or apparatus of that description is not likely to involve any undue
interference with wireless telegraphy.”
Award
and transfer of licences
167 Bidding for wireless telegraphy licences
(1) Section 3
of the Wireless Telegraphy Act 1998
(c. 6) (bidding for wireless telegraphy licences) shall be amended as
follows.
(2) The
following shall cease to have effect –
(a) in subsection (1),
the words “or determined by him under” and paragraph (a) (requirement to
set out procedure for bidding in a notice issued under regulations); and
(b) subsection (2) (matters
to be included in regulations).
(3) In
subsection (3) (provision that may be contained in regulations) –
(a) for paragraph (a)
there shall be substituted –
“(a) require the applicant’s
bid to specify the amount he is willing to pay;
(aa) require that amount to
be expressed –
(i) as a cash sum;
(ii) as a sum determined by reference to a
variable (such as income attributable wholly or in part to the holding of the
licence);
(iii) as a combination of the two; or
(iv) (at the applicant’s choice) in any one of
the ways falling within the preceding sub-paragraphs that is authorised by the
regulations;
(ab) require that amount to
be expressed in terms of –
(i) the making of a single payment;
(ii) the making of periodic payments;
(iii) a combination of the two; or
(iv) (at the applicant’s choice) in any one of
the ways falling within the preceding sub-paragraphs that is authorised by the
regulations;”
(b) in paragraph (f),
for “any licence” there shall be substituted “a licence to which the
regulations apply”; and
(c) the word “and” shall be inserted
at the end of paragraph (f) and paragraph (h) shall cease to have effect.
(4) For
subsection (4) (notice not to create binding obligation to grant licence)
there shall be substituted –
“(4) Regulations under this section are not to be
construed as binding OFCOM to grant a licence on the completion of the
procedure provided for in the regulations except in such circumstances as may
be provided for in the regulations.”
(5) For
subsection (5) (licence to specify the amount payable in accordance with
the applicant’s bid) there shall be substituted –
“(5) A wireless telegraphy licence granted in
accordance with regulations under this section shall specify either –
(a) the sum or sums which
in consequence of the bids made are, in accordance with the regulations, to be
payable in respect of the licence; or
(b) the method for determining
that sum or those sums;
and that sum or those sums shall be paid to OFCOM by the person to
whom the licence is granted in accordance with the terms of the licence.”
(6) For
subsection (6) there shall be substituted –
“(5A) In determining the sum or sums payable in
respect of a wireless telegraphy licence, regard may be had to bids made for
other wireless telegraphy licences and for grants of recognised spectrum
access.
(5B) Regulations under this section may provide
that where a person –
(a) makes an application
for a licence in accordance with a procedure provided for by such regulations,
but
(b) subsequently refuses
the licence applied for,
that person shall make such payments to OFCOM as may be determined
in accordance with the regulations by reference to bids made for the licence.
(6) Subsection (4) of section 1 is to apply in
relation to sums that will or may become payable under regulations under this
section subsequently to the grant of a wireless telegraphy licence as it
applies to sums that will or may become payable under regulations under that
section.”
168 Spectrum trading
* * * * * * *
Variation
and revocation of licences
169 Variation and revocation of wireless
telegraphy licences
(1) [After
section 1D of the Wireless
Telegraphy Act 1949 (c. 54) there shall be inserted the following
section] –
“1E Variation or revocation
of a licence
(1) Where OFCOM propose to vary or revoke a
wireless telegraphy licence, they shall give the person holding the licence a
notification under this subsection –
(a) stating the reasons for
the proposed variation or revocation; and
(b) specifying the period
during which the person notified has an opportunity to do the things specified
in subsection (2).
(a) making representations
about the proposal; and
(b) if the proposal is the
result of a contravention of a term, provision or limitation of the licence,
complying with that term, provision or limitation.
(3) Subject to subsections (4) to (6), the period for doing those things
must be the period of one month beginning with the day after the one on which
the notification was given.
(4) OFCOM may, if they think fit, allow a
longer period for doing those things either –
(a) by specifying a longer
period in the notification; or
(b) by subsequently, on one
or more occasions, extending the specified period.
(5) The person notified shall have a shorter
period for doing those things if a shorter period is agreed between OFCOM and
the person notified.
(6) The person notified shall also have a
shorter period if –
(a) OFCOM have reasonable
grounds for believing that the case is a case of serious and repeated
contravention or an urgent case;
(b) they have determined
that, in the circumstances, a shorter period would be appropriate; and
(c) the shorter period has
been specified in the notification.
(7) A case is an urgent case if the failure to
vary or revoke the licence will result in, or create an immediate risk
of –
(a) a serious threat to the
safety of the public, to public health or to national security; or
(b) serious economic or
operational problems for persons, other than the person in contravention,
who –
(i) use stations or apparatus for wireless
telegraphy; or
(ii) are communications providers or make
associated facilities available.
(8) Subsection (1) does not apply to a proposal
to vary or revoke a licence if the proposal is made at the request or with the
consent of the licence holder.
(9) For the purposes of this section a
contravention of a term, provision or limitation of a licence is a repeated
contravention, in relation to a proposal to vary or revoke a licence, if it
falls within subsection (10).
(10) A contravention falls within this subsection
if –
(a) a previous notification
under subsection (1) has been given in respect of the same contravention
or in respect of another contravention of a term, provision or limitation of
the same licence; and
(b) the subsequent
notification under that subsection is given no more than twelve months after
the day of the making by OFCOM of a determination for the purposes of
subsection (11) that the contravention to which the previous notification
related did occur.
(11) Where OFCOM have given a notification under
subsection (1), they shall, within the period of one month beginning with
the end of the period for the making of representations about the proposal
contained in that notification –
(a) decide whether or not
to vary or revoke the licence in accordance with their proposal, or in
accordance with that proposal but with modifications; and
(b) give the person holding
the licence a notification of their decision.
(12) The notification under subsection (11) –
(a) must be given no more
than one week after the making of the decision to which it relates; and
(b) must, in accordance
with that decision, either vary or revoke the licence or withdraw the proposal
for a variation or revocation.
(13) The reference in subsection (10) to a
contravention of a term, provision or limitation of the same licence includes a
reference to a contravention of a term, provision or limitation contained in a
previous licence of which the licence in question is a direct or indirect
renewal.
(14) In this section, ‘communications provider’
and ‘associated facility’ have the same meaning as in the Communications Act 2003.”
(2) * * * * *
Wireless
telegraphy register
170 Wireless telegraphy register
(1) OFCOM
may by regulations make provision for the establishment and maintenance of a
register of relevant information.
(2) OFCOM
are to include relevant information in the register if, and only if, it is
relevant information of a description prescribed by regulations under this
section.
(3) Information
is relevant information for the purposes of subsection (1) if it relates
to –
(a) the issue, renewal,
transfer, variation or revocation of wireless telegraphy licences; or
(b) the making, renewal, transfer,
modification or revocation of grants of recognised spectrum access.
(4) Subject
to such conditions (including conditions as to payment) as may be prescribed by
regulations under this section, a register established by virtue of subsection
(1) shall be open to inspection by the public.
(5) Section
403 applies to the power of OFCOM to make regulations under this section.
Information
requirements
171 Information requirements in relation to
wireless telegraphy licences
(1) In
Part 3 of the Wireless Telegraphy
Act 1949 (c. 54) (supplemental provisions), before section 14 there
shall be inserted –
“13A Information requirements
(1) Subject to the following provisions of this
section, OFCOM may require a person who is using or has established, installed
or used a station or apparatus for wireless telegraphy to provide OFCOM with
all such information relating to –
(a) the establishment,
installation or use of the station or apparatus, and
(b) any related matters,
as OFCOM may require for statistical purposes.
(2) OFCOM are not to require the provision of
information under this section except –
(a) by a demand for the
information that sets out OFCOM’s reasons for requiring the information and the
statistical purposes for which it is required; and
(b) where the making of a
demand for that information is proportionate to the use to which the
information is to be put in the carrying out of OFCOM’s functions.
(3) A demand for information required under
this section must be contained in the notice served on the person from whom the
information is required.
(4) A person required to provide information
under this section must provide it in such manner and within such reasonable
period as may be specified by OFCOM.
(5) A person who fails to provide information
in accordance with a requirement of OFCOM under this section is guilty of an
offence.
(6) In proceedings against a person for an
offence under subsection (1) it shall be a defence for that person to
show –
(a) that it was not
reasonably practicable for him to comply with the requirement within the period
specified by OFCOM; but
(b) that he has taken all
reasonable steps to provide the required information after the end of that
period.
(7) A person is guilty of an offence if –
(a) in pursuance of any
requirement under this section, he provides information that is false in any
material particular; and
(b) at the time he provides
it, he either knows it to be false or is reckless as to whether or not it is
false.
13B Statement of policy on
information gathering
(1) It shall be the duty of OFCOM to prepare
and publish a statement of their general policy with respect to –
(a) the exercise of their
powers under section 13A; and
(b) the uses to which they
are proposing to put information obtained under that section.
(2) OFCOM may from time to time revise that
statement as they think fit.
(3) Where OFCOM make or revise their statement
of policy under this section, they must publish that statement or (as the case
may be) the revised statement in such manner as they consider appropriate for
bringing it to the attention of the persons who, in their opinion, are likely
to be affected by it.
(4) It shall be the duty of OFCOM, in
exercising the powers conferred on them by section 13A, to have regard to the
statement for the time being in force under this section.”
(2) In
section 14(1A) of that Act * * *, before paragraph (f) there shall
be inserted –
“(ea) any offence under
section 13A(1) of this Act; or”.
Criminal
proceedings etc.
172 Contraventions of conditions for use of
wireless telegraphy
(1) Where
OFCOM determine that there are reasonable grounds for believing that a person
is contravening, or has contravened –
(a) a term, provision or
limitation of a wireless telegraphy licence, or
(b) a term, provision or
limitation of an exemption under the proviso to section 1(1) of the Wireless Telegraphy Act
1949 (c. 54) (exemptions from licensing
requirement),
they may give that person
a notification under this section.
(2) A
notification under this section is one which –
(a) sets out the
determination made by OFCOM;
(b) specifies the term,
provision or limitation, and the contravention, in respect of which that
determination has been made; and
(c) specifies the period
during which the person notified has an opportunity of doing the things
specified in subsection (3).
(3) Those
things are –
(a) making representations
about the matters notified; and
(b) complying with any
notified term, provision or limitation of which he remains in contravention.
(4) Subject
to subsections (5) to (7),
the period for doing those things must be the period of one month beginning
with the day after the one on which the notification was given.
(5) OFCOM
may, if they think fit, allow a longer period for doing those things
either –
(a) by specifying a longer
period in the notification; or
(b) by subsequently, on one
or more occasions, extending the specified period.
(6) The
person notified shall have a shorter period for doing those things if a shorter
period is agreed between OFCOM and the person notified.
(7) The
person notified shall also have a shorter period if –
(a) OFCOM have reasonable
grounds for believing that the case is a case of repeated contravention;
(b) they have determined
that, in those circumstances, a shorter period would be appropriate; and
(c) the shorter period has
been specified in the notification.
173 Meaning of “repeated contravention” in s.
172
(1) For
the purposes of section 172 a contravention is a repeated contravention,
in relation to a notification with respect to that contravention, if –
(a) in the case of a
contravention of a term, provision or limitation of a licence, it falls within
subsection (2) or (3); or
(b) in the case of a
contravention of a term, provision or limitation of an exemption, it falls
within subsection (4) or (5).
(2) A
contravention of a term, provision or limitation of a licence falls within this
subsection if –
(a) a previous notification
under section 172 has been given in respect of the same contravention or in
respect of another contravention of a term, provision or limitation of the same
licence;
(b) the person who was given
that notification subsequently took steps for remedying the notified
contravention; and
(c) the subsequent
notification is given no more than twelve months after the day of the giving of
the previous notification.
(3) A
contravention of a term, provision or limitation of a licence falls within this
subsection if –
(a) the person concerned has
been convicted of an offence under section 1(1) of the Wireless Telegraphy Act
1949 (c. 54) in respect of the
contravention to which the notification relates or in respect of another
contravention of a term, provision or limitation of the same licence; and
(b) the subsequent
notification is given before the end of the period of twelve months from the
contravention in respect of which that person was convicted of that offence.
(4) A
contravention of a term, provision or limitation of an exemption falls within
this subsection if –
(a) a previous notification
under section 172 has been given in respect of the same contravention or in
respect of another contravention of the same term, provision or limitation;
(b) the person who was given
that notification subsequently took steps for remedying the notified
contravention; and
(c) the subsequent
notification is given no more than twelve months after the day of the giving of
the previous notification.
(5) A
contravention of a term, provision or limitation of an exemption falls within
this subsection if –
(a) the person concerned has
been convicted of an offence under section 1(1) of the Wireless Telegraphy Act
1949 (c. 54) in respect of the
contravention to which the notification relates or in respect of another
contravention of the same term, provision or limitation; and
(b) the subsequent notification
is given before the end of the period of twelve months from the contravention
in respect of which that person was convicted of that offence.
(6) In calculating the
periods of twelve months mentioned in subsections (3)(b) and (5)(b), the period
between the institution of the criminal proceedings which led to the conviction
and the conclusion of those proceedings shall be left out of account.
(7) For
the purposes of subsection (6) criminal proceedings shall be taken to be
concluded when no further appeal against conviction may be brought without the
permission of the court and –
(a) in a case where there is
no fixed period within which that permission can be sought, permission has been
refused or has not been sought; or
(b) in a case where there is
a fixed period within which that permission can be sought, that permission has
been refused or that period has expired without permission having been sought.
(8) References
in this section to remedying a contravention include references to each of the
following –
(a) doing any thing the
failure to do which, or the failure to do which within a particular period or
before a particular time, constituted the whole or a part of the contravention;
(b) paying an amount to a
person by way of compensation for loss or damage suffered by that person in
consequence of the contravention;
(c) paying an amount to a
person by way of compensation in respect of annoyance, inconvenience or anxiety
to which he has been put in consequence of the contravention; and
(d) otherwise acting in a
manner that constitutes an acknowledgement that the notified contravention did
occur.
(9) References
in this section to a contravention of a term, provision or limitation of a
licence include a reference to a contravention of a term, provision or
limitation contained in a previous licence of which the licence in question is
a direct or indirect renewal.
174 Procedure for prosecutions of wireless
telegraphy offences
(1) This
section applies to proceedings against a person (“the defendant”) for an offence
under section 1 of the Wireless
Telegraphy Act 1949 consisting in the contravention of –
(a) the terms, provisions or
limitations of a wireless telegraphy licence; or
(b) the terms, provisions or
limitations of an exemption under the proviso to section 1(1) of the Wireless Telegraphy Act
1949 (c. 54) (exemptions from licensing
requirement).
(2) Proceedings
to which this section applies are not to be brought at any time after the
coming into force of this section unless, before they are brought, OFCOM
have –
(a) given the defendant a
notification under section 172 in respect of the contravention to which the
proceedings relate; and
(b) considered any
representations about the matters notified which were made by the defendant
within the period allowed under that section.
(3) Proceedings
to which this section applies are not to be brought at any time after the
coming into force of this section in respect of a contravention if –
(a) it is a contravention to
which a notification given to that person under section 172 relates; and
(b) that person has, during
the period allowed under that section, complied with the notified term,
provision or limitation.
(4) Subsection
(2) does not apply where OFCOM have certified that it would be inappropriate to
follow the procedure in section 172 because of an immediate risk of –
(a) a serious threat to the
safety of the public, to public health or to national security; or
(b) serious economic or
operational problems for persons (other than the defendant) who –
(i) use stations or apparatus for wireless
telegraphy; or
(ii) are communications
providers or make associated facilities available.
(5) Where –
(a) proceedings to which this
section applies are brought by virtue of subsection (4) without a
notification having been given to the defendant, and
(b) the defendant is
convicted in those proceedings of the offence under section 1 of the Wireless Telegraphy Act
1949,
the court, in determining
how to deal with that person, shall have regard, in particular, to the matters
specified in subsection (6).
(6) Those
matters are –
(a) whether the defendant has
ceased to be in contravention of the terms, provisions or limitations in
question and (if so) when; and
(b) any steps taken by the
defendant (whether before or after the commencement of the proceedings) for
securing compliance with the obligations imposed on him by virtue of those
terms, provisions or limitations.
(7) * * * * *
(8) In
this section, “stations for wireless telegraphy” and “apparatus for wireless
telegraphy” have the same meanings as in the Wireless Telegraphy Act 1949 (c.
54).
175 Special procedure for contraventions by
multiplex licence holders
(1) OFCOM
may impose a penalty on a person if –
(a) that person is or has
been in contravention in any respect of the terms, provisions or limitations of
a general multiplex licence;
(b) the contravention relates
to terms, provisions or limitations falling within section 1(2A)(b) or (c) of
the Wireless
Telegraphy Act 1949 (terms, provisions and
limitations about service content);
(c) OFCOM have notified that
person that it appears to them that those terms, provisions or limitations have
been contravened in that respect; and
(d) that contravention is not
one in respect of which proceedings for an offence under that Act have been
brought against that person.
(2) Where
OFCOM impose a penalty on a person under this section, they shall –
(a) notify that person of
that decision and of their reasons for that decision; and
(b) in that notification, fix
a reasonable period after it is given as the period within which the penalty is
to be paid.
(3) A
penalty imposed under this section –
(a) must be paid to OFCOM;
and
(b) if not paid within the
period fixed by them, is to be recoverable by them accordingly.
(4) No
proceedings for an offence under the Wireless Telegraphy Act 1949 shall
be commenced against a person in respect of a contravention in respect of which
a penalty has been imposed by OFCOM under this section.
(5) For
the purposes of this section a licence is a general multiplex licence, in
relation to the time of a contravention, if –
(a) it is a wireless
telegraphy licence containing terms, provisions or limitations by virtue of
which the services for the purposes of which the use of the licensed station or
apparatus is authorised are confined to, or are allowed to include, one or more
multiplex services; and
(b) at that time, there is no
licence under Part 1 or 2 of the 1996 Act in force in respect of a
multiplex service to be broadcast using that station or apparatus.
(6) In
this section “multiplex service” means –
(a) a service for
broadcasting for general reception that consists in the packaging together of
two or more services that are provided for inclusion together in that service
by a combination of the relevant information in digital form; or
(b) a service provided with a
view to its being a service falling within paragraph (a) but in the case
of which only one service is for the time being comprised in digital form in
what is provided.
176 Amount of penalty under s. 175
(1) The
amount of a penalty imposed under section 175 is to be such amount, not
exceeding the greater of the following, as OFCOM think fit, namely –
(a) £250,000; and
(b) 5 per cent. of the
relevant amount of gross revenue.
(2) In
subsection (1) “the relevant amount of gross revenue” means the amount
specified in section 177.
(3) * * * * *
(4) * * * * *
177 “Relevant amount of gross revenue” for the
purposes of s. 176
(1) The
relevant amount of gross revenue for the purposes of section 176, in relation
to a penalty imposed on a person, is –
(a) where the last accounting
period of that person which falls before the contravention was a period of
twelve months, the relevant part of his gross revenue for that period; and
(b) in any other case, the
amount which, by making any appropriate apportionments or other adjustments of
the relevant part of his gross revenue for the accounting period or periods
mentioned in subsection (2), is computed to be the amount representing the
annual rate for the relevant part of his gross revenues.
(2) The
accounting period or periods referred to in subsection (1) are –
(a) every accounting period
of his to end within the period of twelve months immediately preceding the contravention;
and
(b) if there is no such
accounting period, the accounting period of his which is current at the time of
the contravention.
(3) In
this section, a reference to the relevant part of a person’s gross revenue, in
relation to a contravention of the terms, provisions or limitations of a
licence, is a reference to so much of his gross revenue as is attributable to
the provision of the service to which that licence relates.
(4) For
the purposes of this section –
(a) the gross revenue of a
person for a period, and
(b) the extent to which a
part of a person’s gross revenue is attributable to the provision of any
service,
shall be ascertained in
accordance with such principles as may be set out in a statement made by OFCOM.
(5) Such
a statement may provide for the amount of a person’s gross revenue for an
accounting period that is current when the amount falls to be calculated to be
taken to be the amount estimated by OFCOM, in accordance with the principles
set out in the statement, to be the amount that will be his gross revenue for
that period.
(6) OFCOM
may revise a statement made under subsection (4) from time to time.
(7) A
statement made or revised under this section may set out different principles
for different cases.
(8) Before
making or revising a statement under this section, OFCOM must consult the
Secretary of State and the Treasury.
(9) OFCOM
must –
(a) publish the statement
made under subsection (4) and every revision of it; and
(b) send a copy of the
statement and of every such revision to the Secretary of State;
and the Secretary of State
must lay copies of the statement and of every such revision before each House
of Parliament.
(10) Section
13A of the Wireless Telegraphy Act
1949 (c. 54) is to apply for the purpose of ascertaining the amount of a
person’s gross revenue for any period for the purposes of section 176 of this
Act and this section as it applies for the purpose of obtaining information for
statistical purposes about matters relating to the establishment, installation
or use by that person of a station or apparatus.
(11) In
this section –
“accounting period”, in
relation to a person, means a period in respect of which accounts of the
undertaking carried on by him are prepared or, if one such period is comprised
in another, whichever of those periods is or is closest to a twelve month
period; and
“gross revenue”, in
relation to a person, means the gross revenue of an undertaking carried on by
that person.
178 Proceedings for an offence relating to
apparatus use
(1) Section 11
of the Wireless Telegraphy Act 1949
(notices enforcing regulations on the use of apparatus) shall have effect with
the following amendments in relation to any notice under subsection (1) or (2)
of that section that is served after the coming into force of this
subsection –
(a) paragraph (i) of the
proviso to subsection (1) shall be omitted; and
(b) for subsections (3) to
(6) there shall be substituted –
“(2A) Where an appeal with respect to a notice under
this section is pending –
(a) proceedings for an offence
of contravening that notice (whether instituted before or after the bringing of
the appeal) shall be stayed until the appeal has been finally determined; and
(b) any such proceedings
shall be discharged if the notice is set aside in consequence of the appeal;
but this subsection does not affect proceedings in which a person
has been convicted at a time when there was no pending appeal.
(2B) For the purposes of this section an appeal
under section 192 of the Communications
Act 2003 with respect to a notice under this section or a further appeal
relating to the decision on such an appeal is pending unless –
(a) that appeal has been
brought to a conclusion or withdrawn and there is no further appeal pending in
relation to the decision on the appeal; or
(b) no further appeal
against a decision made on the appeal or on any such further appeal may be
brought without the permission of the court and –
(i) in a case where there is no fixed period
within which that permission can be sought, that permission has been refused or
has not been sought; or
(ii) in a case where there is a fixed period
within which that permission can be sought, that permission has been refused or
that period has expired without permission having been sought.
(2C) * * * * *
(2D) * * * * *”
(2) Section
12 of that Act (enforcement of regulations as to sales of apparatus etc.) shall
have effect in relation to any notices served under subsection (1) of that
section after the coming into force of this section with the substitution of
the following subsections for subsections (2) to (4) –
“(1A) Where an appeal with respect to a notice under
subsection (1) of this section is pending –
(a) proceedings for an
offence of contravening that notice (whether instituted before or after the
bringing of the appeal) shall be stayed until the appeal has been finally
determined; and
(b) any such proceedings
shall be discharged if the notice is set aside in consequence of the appeal;
but this subsection does not affect proceedings in which a person
has been convicted at a time when there was no pending appeal.
(1B) For the purposes of this section any appeal
under section 192 of the Communications
Act 2003 with respect to a notice under this section or a further appeal
relating to the decision on that appeal is pending unless –
(a) that appeal has been
brought to a conclusion or withdrawn and there is no further appeal pending in
relation to the decision; or
(b) no further appeal
against any decision made on the appeal or on any such further appeal may be
brought without the permission of the court and –
(i) in a case where there is no fixed period
within which that permission can be sought, that permission has been refused or
has not been sought; or
(ii) in a case where there is a fixed period
within which that permission can be sought, that permission has been refused or
that period has expired without permission having been sought.
(1C) * * * * *
(1D) * * * * *”
179 Modification of penalties for certain
wireless telegraphy offences
(1) In
subsection (1) of section 14 of the Wireless Telegraphy Act 1949
(c. 54) (either way offences), for paragraphs (aa) and (ab) there
shall be substituted –
“(aa) any offence under
section 1(1) of this Act consisting in the establishment or use of a
station for wireless telegraphy, or the installation or use of wireless
telegraphy apparatus, for the purpose of making a broadcast (within the meaning
of section 9 of the Marine, &c., Broadcasting (Offences) Act 1967 (c.
41));
(ab) any offence under
section 1A of this Act where the relevant contravention of section 1
would constitute an offence falling within paragraph (aa);”.
(2) After
subsection (1A), there shall be inserted –
“(1AA) A person committing –
(a) an offence under
section 1(1) of this Act other than –
(i) one which falls within subsection (1)(aa),
or
(ii) one which falls within subsection (1A)(a),
or
(b) an offence under
section 1A of this Act other than –
(i) one which falls within subsection (1)(ab),
or
(ii) one which falls within subsection
(1A)(aa),
shall be liable, * * *
to imprisonment for a term not exceeding six months or to a fine not exceeding
level [3] on the standard scale,[10] or to both.”
(3) * * * * *
(4) * * * * *
180 Fixed penalties for certain wireless
telegraphy offences
* *
*
*
*
*
*
181 Power of arrest
* *
*
*
*
*
*
182 Forfeiture etc. of restricted apparatus
* *
*
*
*
*
*
Construction
of 1949 Act
183 Modification of definition of “undue
interference”
For subsection (5) of
section 19 of the Wireless Telegraphy Act 1949 (c. 54)
(meaning of undue interference) there shall be substituted –
“(5) Interference with any wireless telegraphy is
not to be regarded as undue for the purposes of this Act unless it is also
harmful.
(5A) For the purposes of this Act interference is
harmful if –
(a) it creates dangers, or
risks of danger, in relation to the functioning of any service provided by
means of wireless telegraphy for the purposes of navigation or otherwise for
safety purposes; or
(b) it degrades, obstructs
or repeatedly interrupts anything which is being broadcast or otherwise
transmitted –
(i) by means of wireless telegraphy; and
(ii) in accordance with a licence under this
Act, regulations under the proviso to section 1(1) of this Act or a grant of
recognised spectrum access under Chapter 2 of Part 2 of the Communications Act 2003 or otherwise lawfully.”
184 Modification of definition of “wireless
telegraphy”
(1) The
Secretary of State may by order modify the definition of “wireless telegraphy”
in section 19(1) of the Wireless
Telegraphy Act 1949 by substituting a different frequency for the
frequency (at the passing of this Act, 3,000 GHz) that is for the time being
specified in that definition.
[(2) An order made by the Secretary of State under this section shall
not have effect in the Bailiwick of Jersey unless it is registered in the Royal
Court of Jersey and where any such order is so registered, it shall have effect
on the day following the day of such registration or on the day of coming into
force specified in the order, whichever is the later.]
CHAPTER 3
DISPUTES
AND APPEALS
Disputes
185 Reference of disputes to OFCOM
(1) * * * * *
(2) This
section also applies in the case of any other dispute if –
(a) it relates to rights or
obligations conferred or imposed by or under this Part or any of the enactments
relating to the management of the radio spectrum that are not contained in this
Part;
(b) it is a dispute between
different communications providers; and
(c) * * * * *
(3) Any
one or more of the parties to the dispute may refer it to OFCOM.
(4) A
reference made under this section is to be made in such manner as OFCOM may
require.
(5) The
way in which a requirement under subsection (4) –
(a) is to be imposed, or
(b) may be withdrawn or
modified,
is by a notice published
in such manner as OFCOM consider appropriate for bringing the requirement,
withdrawal or modification to the attention of the persons who, in their
opinion, are likely to be affected by it.
(6) Requirements
imposed under subsection (4) may make different provision for different cases.
(7) * * * * *
(8) * * * * *
186 Action by OFCOM on dispute reference
(1) This
section applies where a dispute is referred to OFCOM under and in accordance
with section 185.
(2) OFCOM
must decide whether or not it is appropriate for them to handle the dispute.
(3) Unless
they consider –
(a) that there are
alternative means available for resolving the dispute,
(b) that a resolution of the
dispute by those means would be consistent with the Community requirements set
out in section 4, and
(c) that a prompt and
satisfactory resolution of the dispute is likely if those alternative means are
used for resolving it,
their decision must be a
decision that it is appropriate for them to handle the dispute.
(4) As
soon as reasonably practicable after OFCOM have decided –
(a) that it is appropriate
for them to handle the dispute, or
(b) that it is not,
they must inform each of
the parties to the dispute of their decision and of their reasons for it.
(5) The
notification must state the date of the decision.
(6) Where –
(a) OFCOM decide that it is
not appropriate for them to handle the dispute, but
(b) the dispute is not
resolved by other means before the end of the four months after the day of
OFCOM’s decision,
the dispute may be referred
back to OFCOM by one or more of the parties to the dispute.
187 Legal proceedings about referred disputes
(1) Where
a dispute is referred or referred back to OFCOM under this Chapter, the
reference is not to prevent –
(a) the person making it,
(b) another party to the
dispute,
(c) OFCOM, or
(d) any other person,
from bringing, or
continuing, any legal proceedings with respect to any of the matters under
dispute.
(2) Nor
is the reference or reference back to OFCOM under this Chapter of a dispute to prevent
OFCOM from –
(a) giving a notification in
respect of something that they have reasonable grounds for believing to be a
contravention of any obligation imposed by or under any an enactment;
(b) exercising any of their
other powers under any enactment in relation to a contravention of such an
obligation; or
(c) taking any other step in
preparation for or with a view to doing anything mentioned in the preceding
paragraphs.
(3) If,
in any legal proceedings with respect to a matter to which a dispute relates,
the court orders the handling of the dispute by OFCOM to be stayed
* * * –
(a) OFCOM are required to
make a determination for resolving the dispute only if the stay
* * * is
lifted or expires; and
(b) the period during which
the stay
* * * is
in force must be disregarded in determining the period within which OFCOM are
required to make such a determination.
(4) Subsection (1)
is subject to section 190(8) and to any agreement to the contrary binding the
parties to the dispute.
(5) In
this section “legal proceedings” means civil or criminal proceedings in or
before a court.
188 Procedure for resolving disputes
(1) This
section applies where –
(a) OFCOM have decided under
section 186(2) that it is appropriate for them to handle a dispute; or
(b) a dispute is referred
back to OFCOM under section 186(6).
(2) OFCOM
must –
(a) consider the dispute; and
(b) make a determination for
resolving it.
(3) The
procedure for the consideration and determination of the dispute is to be the procedure
that OFCOM consider appropriate.
(4) In
the case of a dispute referred back to OFCOM under section 186(6), that
procedure may involve allowing the continuation of a procedure that has already
been begun for resolving the dispute by alternative means.
(5) Except
in exceptional circumstances and subject to section 187(3), OFCOM must
make their determination no more than four months after the following
day –
(a) in a case falling within
subsection (1)(a), the day of the decision by OFCOM that it is appropriate
for them to handle the dispute; and
(b) in a case falling within
subsection (1)(b), the day on which the dispute is referred back to them.
(6) Where
it is practicable for OFCOM to make their determination before the end of the
four month period, they must make it as soon in that period as practicable.
(7) OFCOM
must –
(a) send a copy of their
determination, together with a full statement of their reasons for it, to every
party to the dispute; and
(b) publish so much of their
determination as (having regard, in particular, to the need to preserve
commercial confidentiality) they consider it appropriate to publish.
(8) The
publication of information under this section must be in such manner as OFCOM
consider appropriate for bringing it to the attention, to the extent that they
consider appropriate, of members of the public.
189 Disputes involving other member States
(1) This
section applies where it appears to OFCOM that a dispute referred or referred
back to them under this Chapter relates partly to a matter falling within the
jurisdiction of the regulatory authorities of another member State.
(2) A
dispute relates to matters falling within the jurisdiction of the regulatory
authorities of another member
State to the extent
that –
(a) it relates to the
carrying on of activities by one or both of the parties to the dispute in more
than one member State or to activities carried on by different parties to the
dispute in different member States; and
(b) the activities to which
the dispute relates, so far as they are carried on in another member State,
are carried on in the member
State for which those
authorities are the regulatory authorities.
(3) For
the purposes of subsection (2) the activities that are carried on in a
member State include anything done by means of an electronic communications
network, or part of such a network, which is situated in that member State.
(4) Before
taking any steps under this Chapter in relation to the reference or the
dispute, OFCOM must consult the other regulatory authorities within whose
jurisdiction the matter falls.
(5) It
shall be the duty of OFCOM to secure that steps taken in relation to the
reference or dispute (whether taken by them or by the other regulatory
authorities) are, so far as practicable, agreed between OFCOM and those
authorities.
(6) Accordingly,
section 188 is to have effect in relation to the reference as if the period for
making a determination which is specified in subsection (5) of that
section were such period (if any) as may be agreed between –
(a) OFCOM; and
(b) the other regulatory
authorities within whose jurisdiction the matter falls.
190 Resolution of referred disputes
(1) Where
OFCOM make a determination for resolving a dispute referred to them under this
Chapter, their only powers are those conferred by this section.
(2) * * * * *
(3) Their
main power in the excepted case is just to make a declaration setting out the
rights and obligations of the parties to the dispute.
(4) Nothing
in this section prevents OFCOM from exercising the following powers in
consequence of their consideration under this Chapter of any dispute –
(a) * * * * *
(b) their powers to vary,
modify or revoke wireless telegraphy licences or grants of recognised spectrum
access;
(c) their power to make,
amend or revoke regulations under section 1 or 3 of the Wireless Telegraphy Act
1949 (c. 54).
(5) In
the case of a dispute referred back to OFCOM under section 186(6) –
(a) OFCOM may, in making
their determination, take account of decisions already made by others in the
course of an attempt to resolve the dispute by alternative means; and
(b) the determination made by
OFCOM may include provision ratifying decisions so made.
(6) Where
OFCOM make a determination for resolving a dispute, they may require a party to
the dispute –
(a) to make payments to
another party to the dispute in respect of costs and expenses incurred by that
other party in consequence of the reference of the dispute to OFCOM, or in
connection with it; and
(b) to make payments to OFCOM
in respect of costs and expenses incurred by them in dealing with the dispute.
(7) OFCOM
are not, under subsection (6)(b), to require payments to be made to them by a
party to the dispute except –
(a) * * * * *
(b) where it appears to OFCOM
that the reference of the dispute by that party was frivolous or vexatious or
that that party has otherwise abused the right of reference conferred by this
Chapter.
(8) A
determination made by OFCOM for resolving a dispute referred or referred back
to them under this Chapter binds all the parties to the dispute.
(9) Subsection
(8) is subject to section 192.
191 OFCOM’s power to require information in connection
with dispute
(1) Where
a dispute has been referred or referred back to OFCOM under this Chapter, they
may require any person to whom subsection (2) applies to provide them with all
such information as they may require for the purpose of –
(a) deciding whether it is
appropriate for them to handle the dispute;
(b) determining whether it is
necessary for them to consult the regulatory authorities of another member State;
or
(c) considering the dispute
and making a determination for resolving it.
(2) This
subsection applies to –
(a) a party to the dispute;
and
(b) a person who is not a
party to the dispute but appears to OFCOM to have information that is relevant
to the matters mentioned in subsection (1)(a) to (c).
(3) A
person required to provide information under this section must provide it in
such manner and within such reasonable period as may be specified by OFCOM.
(4) In
fixing the period within which information is to be provided in accordance with
a requirement under this section OFCOM must have regard, in particular,
to –
(a) their obligation to make
a determination for resolving the dispute within the period specified in
section 188;
(b) the nature of the
dispute; and
(c) the information that is
required.
(5) Sections
138 to 144 apply for the enforcement of a requirement under this section as
they apply for the enforcement of requirements under section 135 or 136.
(6) In
its application for the enforcement of this section, section 138 is to
have effect as if it allowed OFCOM to specify such period of less than one
month for doing the things mentioned in subsection (3) of that section as
they consider appropriate for the purpose of enabling them to comply with an
obligation of theirs to make a determination within a particular period.
Appeals
192 Appeals against decisions by OFCOM, the
Secretary of State etc.
(1) This
section applies to the following decisions –
(a) a decision by OFCOM under
this Part, the Wireless Telegraphy Act 1949
(c. 54) or the Wireless Telegraphy Act 1998
(c. 6) that is not a decision specified in Schedule 8;
(b) * * * * *
(c) * * * * *
(d) a decision by the
Secretary of State to which effect is given by one of the following –
(i) a specific direction under section 5 that
is not about the making of a decision specified in Schedule 8;
(ii) * * * * *
(iii) * * * * *
(iv) a specific direction
under section 156 that is not about the making of a decision specified in
Schedule 8.
(2) A
person affected by a decision to which this section applies may appeal against
it to the Tribunal.
(3) The
means of making an appeal is by sending the Tribunal a notice of appeal in
accordance with Tribunal rules.
(4) The
notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in those rules.
(5) The
notice of appeal must set out –
(a) the provision under which
the decision appealed against was taken; and
(b) the grounds of appeal.
(6) The
grounds of appeal must be set out in sufficient detail to indicate –
(a) to what extent (if any)
the appellant contends that the decision appealed against was based on an error
of fact or was wrong in law or both; and
(b) to what extent (if any)
the appellant is appealing against the exercise of a discretion by OFCOM, by
the Secretary of State or by another person.
(7) In
this section and Schedule 8 references to a decision under an
enactment –
(a) include references to a
decision that is given effect to by the exercise or performance of a power or
duty conferred or imposed by or under an enactment; but
(b) include references to a
failure to make a decision, and to a failure to exercise a power or to perform
a duty, only where the failure constitutes a failure to grant an application or
to comply with any other form of request to make the decision, to exercise the
power or to perform the duty;
and references in the
following provisions of this Chapter to a decision appealed against are to be
construed accordingly.
(8) For
the purposes of this section and the following provisions of this Chapter a
decision to which effect is given by the exercise or performance of a power or
duty conferred or imposed by or under an enactment shall be treated, except
where provision is made for the making of that decision at a different time, as
made at the time when the power is exercised or the duty performed.
193 Reference of price control matters to the
Competition Commission
* * * * * * *
194 Composition of Competition Commission for
price control references
* * * * * * *
195 Decisions of the [Royal Court of Jersey]
(1) The
[Royal Court of Jersey] shall dispose of an appeal under section 192(2) in
accordance with this section.
(2) The
[Royal Court of Jersey] shall decide the appeal on the merits and by reference
to the grounds of appeal set out in the notice of appeal.
(3) The
[Royal Court of Jersey]’s decision must include a decision as to what (if any)
is the appropriate action for the decision-maker to take in relation to the
subject-matter of the decision under appeal.
(4) The
[Royal Court of Jersey] shall then remit the decision under appeal to the
decision-maker with such directions (if any) as the [Royal Court of Jersey]
considers appropriate for giving effect to its decision.
(5) The
[Royal Court of Jersey] must not direct the decision-maker to take any action
which he would not otherwise have power to take in relation to the decision
under appeal.
(6) It
shall be the duty of the decision-maker to comply with every direction given
under subsection (4).
(7) * * * * *
[(8) The power of the Superior Number of the Royal Court to make Rules of Court under
Article 11 of the Royal Court
(Jersey) Law 1948, as amended,[11] shall include power to make Rules for the purposes of appeals under
section 192.]
(9) In
this section “the decision-maker” means –
(a) OFCOM or the Secretary of
State, according to who took the decision appealed against; or
(b) in the case of an appeal
against –
(i) a direction, approval or consent given by
a person other than OFCOM or the Secretary of State, or
(ii) the modification or
withdrawal by such a person of such a direction, approval or consent,
that other person.
196 Appeals from the [Royal Court of Jersey]
(1) A
decision of the [Royal Court of Jersey] on an appeal under section 192(2)
may itself be appealed.
(2) An
appeal under this section –
[(a) lies to the Jersey Court of Appeal;]
(b) must relate only to a
point of law arising from the decision of the [Royal Court of Jersey].
(3) An
appeal under this section may be brought by –
(a) a party to the proceedings
before the [Royal Court of Jersey]; or
(b) any other person who has
a sufficient interest in the matter.
(4) An
appeal under this section requires the permission of the [Royal Court of
Jersey] or of the [Jersey Court of Appeal] to which it is to be made.
(5) In
this section references to a decision of the [Royal Court of Jersey] include
references to a direction given by it under section 195(4).
Interpretation
of Chapter 3
197 Interpretation of Chapter 3
(1) In
this Chapter –
“network access” has the same
meaning as in Chapter 1 of this Part;
* * * * *
* * * * *
(2) References
in this Chapter, in relation to a dispute, to the regulatory authorities of
other member States are references to such of the authorities of the other
member States as have been notified under the Framework Directive to the European
Commission as the regulatory authorities of those States for the purposes of
the matters to which the dispute relates.
(3) * * * * *
PART 3
TELEVISION
AND RADIO SERVICES
CHAPTER 1
THE
BBC, C4C THE WELSH AUTHORITY AND THE GAELIC MEDIA SERVICE
The BBC
198 Functions of OFCOM in relation to the BBC
(1) It
shall be a function of OFCOM, to the extent that provision for them to do so is
contained in –
(a) the BBC Charter and
Agreement, and
(b) the provisions of this
Act and of Part 5 of the 1996 Act,
to regulate the provision
of the BBC’s services and the carrying on by the BBC of other activities for
purposes connected with the provision of those services.
(2) For
the purposes of the carrying out of that function OFCOM –
(a) are to have such powers
and duties as may be conferred on them by or under the BBC Charter and
Agreement; and
(b) are entitled, to the
extent that they are authorised to do so by the Secretary of State or under the
terms of that Charter and Agreement, to act on his behalf in relation to that
Charter and Agreement.
(3) The
BBC must pay OFCOM such penalties in respect of contraventions by the BBC of
provision made by or under –
(a) this Part, or
(b) the BBC Charter and
Agreement,
as are imposed by OFCOM in
exercise of powers conferred on them by that Charter and Agreement.
(4) The
BBC are also to be liable to pay OFCOM such sums in respect of the carrying out
by OFCOM of their functions in relation to the BBC as may be –
(a) agreed from time to time
between the BBC and OFCOM; or
(b) (in default of agreement)
fixed by the Secretary of State.
(5) The
maximum penalty that may be imposed on the BBC on any occasion by OFCOM in
exercise of a power conferred by virtue of the BBC Charter and Agreement is
£250,000.
(6) The
Secretary of State may by order substitute a different sum for the sum for the
time being specified in subsection (5).
(7) No
order is to be made containing provision authorised by subsection (6) unless a
draft of the order has been laid before Parliament and approved by a resolution
of each House.
(8) It
shall be the duty of OFCOM to have regard to their functions under this section
when carrying out their functions under the 1990 Act, the 1996 Act and this
Part in relation to services provided by persons other than the BBC.
(9) In
this section “the BBC’s services” means such of the services provided by the
BBC (excluding the services comprised in the World Service) as are of a
description of service which, if provided by a BBC company, would fall to be
regulated by OFCOM by virtue of section 211 or 245.
C4C
199 Functions of C4C
(1) The
activities that C4C are able to carry on include any activities which appear to
them –
(a) to be activities that it
is appropriate for them to carry on in association with the carrying out of
their primary functions; and
(b) to be connected,
otherwise than merely in financial terms, with activities undertaken by them
for the carrying out of those functions.
(2) C4C’s
primary functions are –
(a) securing the continued
provision of Channel 4; and
(b) the fulfilment of the
public service remit for that Channel under section 265.
(3) Section 24(5)(b) and (6)
of the 1990 Act (power of C4C to establish, acquire an interest in or assist a
qualifying company) shall cease to have effect.
(4) For
sub-paragraphs (3) and (4) of paragraph 1 of Schedule 3 to the 1990
Act (power of C4C to do things incidental or conducive to the carrying out of
their functions) there shall be substituted –
“(3) The Corporation may do anything which
appears to them to be incidental or conducive to the carrying out of their
functions.
(4) The powers of the Corporation under
sub-paragraph (3) include power, to the extent that it appears to them
incidental or conducive to the carrying out of their functions to do so –
(a) to borrow money;
(b) to carry on activities
(other than those comprised in their duty to carry out their primary functions)
through Channel 4 companies; and
(c) to participate with
others in the carrying on of any such activities.”
(5) Schedule 9
(which makes provision for the approval by OFCOM, and for the enforcement, of
arrangements made by C4C about the carrying on of their activities) shall have
effect.
200 Removal of members of C4C
(1) In
paragraph 3 of Schedule 3 to the 1990 Act (term of office of members of
C4C), after sub-paragraph (2) there shall be inserted –
“(2A) OFCOM may at any time, by notice to a member of
the Corporation, terminate the appointment of that member.
(2B) Before terminating a person’s appointment
under sub-paragraph (2A), OFCOM must consult the Secretary of State.”
(2) This
section applies only to a member whose appointment was made, or last renewed,
after the coming into force of this section.
201 Deficits and surpluses of C4C
(1) Sections
26 and 27 of the 1990 Act (revenue deficits of C4C to be funded by providers of
Channel 3 services and application of excess revenues of C4C) shall cease to
have effect.
(2) This
section has effect in relation to a deficit or excess for a year ending after
the commencement of this section.
202 Borrowing limit for C4C
(1) The
Secretary of State may by order provide for a limit on the borrowing that C4C
is allowed to undertake.
(2) The
order may fix the limit either –
(a) by specifying the sum
which the outstanding borrowing of C4C must not at any time exceed; or
(b) * * * * *
(3) C4C
are not to borrow money if the effect of the borrowing would be to cause the
amount of their outstanding borrowing to be, or to remain, in excess of the
limit (if any) that is for the time being in force.
(4) For
the purposes of this section the amount of C4C’s outstanding borrowing at any time
is the aggregate amount outstanding at that time in respect of the principal of
sums borrowed by them, but after allowing sums borrowed to repay existing loans
to be applied for that purpose.
(5) Before
making an order under this section, the Secretary of State must consult C4C.
(6) The
consent of the Treasury is required for the making of an order under this
section.
The
Welsh Authority
* * * * * * *
The
Gaelic Media Service
* * * * * * *
CHAPTER 2
REGULATORY
STRUCTURE FOR INDEPENDENT TELEVISION SERVICES
Preliminary
211 Regulation of independent television
services
(1) It
shall be a function of OFCOM to regulate the following services in accordance
with this Act, the 1990 Act and the 1996 Act –
(a) services falling within
subsection (2) that are provided otherwise than by the BBC * * *;
and
(b) services falling within
subsection (3) that are provided otherwise than by the BBC.
(2) The
services referred to in subsection (1)(a) are –
(a) television broadcasting
services that are provided from places in the United Kingdom [and the Bailiwick
of Jersey] with a view to their being broadcast otherwise than only from a
satellite;
(b) * * * * *
(c) * * * * *
(d) restricted television
services that are provided from places in the United Kingdom [and the Bailiwick
of Jersey]; and
(e) additional television
services that are provided from places in the United Kingdom [and the Bailiwick
of Jersey].
(3) The
services referred to in subsection (1)(b) are –
(a) television multiplex
services that are provided from places in the United Kingdom; and
(b) digital additional
television services that are provided by persons under the jurisdiction of the United Kingdom
for the purposes of the Television without Frontiers Directive.
212 Abolition of function of assigning
television frequencies
The Secretary of State
shall cease to have any function under the 1990 Act or the 1996 Act of
assigning frequencies for the purposes of any of the following –
(a) services
falling to be licensed under Part 1 of the 1990 Act;
(b) * * * * *
(c) television
multiplex services falling to be licensed under Part 1 of the 1996 Act.
213 Abolition of licensing for local cable
systems
* *
*
*
*
*
*
Channels
3 and 5
214 Digital Channel 3 and Channel 5 licences
(1) This
section applies to the grant by OFCOM, at any time on or after the television
transfer date, of a licence under Part 1 of the 1990 Act to provide a
Channel 3 service or to provide Channel 5.
(2) The
licence must –
(a) be a licence to provide
the licensed service with a view to its being broadcast in digital form; and
(b) contain such condition
(if any) requiring the provider of the service to ensure that the whole or a
part of the service is also provided for broadcasting in analogue form as OFCOM
consider appropriate.
(3) The conditions included
in a licence by virtue of subsection (2)(b) must be such as to enable effect to
be given to any directions given from time to time by the Secretary of State to
OFCOM about the continuance of the provision of services in analogue form.
(4) Where
the licence contains a condition falling within subsection (2)(b), it must also
contain a condition that –
(a) the programmes (apart
from the advertisements) that are included in the service provided in analogue
form, and
(b) the times at which they
are broadcast,
are to be the same as in
the case of, or of the specified part of, the service provided for broadcasting
in digital form.
(5) The
licence –
(a) must be a licence which
continues in force, from the time from which it takes effect, until the end of
the licensing period beginning or current at that time; and
(b) shall be renewable, on
one or more occasions, under section 216.
(6) For
the purposes of subsection (5) a licensing period is –
(a) the period beginning with
the commencement of this section and ending with the initial expiry date; or
(b) any subsequent period of
ten years beginning with the end of the previous licensing period.
(7) The
licence must contain the conditions that OFCOM consider appropriate for the
purpose of performing their duty under section 263.
(8) The
conditions of the licence must also include conditions prohibiting the
imposition, whether directly or indirectly, of the following –
(a) charges on persons in
respect of their reception in the United Kingdom [or the Bailiwick of
Jersey] of the licensed service;
(b) charges on persons in
respect of their reception in the United Kingdom [or the Bailiwick of Jersey]
of any service consisting in the provision of assistance for disabled people in
relation to programmes included in the licensed service; and
(c) charges on persons in
respect of their reception in the United Kingdom [or the Bailiwick of
Jersey] of any service (other than one mentioned in paragraph (b)) which
is an ancillary service in relation to so much of the licensed service as is
provided in digital form.
(9) It
shall be unlawful to impose a charge in contravention of a condition imposed
under subsection (8).
215 Replacement of existing Channel 3 and
Channel 5 licences
(1) It
shall be the duty of OFCOM to make an offer under this section to every person
who, when the offer is made, is the holder of a licence (an “existing
licence”) –
(a) to provide a Channel 3
service; or
(b) to provide Channel 5.
(2) The
offer made to a person under this section –
(a) must be an offer to
exchange his existing licence for a replacement licence; and
(b) must be made as soon as practicable
after the television transfer date.
(3) The
replacement licence offered must be one granted in accordance with the
provisions of –
(a) Part 1 of the 1990
Act; and
(b) section 214 of this Act;
but sections 15 to 17A of
the 1990 Act (award of licences) are not to apply in the case of the
replacement licence.
(4) Subject
to subsection (5), where OFCOM make an offer under this section to a
person, the service which they are proposing to license by the replacement
licence must be a service which –
(a) is provided with a view
to its being broadcast in digital form; but
(b) subject to that and to
any requirements of section 214, appears to OFCOM to be a service that is
equivalent in all material respects to the service the provision of which in
analogue form was authorised by the existing licence.
(5) An
offer under this section may, to such extent as OFCOM think fit, propose the
grant of a licence to provide a service for an area or at times which, though
substantially the same as in the case of the existing licence, are not
identical.
(6) The
offer must propose the inclusion in the replacement licence of conditions as to
the payment of amounts to OFCOM which require the payment of –
(a) the same amount in
respect of each complete calendar year falling wholly or partly within the
period for which the replacement licence is in force, and
(b) an amount equal to the
same percentage of the qualifying revenue for each accounting period of the
licence holder falling within that period,
as would have been payable
under the existing licence had that licence continued in force until the end of
the period for which the replacement licence is granted.
(7) That
offer must also propose the conditions for allowing amounts paid for a period
under the existing licence to be set off against liabilities for the same
period arising under the replacement licence.
(8) An
offer under this section must set out –
(a) the terms of the proposed
replacement licence;
(b) the conditions on which
OFCOM are proposing to grant the replacement licence;
(c) the period for which the
offer is open;
(d) the date on which the
proposed replacement licence will be granted if the offer is accepted;
(e) the time as from which it
is proposed that that licence will take effect if the offer is accepted; and
(f) the time from which the
existing licence will cease to have effect if the offer is not accepted.
(9) The
times set out under subsection (8) must –
(a) in the case of the time
set out under paragraph (e), be in the period of twelve months beginning
with the television transfer date; and
(b) in the case of the time
set out under paragraph (f), be in the period of eighteen months after the
end of the period set out under paragraph (c) of that subsection.
(10) Where
a person to whom an offer has been made under this section elects, by
notification to OFCOM, to exchange his licence for the replacement licence
offered to him –
(a) he is entitled, on the
date set out in the offer, to be granted, in accordance with Part 1 of the
1990 Act and section 214 of this Act, a replacement licence under that Part in
the terms, and on the conditions, so set out;
(b) the replacement licence
shall come into force, and the existing licence cease to have effect, at the
time specified in the offer, or such later time as OFCOM may, with the consent
of that person, direct; and
(c) the service which he is
authorised to provide by the replacement licence, so far as it is provided in
digital form, shall be a qualifying service for the purposes of Part 1 of
the 1996 Act.
(11) Where
the person to whom an offer has been made under this section –
(a) does not elect, during
the period for which the offer is open, to exchange the existing licence for
the replacement licence, or
(b) rejects
the offer before the end of that period,
the existing licence shall
have effect as if the period for which it is to continue in force ended with
the time specified in the offer for the purposes of subsection (8)(f).
(12) In
this section “qualifying revenue” has the same meaning as in section 19 of
the 1990 Act.
216 Renewal of Channel 3 and 5 licences
(1) The
holder of –
(a) a licence to provide a
Channel 3 service, or
(b) a licence to provide
Channel 5,
may apply to OFCOM for the
renewal of his licence for a period of ten years from the end of the licensing
period current at the time of the application.
(2) An
application for renewal may only be made in the period which –
(a) begins four years before
the end of the current licensing period; and
(b) ends three months before
the day that OFCOM have determined to be the day by which they would need to
publish a tender notice if they were proposing to grant a fresh licence to take
effect from the end of that period.
(3) A
determination for the purposes of subsection (2)(b) –
(a) must be made at least one
year before the day determined; and
(b) must be notified by OFCOM
to every person who, at the time of the determination, holds a licence in
respect of which there is right to apply for renewal under this section.
(4) Where
OFCOM receive an application under this section for the renewal of a licence,
they must –
(a) decide whether they will
be renewing the licence;
(b) if they decide that they
will be, determine in accordance with section 217 the financial terms on
which the licence will be renewed; and
(c) notify the applicant of
their decision and determination.
(5) Section
17(5) to (7) of the 1990 Act (suspect sources of funds) apply in relation to an
applicant for a renewal under this section as they apply in relation to an
applicant mentioned in section 17(5) of that Act, but as if references to
the award of a licence were references to its renewal.
(6) OFCOM
may decide not to renew the licence if they are not satisfied that the
applicant (if his licence were renewed) would provide a service complying with
the requirements imposed under Chapter 4 of this Part by conditions relating
to –
(a) the public service remit
for the licensed service;
(b) programming quotas;
(c) news and current affairs
programmes; and
(d) programme production and
regional programming.
(7) OFCOM
may also decide not to renew the licence if they propose to grant a fresh
licence for a service replacing the licensed service which would differ from
the licensed service in –
(a) the area for which it
would be provided; or
(b) the times of the day, or
days of the week, between or on which it would be provided.
(8) In
all cases in which –
(a) the applicant notifies
OFCOM that he accepts the terms notified to him under subsection (4)(c), and
(b) they are not required or
allowed by subsections (5) to (7) to refuse a renewal,
they must grant the
renewal as soon as reasonably practicable.
(9) But
OFCOM must not grant a renewal under this section more than eighteen months
before the end of the licensing period from the end of which the renewal will
take effect.
(10) Where
a licence is renewed under this section, it must be renewed on the same terms
and conditions, subject only to such modifications as are required to give
effect, in accordance with the determination under subsection (4)(b), to the
requirements imposed by section 217(4).
(11) Nothing
in this section requires OFCOM, following the receipt of an application for the
renewal of a licence –
(a) to make a decision or
determination, or
(b) to take any other step
under this section,
at any time after an order
under section 230 has come into force preventing the renewal of the
licence.
(12) For
the purposes of this section a licensing period is –
(a) the period beginning with
the commencement of this section and ending with the initial expiry date; or
(b) any subsequent period of
ten years beginning with the end of the previous licensing period.
(13) In
this section “tender notice” means a notice under section 15 of the 1990
Act.
217 Financial terms of licence renewed under s.
216
(1) The
determination under section 216(4)(b) must comprise –
(a) a determination of the
amount which the holder of the renewed licence will be required by the
conditions of that licence to pay to OFCOM in respect of the first complete
calendar year falling within the renewal period; and
(b) a determination of the
percentage of qualifying revenue for each accounting period of the licence
holder falling within the renewal period which the holder of that licence will
be required by those conditions to pay to OFCOM.
(2) The
amount determined under subsection (1)(a) must be equal to the amount
which, in OFCOM’s opinion, would have been the cash bid of the licence holder
were the licence (instead of being renewed) to be granted for the period of the
renewal on an application made in accordance with section 15 of the 1990 Act.
(3) For
the purposes of subsection (1)(b) –
(a) different percentages may
be determined for different accounting periods; and
(b) the percentages that may
be determined for an accounting period include a nil percentage.
(4) The
renewed licence is required, as renewed, to include conditions requiring the
licence holder to pay to OFCOM –
(a) in addition to any fees
required to be paid by virtue of section 4(1)(b) of the 1990 Act, but
(b) instead of the amounts
payable under the corresponding provision applicable under the conditions of
the licence to the period before the renewal takes effect,
the amounts specified in
subsection (5).
(5) Those
amounts are –
(a) in respect of the first
complete calendar year falling within the renewal period, the amount determined
under subsection (1)(a);
(b) in respect of each
subsequent year falling wholly or partly within the renewal period, that amount
increased by the appropriate percentage; and
(c) in respect of each
accounting period of the licence holder falling within the renewal period, an
amount representing a specified percentage of qualifying revenue for that
accounting period.
(6) The
percentage specified for the purposes of subsection (5)(c) in respect of an
accounting period must be the amount determined for that period under
subsection (1)(b).
(7) In
this section –
“the appropriate
percentage” and “qualifying revenue” each has the same meaning as in section 19
of the 1990 Act; and
“renewal period”, in relation
to a licence, means the period for which the licence is in force by reason of
its renewal.
The
public teletext service
218 Duty to secure the provision of a public
teletext service
(1) OFCOM
must do all that they can to secure the provision, in accordance with this
Chapter and Part 1 of the 1996 Act, of a teletext service that is
available nationwide.
(2) The
service must consist of –
(a) a single teletext service
provided in digital form with a view to its being broadcast by means of a
television multiplex service; and
(b) for so long as Channel 4,
* * * and
one or more Channel 3 services are broadcast in analogue form, an analogue
teletext service.
(3) The service, if licensed
to do so in accordance with section 219, may continue to include an analogue
teletext service after it is no longer required under subsection (2)(b) to
include such a service.
(4) The
analogue teletext service that must be or may be comprised in the public
teletext service is a single additional television service that uses the
combined spare capacity available for the provision of additional television
services on the frequencies on which Channel 3 services, Channel 4
* * * (or
any of them) are broadcast in analogue form.
(5) For
so long as the public teletext service must consist of both a teletext service
provided in digital form and an analogue teletext service, OFCOM must secure
that both services are provided by the same person.
(6) But
nothing in this section –
(a) requires the contents of
the two services comprised in the public teletext service to be the same;
(b) prevents the service from
including different items for different parts of the United Kingdom [or the
Bailiwick of Jersey] or prevents the different items from being made available
only in the parts of the United Kingdom [or the Bailiwick of Jersey] for which
they are included; or
(c) prevents the licence
holder from making arrangements authorised by virtue of section 220 for the
provision of the whole or a part of the public teletext service by another.
(7) OFCOM
must exercise their powers –
(a) to make frequencies
available for the purposes of Channel 3 services, Channel 4
* * *;
and
(b) to make determinations
for the purposes of section 48(2)(b) of the 1990 Act (determinations of spare
capacity),
in a manner that takes
account of their duty under this section.
219 Licensing of the public teletext service
(1) The
licence that is required for the purposes of section 13 of the 1990 Act in
respect of the public teletext service is a licence under Part 1 of that
Act complying with this section.
(2) The
licence –
(a) must be a licence which
continues in force, from the time from which it takes effect, until the end of
the licensing period beginning or current at that time; and
(b) shall be renewable, on
one or more occasions, under section 222.
(3) For
the purposes of subsection (2) a licensing period is –
(a) the period beginning with
the commencement of this section and ending with the initial expiry date; or
(b) any subsequent period of
ten years beginning with the end of the previous licensing period.
(4) The
licence must contain the conditions that OFCOM consider appropriate for the
purpose of performing their duty under section 263.
(5) The
conditions of the licence must also include conditions prohibiting the
imposition, whether directly or indirectly, of any charges on persons in
respect of their reception in the United Kingdom [and to the Bailiwick of
Jersey] of the licensed service.
(6) It
shall be unlawful to impose a charge in contravention of a condition imposed
under subsection (5).
(7) The
service authorised by a licence under this section, so far as it comprises a
service provided in digital form, is a qualifying service for the purposes of
Part 1 of the 1996 Act.
(8) Schedule 10
(which makes further provision about the award and grant of the licence for the
public teletext service and about the conditions and enforcement of that
licence) shall have effect.
220 Delegation of provision of public teletext
service
(1) The
licence for the provision of the public teletext service may –
(a) include provision
enabling the licence holder to authorise an eligible person to provide the
whole or a part of the public teletext service on his behalf; and
(b) impose conditions subject
to and in accordance with which the whole or a part of that service may be
provided by a person authorised by the licence holder.
(2) The
conditions of the licence to provide the public teletext service apply in
relation to its provision by a person authorised to do so on the licence
holder’s behalf as they apply to its provision by the licence holder.
(3) A
contravention of those conditions by a person so authorised shall be treated
for the purposes of this Chapter and the 1990 Act as a contravention on the
part of the licence holder.
(4) In
this section “eligible person” means a person who is not a disqualified person
under Part 2 of Schedule 2 to the 1990 Act in relation to the licence
for the public teletext service.
221 Replacement of existing public teletext provider’s
licence
(1) It
shall be the duty of OFCOM to make an offer under this section to the person
who, when the offer is made, is the holder of the licence to provide the
existing service (the “existing licence”).
(2) The
offer made to a person under this section –
(a) must be an offer to
exchange his existing licence for a replacement licence; and
(b) must be made as soon as
practicable after the television transfer date.
(3) The
replacement licence is to be one which is granted –
(a) for the purposes of
section 218 of this Act; and
(b) in accordance with
section 219 of this Act and the provisions of Part 1 of the 1990 Act;
but Part 1 of
Schedule 10 to this Act is not to apply in the case of the replacement
licence.
(4) Where
OFCOM make an offer under this section, the service which they are proposing to
license by or under the replacement licence must be a service which comprises
both –
(a) a service that appears to
OFCOM to be equivalent in all material respects to the existing service; and
(b) a service that appears to
them to be equivalent in all material respects to the teletext service in
digital form which that person is required to provide by virtue of section 30
of the 1996 Act.
(5) The
offer must propose the inclusion in the replacement licence of conditions as to
the payment of amounts to OFCOM which require the payment of –
(a) the same amount in
respect of each complete calendar year falling wholly or partly within the
period for which the replacement licence is in force, and
(b) an amount equal to the
same percentage of the qualifying revenue for each accounting period of the
licence holder falling within that period,
as would have been payable
under the existing licence had that licence continued in force until the end of
the period for which the replacement licence is granted.
(6) That
offer must also propose conditions allowing amounts paid for a period under the
existing licence to be set off against liabilities for the same period arising
under the replacement licence.
(7) An
offer under this section must set out –
(a) the terms of the proposed
replacement licence;
(b) the conditions on which
OFCOM are proposing to grant the replacement licence;
(c) the period for which the
offer is open;
(d) the time as from which it
is proposed the replacement licence will take effect if the offer is accepted;
and
(e) the time from which the
existing licence will cease to have effect if the offer is not accepted.
(8) The
times set out under subsection (7) must –
(a) in the case of the time
set out under paragraph (d), be in the period of twelve months beginning
with the television transfer date; and
(b) in the case of the time
set out under paragraph (e), be in the period of eighteen months after the
end of the period set out under paragraph (c) of that subsection.
(9) Where
the person to whom an offer has been made under this section elects, by
notification to OFCOM, to exchange his licence for the replacement licence
offered to him –
(a) he is entitled to be
granted the replacement licence in the terms, and on the conditions, set out in
the offer; and
(b) the replacement licence
shall come into force, and the existing licence cease to have effect, at the
time specified in the offer, or such later time as OFCOM may, with the consent
of that person, direct.
(10) Where
the person to whom an offer has been made under this section –
(a) does not elect, during
the period for which the offer is open, to exchange the existing licence for
the replacement licence, or
(b) rejects the offer before
the end of that period,
the existing licence shall
have effect as if the period for which it is to continue in force ended with
the time specified in the offer for the purposes of subsection (7)(e).
(11) In
this section “the existing service” means the teletext service which –
(a) is being provided
immediately before the television transfer date on the combined spare capacity
available for the provision of additional television services on frequencies on
which Channel 3 services and Channel 4 are provided; and
(b) is the service by
reference to which the Independent Television Commission have discharged their
duty under section 49(2) of the 1990 Act.
(12) In
this section “qualifying revenue” means the revenue which would be qualifying
revenue (within the meaning of section 52 of the 1990 Act) in relation to the
holder of a licence to provide the analogue teletext service comprised in the
public teletext service.
222 Renewal of public teletext licence
(1) The
holder of the licence to provide the public teletext service may apply to OFCOM
for the renewal of his licence for a period of ten years from the end of the
licensing period current at the time of the application.
(2) An
application for renewal may only be made in the period which –
(a) begins four years before
the end of the current licensing period; and
(b) ends three months before
the day that OFCOM have determined to be the day by which they would need to
publish a tender notice if they were proposing to grant a fresh licence to take
effect from the end of that period.
(3) A
determination for the purposes of subsection (2)(b) –
(a) must be made at least one
year before the day determined; and
(b) must be notified by OFCOM
to the holder, at the time of the determination, of the licence to provide the
public teletext service.
(4) Where
OFCOM receive an application under this section for the renewal of a licence,
they must –
(a) decide whether they will
be renewing the licence;
(b) if they decide that they
will be, determine in accordance with section 223 the financial terms on which
the licence will be renewed; and
(c) notify the applicant of
their decision and determination.
(5) Section
17(5) to (7) of the 1990 Act (suspect sources of funds) apply in relation to an
applicant for a renewal under this section as they apply in relation to an
applicant mentioned in section 17(5) of that Act, but as if –
(a) references to the award
of a licence were references to its renewal; and
(b) the reference in
subsection (7)(a) to section 19(1) of that Act were a reference to paragraph 7
of Schedule 10.
(6) OFCOM
may decide not to renew the licence if they are not satisfied that the
applicant (if his licence were renewed) would provide a service complying with
the requirements imposed under Chapter 4 of this Part by conditions relating
to –
(a) the public service remit
for the public teletext service;
(b) news; and
(c) regional matters.
(7) OFCOM
may also decide not to renew the licence if they propose to grant a fresh
licence for the public teletext service which would differ in any material
respect from the licensed service.
(8) In
all cases in which –
(a) the applicant notifies
OFCOM that he accepts the terms notified to him under subsection (4)(c), and
(b) they are not required or
allowed by subsections (5) to (7) to refuse a renewal,
they must grant the
renewal as soon as reasonably practicable.
(9) But
OFCOM must not grant a renewal under this section more than eighteen months
before the end of the licensing period from the end of which the renewal will
take effect.
(10) Where
a licence is renewed under this section, it must be renewed on the same terms
and conditions subject only to such modifications as are required to give
effect, in accordance with the determination under subsection (4)(b), to
paragraph 7 of Schedule 10.
(11) Nothing
in this section requires OFCOM, following the receipt of an application for the
renewal of a licence –
(a) to make a decision or
determination, or
(b) to take any other step
under this section,
at any time after an order
under section 230 has come into force preventing the renewal of the
licence.
(12) For
the purposes of this section a licensing period is –
(a) the period beginning with
the commencement of this section and ending with the initial expiry date; or
(b) any subsequent period of
ten years beginning with the end of the previous licensing period.
(13) In
this section “tender notice” means a notice under paragraph 1 of Schedule 10.
223 Financial terms of licence renewed under s.
222
(1) The
determination under section 222(4)(b) must comprise –
(a) a determination of the
amount which the holder of the renewed licence will be required by the
conditions of that licence to pay to OFCOM in respect of the first complete
calendar year falling within the renewal period;
(b) a determination of the
percentage of qualifying revenue for each accounting period of the licence
holder falling within the renewal period which he will be required by those
conditions to pay to OFCOM.
(2) The
amount determined under subsection (1)(a) must be equal to the amount which, in
OFCOM’s opinion, would have been the cash bid of the licence holder were the
licence (instead of being renewed) to be granted for the period of the renewal
on an application made in accordance with Part 1 of Schedule 10.
(3) For
the purposes of subsection (1)(b) –
(a) different percentages may
be determined for different accounting periods; and
(b) the percentages that may
be determined for an accounting period include a nil percentage.
(4) In
this section “renewal period”, in relation to a licence, means the period for
which the licence is in force by reason of its renewal.
(5) Part 3
of Schedule 10 applies for construing this section as it applies for
construing that Schedule.
Meaning
of initial expiry date
224 Meaning of “initial expiry date”
(1) Subject
to any postponement under this section, the date which is the initial expiry
date for the purposes of this Part is 31st December 2014.
(2) The
Secretary of State may (on one or more occasions) by order postpone the initial
expiry date.
(3) The
Secretary of State’s power to postpone the initial expiry date –
(a) is to be exercisable
before 30th June 2013 only if he has fixed a date after 30th June 2013 as the
date for digital switchover; and
(b) is not to be exercisable
on or after 30th June 2013 if he has fixed 30th June 2013 or an earlier date as
the date for digital switchover.
(4) Where
the Secretary of State makes an order under this section at a time after he has
fixed a date for digital switchover, the date to which the initial expiry date
is postponed must be a date not less than eighteen months after the date for
digital switchover.
(5) The
Secretary of State must exercise his power to postpone the initial expiry date
if it at any time appears to him that that date would otherwise fall within the
period of eighteen months immediately following the date fixed for digital
switchover.
(6) Where
an order under this section extends a licensing period for which a licence has
been granted in accordance with section 214 or 219, the 1990 Act and this Part
shall have effect (subject to subsection (7)) as if the licence had originally
been granted for the extended period.
(7) Where
an order under this section extends the period for which a licence is to
continue in force –
(a) that order shall not
affect the earliest time at which an application for the renewal of that
licence may be made in accordance with section 216(2)(a) or 222(2)(a);
(b) as soon as reasonably
practicable after making the order, OFCOM must make such modification of any
determination made by them in the case of that licence for the purposes of
section 216(2)(b) or 222(2)(b) as they consider appropriate in consequence of
the extension; and
(c) neither
section 216(3)(a) nor section 222(3)(a) applies to the making of that
modification.
(8) In
this section a reference to the date for digital switchover is a reference to
the date fixed by the Secretary of State for the purposes of this section as
the date which appears to him, in consequence of directions given by him for
the purposes of the conditions of the licences for the relevant public
broadcasting services, to be the date after which none of those services will
be broadcast to any significant extent in analogue form.
(9) In
this section “the relevant public broadcasting service” means any of the following –
(a) the services comprised in
Channel 3; and
(b) Channel 5.
Reviews
relating to licensing of Channels 3 & 5 and teletext
225 Application for review of financial terms of
replacement licences
(1) The
holder of a replacement licence granted under section 215 or 221 may apply to
OFCOM, at any time in the first or any subsequent review period, for a review
of the financial terms on which that licence is held.
(2) For
the purposes of this section the first review period is the period which –
(a) begins four years before
the first notional expiry date; and
(b) ends with the day before
the day that OFCOM have determined to be the one by which they would need to
publish a tender notice if they were proposing to grant a fresh licence to take
effect from the first notional expiry date.
(3) For
the purposes of this section a subsequent review period in the case of a
replacement licence is so much (if any) of the following period as falls before
the end of the initial expiry date, namely, the period which –
(a) begins four years before
a subsequent notional expiry date; and
(b) ends with the day before
the day that OFCOM have determined to be the one by which they would need to
publish a tender notice if they were proposing to grant a fresh licence to take
effect from that notional expiry date.
(4) A
determination for the purposes of subsection (2)(b) or (3)(b) in respect of a
replacement licence –
(a) must be made at least one
year before the day determined; and
(b) must be notified by OFCOM
to the person who, at the time of the determination, holds the licence in
question.
(5) No
application under this section for a review of the financial terms on which a
replacement licence is held is to be made –
(a) at any time when an
application under section 226 for a review of those terms is pending; or
(b) at any time in the period
of twelve months following the day on which a determination by OFCOM on such an
application is notified to the licence holder.
(6) For
the purposes of this section an application for a review under section 226
is pending from the time when the application is made until the end of the day
on which OFCOM’s determination on the review is notified to the licence holder.
(7) In
this section –
“the first notional expiry
date”, in relation to a replacement licence, means the date with which (apart
from this Act) the existing licence would have expired if not renewed;
“subsequent notional
expiry date”, in relation to a replacement licence, means –
(a) in a case in which an
application by the licence holder for a review under this section was made
during the review period beginning four years before the last notional expiry
date, the tenth anniversary of the date on which OFCOM’s determination on that
review was notified to the licence holder; and
(b) in any other case, the
tenth anniversary of the last notional expiry date;
“tender notice” means a
notice under section 15(1) of the 1990 Act or (as the case may be) paragraph 1
of Schedule 10.
(8) In
subsection (7) “existing licence” has the same meaning as in
section 215 or (as the case may be) 221.
226 Application for review of financial terms in
consequence of new obligations
(1) This
section applies where an order is made under section 411 that brings section
272, 273 or 274 (or any two or more of them) into force for the purpose of
including conditions in the regulatory regime for –
(a) a Channel 3 service;
(b) Channel 5; or
(c) the public teletext
service.
(2) The
holder of a licence in which conditions mentioned in section 272, 273 or 274
will fall to be included when the order comes into force may apply to OFCOM, at
any time in the review period, for a review of the financial terms on which the
licence is held.
(3) For
the purposes of this section the review period in the case of an order under section
411 is the period which –
(a) begins with the day on
which the order is made; and
(b) ends with the time at
which, by virtue of the order, one or more of sections 272, 273 and 274 come
into force in the case of the licence in question.
(4) If
in the case of the same order there is more than one time falling within
subsection (3)(b), the review period ends with the later or latest of them.
227 Reviews under ss. 225 and 226
(1) This
section applies where an application is made under section 225 or 226 for a
review of the financial terms on which a licence is held.
(2) As
soon as reasonably practicable after receiving the application, OFCOM
must –
(a) determine the amount to
be paid to them under the conditions of the licence for the first calendar year
falling wholly or partly within the period under review to begin after the
application date; and
(b) determine the percentage
to be used for computing the payments to be made to them under those conditions
in respect of each accounting period falling within the period under review to
begin after that date.
(3) The
amount determined under subsection (2)(a) must be equal to the amount
which, in OFCOM’s opinion, would have been the cash bid of the licence holder
were the licence being granted afresh on an application made in accordance
with –
(a) section 15 of the
1990 Act (licences for Channel 3 service or Channel 5); or
(b) paragraph 3 of Schedule 10
to this Act.
(4) The
determination required by subsection (2)(b) is a determination of the
percentage of qualifying revenue for each accounting period that is to be paid
to OFCOM.
(5) For
the purposes of subsection (2)(b) –
(a) different percentages may
be determined for different accounting periods; and
(b) the percentages that may
be determined for an accounting period include a nil percentage.
(6) In
making their determinations on an application under section 226 OFCOM are
to have regard, in particular, to any additional costs that are likely to be
incurred by the licence holder in consequence of the commencement of so much of
section 272, 273 or 274 (or any two or more of them) as is brought into force
by the commencement order in question.
(7) References
in this section to qualifying revenue for an accounting period are to be
construed –
(a) in the case of the holder
of a licence to provide a Channel 3 service or Channel 5, in accordance
with section 19 of and Part 1 of Schedule 7 to the 1990 Act; and
(b) in the case of the holder
of the licence to provide the public teletext service, in accordance with Part 3
of Schedule 10 to this Act.
(8) In
this section –
“the application date”, in
relation to a review, means the date of the making under section 225 or 226 of
the application for the review; and
“the period under review”,
in relation to a review of the financial terms of a licence, means so much of
the period for which the licence will (if not renewed) continue in force after
the application date.
228 Giving effect to reviews under ss. 225 and
226
(1) As
soon as reasonably practicable after making a determination under section 227
on an application under section 225 or 226, OFCOM must give a notification of
their determination to the applicant.
(2) The
notification must set out –
(a) the determination made by
OFCOM;
(b) the modifications of the
applicant’s licence that are required to give effect to the determination;
(c) a date by which the
applicant must notify OFCOM whether or not he accepts the determination and
modifications; and
(d) a subsequent date by
which the applicant’s licence will cease to have effect if he does not.
(3) The
modifications set out in accordance with subsection (2)(b) must secure that the
amount falling to be paid under the conditions of the applicant’s licence for
each calendar year subsequent to that for which an amount has been determined
in accordance with section 227(2)(a) is the amount so determined as increased
by the appropriate percentage.
(4) In
the case of a determination on an application under section 225, the date
specified in accordance with subsection (2)(d) must not fall before whichever
is the earlier of –
(a) the next notional expiry
date after the application for the review; and
(b) the end of the licensing
period in which that application was made.
(5) Where
the applicant notifies OFCOM that he accepts the determination –
(a) his licence is to have
effect with the modifications set out in OFCOM’s notification; and
(b) all such adjustments by
way of payment or repayment as may be necessary for giving effect to the
modifications are to be made in respect of any payments already made for years
or periods affected by the modifications.
(6) Where
the applicant does not, before the date specified in accordance with paragraph (c)
of subsection (2), notify OFCOM that he accepts the determination, his licence
shall have effect as if the period for which it is to continue in force ended
with the time specified in accordance with paragraph (d) of that
subsection.
(7) Where
the time at which a licence would cease to have effect in accordance with
subsection (6) is the end of a licensing period, that subsection does not
affect any rights of the licence holder with respect to the renewal of his
licence from the end of that period.
(8) In
this section –
“the appropriate
percentage” has the same meaning as in section 19 of the 1990 Act;
“licensing period”
means –
(a) the period beginning with
the commencement of this section and ending with the initial expiry date; or
(b) any subsequent period of
ten years beginning with the end of the previous licensing period;
“notional expiry date” means
a first or subsequent notional expiry date within the meaning of section 225.
229 Report in anticipation of new licensing
round
(1) OFCOM
must, in anticipation of the end of each licensing period –
(a) prepare a report under
this section; and
(b) submit it to the
Secretary of State no later than thirty months before the end of that period.
(2) A
report under this section must set out OFCOM’s opinion on the effect of each of
the matters mentioned in subsection (3) on the capacity of the holders of
relevant licences to contribute, in the next licensing period, to the
fulfilment of the purposes of public service television broadcasting in the
United Kingdom at a cost to the licence holders that is commercially
sustainable.
(3) Those
matters are –
(a) the arrangements that
(but for an order under section 230) would allow for the renewal of
relevant licences from the end of the current licensing period; and
(b) the conditions included
in the regulatory regimes for the services provided under relevant licences.
(4) A
report under this section must also include the recommendations (if any) which
OFCOM consider, in the light of the opinion set out in the report, should be
made to the Secretary of State for the exercise by him of –
(a) his power under section
230; or
(b) any of the powers to make
statutory instruments that are conferred on him by Chapter 4 of this Part.
(5) Where
the Secretary of State makes an order under section 224 after receiving a
report under this section in anticipation of the end of the licensing period
that is extended by the order –
(a) he may require OFCOM to
prepare a supplementary report in the light of the postponement of the
beginning of the next licensing period; and
(b) it shall be the duty of
OFCOM, within such period as may be specified by the Secretary of State, to
prepare the required supplementary report and to submit it to him.
(6) In
this section –
“licensing period”
means –
(a) the period beginning with
the commencement of this section and ending with the initial expiry date; or
(b) any subsequent period of
ten years beginning with the end of the previous licensing period;
“relevant licence”
means –
(a) a licence to provide a
Channel 3 service;
(b) a licence to provide
Channel 5; or
(c) the licence to provide
the public teletext service.
230 Orders suspending rights of renewal
(1) This
section applies where the Secretary of State has received and considered a
report submitted to him by OFCOM under section 229.
(2) If –
(a) the report contains a
recommendation by OFCOM for the making of an order under this section, or
(b) the Secretary of State
considers, notwithstanding the absence of such a recommendation, that it would
be appropriate to do so,
he may by order provide
that licences for the time being in force that are of the description specified
in the order are not to be renewable under section 216 or 222 from the end of
the licensing period in which he received the report.
(3) An
order under this section preventing the renewal of licences from the end of a
licensing period must be made at least eighteen months before the end of that
period.
(4) The
Secretary of State is not to make an order under this section preventing the
renewal of licences from the end of the initial licensing period unless he has
fixed a date before the end of that period as the date for digital switchover.
(5) Where
the Secretary of State postpones the date for digital switchover after making
an order under this section preventing the renewal of licences from the end of
the initial licensing period, the order shall have effect only if the date to
which digital switchover is postponed falls before the end of that period.
(6) Subsection (5)
does not affect the power of the Secretary of State to make another order under
this section after postponing the date for digital switchover.
(7) An
order under this section with respect to Channel 3 licences must be an order of
one of the following descriptions –
(a) an order applying to
every licence to provide a Channel 3 service;
(b) an order applying to
every licence to provide a national Channel 3 service; or
(c) an order applying to
every licence to provide a regional Channel 3 service.
(8) An
order under this section does not affect –
(a) the person to whom a
licence may be granted on an application made under section 15 of the 1990
Act or under paragraph 3 of Schedule 10 to this Act; or
(b) rights of renewal in
respect of licences first granted so as to take effect from the beginning of a
licensing period beginning after the making of the order, or from a subsequent
time.
(9) * * * * *
(10) Subsection
(8) of section 224 applies for construing references in this section to the
date for digital switchover as it applies for the purposes of that section.
(11) In
this section –
“initial licensing period”
means the licensing period ending with the initial expiry date; and
“licensing period” has the
same meaning as in section 229.
Replacement
of Channel 4 licence
231 Replacement of Channel 4 licence
(1) * * * * *
(2) It
shall be the duty of OFCOM, as soon as practicable after the television
transfer date –
(a) to prepare a draft of a
licence under Part 1 of the 1990 Act to replace the licence that is likely
to be in force for the purposes of section 24(3) of the 1990 Act when
subsection (1) of this section comes into force;
(b) to notify C4C of the
terms and conditions of the replacement licence they propose; and
(c) * * * * *
(3) A
replacement licence proposed or granted under this section –
(a) must be a licence to
provide a service with a view to its being broadcast in digital form; and
(b) must contain such
conditions (if any) requiring C4C to ensure that the whole or a part of Channel
4 is also provided for broadcasting in analogue form as OFCOM consider
appropriate.
(4) The
conditions included in a licence by virtue of subsection (3)(b) must be such as
to enable effect to be given to any directions given from time to time by the
Secretary of State to OFCOM about the continuance of the provision of services
in analogue form.
(5) Where
a replacement licence proposed or granted under this section contains a
condition falling within subsection (3)(b), it must also contain a condition
that –
(a) the programmes (apart
from the advertisements) that are included in the service provided in analogue
form, and
(b) the times at which they
are broadcast,
are to be the same as in
the case of, or of the specified part of, the service provided for broadcasting
in digital form.
(6) The
terms of a replacement licence proposed or granted under this section must
provide for it to continue in force until the end of 2014.
(7) But –
(a) such a licence may be
renewed, on one or more occasions, for such period as OFCOM may think fit in
relation to the occasion in question; and
(b) the provisions of this
section (apart from subsections (1), (2) and (6)) are to apply in the case of a
licence granted by way of a renewal of a licence granted under this section as
they apply in the case of the replacement licence.
(8) The
conditions of a replacement licence proposed or granted under this section must
include the conditions that OFCOM consider appropriate for the purpose of
performing their duty under section 263.
(9) The
conditions of such a licence must also include a condition prohibiting the imposition,
whether directly or indirectly, of the following –
(a) charges on persons in
respect of their reception in the United Kingdom [and the Bailiwick of Jersey]
of Channel 4;
(b) charges on persons in
respect of their reception in the United Kingdom [and the Bailiwick of Jersey]
of any service consisting in the provision of assistance for disabled people in
relation to programmes included in Channel 4; and
(c) charges on persons in
respect of their reception in the United Kingdom [and the Bailiwick of Jersey]
of any service (other than one mentioned in paragraph (b)) which is an
ancillary service in relation to so much of Channel 4 as is provided in digital
form.
(10) It
shall be unlawful to impose a charge in contravention of a condition falling
within subsection (9).
Television
licensable content services
232 Meaning of “television licensable content
service”
(1) In
this Part “television licensable content service” means (subject to
section 233) any service falling within subsection (2) in so far as it is
provided with a view to its availability for reception by members of the public
being secured by one or both of the following means –
(a) the broadcasting of the
service (whether by the person providing it or by another) from a satellite; or
(b) the distribution of the
service (whether by that person or by another) by any means involving the use
of an electronic communications network.
(2) A
service falls within this subsection if it –
(a) is provided (whether in
digital or in analogue form) as a service that is to be made available for
reception by members of the public; and
(b) consists of television
programmes or electronic programme guides, or both.
(3) Where –
(a) a service consisting of
television programmes, an electronic programme guide or both (“the main
service”) is provided by a person as a service to be made available for
reception by members of the public, and
(b) that person provides the
main service with other services or facilities that are ancillary to, or
otherwise relate to, the main service and are also provided so as to be so
available or in order to make a service so available,
subsection (1) has effect
as if the main service and such of the other services or facilities as are
relevant ancillary services and are not two-way services constituted a single
service falling within subsection (2).
(4) Where
a person providing the main service provides it with a facility giving access
to another service, the other service shall also be taken for the purposes of
this section as provided by that person with the main service only if what is
comprised in the other service is something over which that person has general
control.
(5) A
service is a two-way service for the purposes of this section if it is provided
by means of an electronic communications network and an essential feature of
the service is that the purposes for which it is provided involve the use of
that network, or a part of it, both –
(a) for the transmission of
visual images or sounds (or both) by the person providing the service to users
of the service; and
(b) for the transmission of
visual images or sounds (or both) by those users for reception by the person
providing the service or by other users of the service.
(6) In
this section –
“electronic programme
guide” means a service which consists of –
(a) the listing or promotion,
or both the listing and the promotion, of some or all of the programmes
included in any one or more programme services the providers of which are or
include persons other than the provider of the guide; and
(b) a facility for obtaining
access, in whole or in part, to the programme service or services listed or
promoted in the guide;
“relevant ancillary
service”, in relation to the main service, means a service or facility provided
or made available by the provider of the main service that consists of or gives
access to –
(a) assistance for disabled
people in relation to some or all of the programmes included in the main
service;
(b) a service (apart from
advertising) which is not an electronic programme guide but relates to the
promotion or listing of programmes so included; or
(c) any other service (apart
from advertising) which is ancillary to one or more programmes so included and
relates directly to their contents.
233 Services that are not television licensable
content services
(1) A
service is not a television licensable content service to the extent that it is
provided with a view to its being broadcast by means of a multiplex service.
(2) A
service is not a television licensable content service to the extent that it
consists of a service the provision of which is authorised by –
(a) a licence to provide a
television broadcasting service;
(b) the licence to provide
the public teletext service; or
(c) a licence to provide
additional television services.
(3) A
service is not a television licensable content service to the extent that it is
provided by means of an electronic communications service if –
(a) it forms part only of a
service provided by means of that electronic communications service or is one
of a number of services access to which is made available by means of a service
so provided; and
(b) the service of which it
forms part, or by which it may be accessed, is provided for purposes that do
not consist wholly or mainly in making available television programmes or radio
programmes (or both) for reception by members of the public.
(4) A
service is not a television licensable content service if it is a two-way
service (within the meaning of section 232).
(5) A
service is not a television licensable content service if –
(a) it is distributed by
means of an electronic communications network only to persons all of whom are
on a single set of premises; and
(b) that network is wholly
within those premises and is not connected to an electronic communications
network any part of which is outside those premises.
(6) For
the purposes of subsection (5) –
(a) a set of premises is a
single set of premises if, and only if, the same person is the occupier of all
the premises; and
(b) two or more vehicles are
capable of constituting a single set of premises if, and only if, they are
coupled together.
(7) A
service is not a television licensable content service if it is provided for
the purpose only of being received by persons who have qualified as users of
the service by reason of being –
(a) persons who have a
business interest in the programmes included in the service; or
(b) persons who are to
receive the programmes for the purpose only of showing them to persons falling
within sub-paragraph (a) or to persons all of whom are on the business
premises of the person receiving them.
(8) For
the purposes of subsection (7) a person has a business interest in programmes
if he has an interest in receiving or watching them –
(a) for the purposes of a
business carried on by him; or
(b) for the purposes of his
employment.
(9) In
this section –
“business premises”, in
relation to a person, means premises at or from which any business of that
person is carried on;
“multiplex service” means
a television multiplex service, a radio multiplex service or a general
multiplex service;
“premises” includes a
vehicle;
“vehicle” includes a
vessel, aircraft or hovercraft.
(10) References
in this section, in relation to a person, to a business include references
to –
(a) any business or other
activities carried on by a body of which he is a member and the affairs of
which are managed by its members; and
(b) the carrying out of any
functions conferred on that person, or on any such body, by or under any
enactment.
234 Modification of ss. 232 and 233
(1) The
Secretary of State may by order modify any of the provisions of section 232 or
233 if it appears to him appropriate to do so having regard to any one or more
of the following –
(a) the protection which,
taking account of the means by which the programmes and services are received
or may be accessed, is expected by members of the public as respects the
contents of television programmes;
(b) the extent to which
members of the public are able, before television programmes are watched or
accessed, to make use of facilities for exercising control, by reference to the
contents of the programmes, over what is watched or accessed;
(c) the practicability of
applying different levels of regulation in relation to different services;
(d) the financial impact for
providers of particular services of any modification of the provisions of that
section; and
(e) technological
developments that have occurred or are likely to occur.
(2) The
Secretary of State may also by order provide, in cases where it otherwise
appears to him appropriate to do so, that a description of service specified in
the order is not to be treated as a television licensable content service for
the purposes of the provisions of this Act that are so specified.
(3) No
order is to be made containing provision authorised by this section unless a
draft of the order has been laid before Parliament and approved by a resolution
of each House.
235 Licensing of television licensable content
services
(1) The
licence that is required for the purposes of section 13 of the 1990 Act in
respect of a television licensable content service is a licence granted under
Part 1 of that Act on an application complying with this section.
(2) An
application for a licence to provide a television licensable content service –
(a) must be made in such
manner,
(b) must contain such
information about the applicant, his business and the service he proposes to
provide, and
(c) must be accompanied by
such fee (if any),
as OFCOM may determine.
(3) Where
an application is made to OFCOM in accordance with subsection (2) for a
licence to provide a television licensable content service, OFCOM are entitled
to refuse the application only if –
(a) they are required to do
so by section 3(3) of the 1990 Act (licences to be held only by fit and proper
persons);
(b) they are required to do so by section 5
of the 1990 Act (restrictions on the holding of licences); or
(c) they are satisfied that,
if the application were to be granted, the provision of the service would be
likely to involve contraventions of –
(i) standards set under section 319 of this
Act; or
(ii) the provisions of a code
of practice in force under Part 5 of the 1996 Act (fairness).
(4) The
provision of more than one television licensable content service shall require
a separate licence under Part 1 of the 1990 Act to be granted and held in
respect of each service.
(5) A
single licence to provide a television licensable content service may authorise
the provision of a service which consists (to any extent) of different programmes
to be broadcast simultaneously, or virtually so.
(6) A
licence to provide a television licensable content service shall continue in
force until such time as it is surrendered or is revoked in accordance with any
of the provisions of this Chapter or of the 1990 Act.
236 Direction to licensee to take remedial
action
(1) This
section applies if OFCOM are satisfied –
(a) that the holder of a
licence to provide a television licensable content service has contravened a
condition of the licence; and
(b) that the contravention
can be appropriately remedied by the inclusion in the licensed service of a
correction or a statement of findings (or both).
(2) OFCOM
may direct the licence holder to include a correction or a statement of
findings (or both) in the licensed service.
(3) A
direction may require the correction or statement of findings to be in such
form, and to be included in programmes at such time or times, as OFCOM may
determine.
(4) OFCOM
are not to give a person a direction under this section unless they have given
him a reasonable opportunity of making representations to them about the
matters appearing to them to provide grounds for the giving of the direction.
(5) Where
the holder of a licence includes a correction or a statement of findings in the
licensed service in pursuance of a direction under this section, he may
announce that he is doing so in pursuance of such a direction.
(6) If
OFCOM are satisfied that the inclusion of a programme in a television
licensable content service involved a contravention of a condition of the
licence to provide that service, they may direct the holder of the licence not
to include that programme in that service on any future occasion.
(7) Where
OFCOM –
(a) give a direction to a BBC
company under subsection (2), or
(b) receive representations
from a BBC company by virtue of subsection (4),
they must send a copy of
the direction or representations to the Secretary of State.
(8) For
the purposes of this section a statement of findings, in relation to a case in
which OFCOM are satisfied that the holder of a licence has contravened the
conditions of his licence, is a statement of OFCOM’s findings in relation to
that contravention.
237 Penalties for contravention of licence
condition or direction
(1) If
OFCOM are satisfied that the holder of a licence to provide a television
licensable content service –
(a) has contravened a
condition of the licence, or
(b) has failed to comply with
a direction given by OFCOM under or by virtue of a provision of this Part, Part 1
of the 1990 Act or Part 5 of the 1996 Act,
they may serve on him a
notice requiring him to pay them, within a specified period, a specified
penalty.
(2) The
amount of the penalty under this section must not exceed the maximum penalty
given by subsection (3).
(3) The
maximum penalty is whichever is the greater of –
(a) £250,000; and
(b) 5 per cent. of the
qualifying revenue for the licence holder’s last complete accounting period
falling within the period for which his licence has been in force (‘the
relevant period’).
(4) In
relation to a person whose first complete accounting period falling within the
relevant period has not ended when the penalty is imposed, subsection (3) is to
be construed as referring to 5 per cent of the amount which OFCOM estimate will
be the qualifying revenue for that accounting period.
(5) Section
19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act
(calculation of qualifying revenue), with any necessary modifications, are to
apply for the purposes of subsection (3) as they apply for the purposes of Part 1
of that Act.
(6) OFCOM
are not to serve a notice on a person under subsection (1) unless they have
given him a reasonable opportunity of making representations to them about the
matters appearing to them to provide grounds for the service of the notice.
(7) Where
OFCOM –
(a) serve a notice on a BBC
company under subsection (1), or
(b) receive representations
from a BBC company by virtue of subsection (6),
they must send a copy of
the notice or representations to the Secretary of State.
(8) An
exercise by OFCOM of their powers under subsection (1) does not preclude any
exercise by them of their powers under section 236 in respect of the same
contravention.
(9) The
Secretary of State may by order substitute a different sum for the sum for the
time being specified in subsection (3)(a).
(10) * * * * *
238 Revocation of television licensable content
service licence
(1) OFCOM
must serve a notice under subsection (2) on the holder of a licence to provide
a television licensable content service if they are satisfied –
(a) that the holder of the
licence is in contravention of a condition of the licence or is failing to
comply with a direction given by them under or by virtue of any provision of
this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act; and
(b) that the contravention or
failure, if not remedied, would justify the revocation of the licence.
(2) A
notice under this subsection must –
(a) state that OFCOM are
satisfied as mentioned in subsection (1);
(b) specify the respects in
which, in their opinion, the licence holder is contravening the condition or
failing to comply with the direction; and
(c) state that OFCOM will
revoke the licence unless the licence holder takes, within such period as is
specified in the notice, such steps to remedy the failure as are so specified.
(3) If,
at the end of the period specified in a notice under subsection (2), OFCOM are
satisfied –
(a) that the person on whom
the notice was served has failed to take the steps specified in it, and
(b) that it is necessary in
the public interest to revoke his licence,
they shall serve a notice
on him revoking his licence.
(4) If
OFCOM are satisfied in the case of a licence to provide a television licensable
content service –
(a) that the holder of the
licence has ceased to provide the licensed service, and
(b) that it is appropriate
for them to do so,
they shall serve a notice
on him revoking his licence.
(5) If
OFCOM are satisfied –
(a) that the holder of a
licence to provide a television licensable content service has provided them,
in connection with his application for the licence, with information which was
false in a material particular, or
(b) that, in connection with
his application for the licence, the holder of such a licence withheld any
material information with the intention of causing them to be misled,
they may serve a notice on
him revoking his licence.
(6) A
notice under this section revoking a licence to provide a television licensable
content service takes effect as from the time when it is served on the licence
holder.
(7) OFCOM
are not to serve a notice on a person under this section unless they have given
him a reasonable opportunity of making representations to them about the
matters in respect of which it is served.
(8) Where
OFCOM –
(a) serve a notice on a BBC
company under this section, or
(b) receive representations
from a BBC company by virtue of subsection (7),
they must send a copy of
the notice or representations to the Secretary of State.
(9) Nothing
in this section applies to the revocation of a licence in exercise of the power
conferred by section 239.
239 Action against licence holders who incite
crime or disorder
(1) OFCOM
must serve a notice under subsection (2) on the holder of a licence to provide
a television licensable content service if they are satisfied –
(a) that the holder of the
licence has included in the service one or more programmes containing material likely
to encourage or to incite the commission of crime, or to lead to disorder;
(b) that, in doing so, he has
contravened conditions contained by virtue of Chapter 4 of this Part in the
licence to provide that service; and
(c) that the contravention is
such as to justify the revocation of the licence.
(2) A
notice under this subsection must –
(a) state that OFCOM are
satisfied as mentioned in subsection (1);
(b) specify the respects in
which, in their opinion, the licence holder has contravened the condition
mentioned in paragraph (b) of that subsection;
(c) state that OFCOM may
revoke the licence after the end of the period of twenty-one days beginning
with the day on which the notice is served on the licence holder; and
(d) inform the licence holder
of his right to make representations to OFCOM within that period about the
matters appearing to OFCOM to provide grounds for revoking the licence.
(3) The
effect of a notice under subsection (2) shall be to suspend the licence as from
the time when the notice is served on the licence holder until either –
(a) the revocation of the
licence takes effect; or
(b) OFCOM decide not to
revoke the licence.
(4) If,
after considering any representations made to them by the licence holder within
the period specified for the purposes of subsection (2)(c), OFCOM are satisfied
that it is necessary in the public interest to revoke the licence, they shall
serve a notice of revocation on the licence holder.
(5) The
revocation of a licence by a notice under subsection (4) takes effect from such
time as may be specified in the notice.
(6) A
notice of revocation under subsection (4) must not specify a time for it to
take effect that falls before the end of the period of twenty-eight days
beginning with the day on which the notice is served on the licence holder.
240 Abolition of separate licences for certain
television services
(1) The
authorisations that are to be capable of being granted on or after the
television transfer date by or under a licence under Part 1 of the 1990
Act do not include the authorisation of the provision, as such, of –
(a) any satellite television
service (as defined, disregarding its repeal by this Act, in section 43(1) of
the 1990 Act);
* * *
(b) * * * * *
(2) Subsection
(1) does not affect OFCOM’s power, by means of a licence authorising the
provision of a service falling within section 211(1), to authorise the
provision of so much of any formerly regulated television service as is
comprised in the licensed service.
(3) So
much of any relevant existing licence as authorises the provision of a service
which consists in or includes a television licensable content service –
(a) shall have effect, on and
after the television transfer date, as a licence under Part 1 of the 1990
Act authorising the provision of the television licensable content service
comprised in the licensed service;
(b) shall so have effect as a
licence which, notwithstanding its terms and conditions, is to continue in
force until such time as it is surrendered or is revoked in accordance with
provisions of this Chapter or of the 1990 Act; and
(c) shall otherwise have
effect as a licence on the same terms and conditions as those on which it had effect
immediately before the television transfer date.
(4) It
shall be the duty of OFCOM to exercise their power under section 3 of the 1990
Act to make such variations of any licence having effect in accordance with
subsection (3) of this section as (after complying with subsection (4)(b)
of that section) they consider appropriate for the purpose of performing their
duty under section 263 of this Act.
(5) In
this section –
“formerly regulated
television service” means a service mentioned in subsection (1); and
“relevant existing
licence”, means any licence which –
(a) was granted by the
Independent Television Commission under Part 1 of the 1990 Act before the
television transfer date; and
(b) is in force immediately
before the television transfer date as a licence authorising the provision of a
formerly regulated service.
Television
multiplex services
241 Television multiplex services
(1) Subject
to the following provisions of this section, references in Part 1 of the
1996 Act to a multiplex service, other than those comprised in express
references to a general multiplex service, shall have effect as references to
any service (“a television multiplex service”) which –
(a) falls within subsection
(2); and
(b) is provided for
broadcasting for general reception but otherwise than from a satellite.
(2) A
service falls within this subsection if –
(a) it consists in the
packaging together of two or more services which include at least one relevant
television service and are provided for inclusion together in the service by a
combination of the relevant information in digital form; or
(b) it is a service provided
with a view to its being a service falling within paragraph (a) but is one
in the case of which only one service is for the time being comprised in
digital form in what is provided.
(3) The
provision, at a time after the commencement of this section, of a television
multiplex service the provision of which is not authorised by or under a
licence under Part 1 of the 1996 Act is not to be an offence under section
13 of the 1990 Act.
(4) Accordingly,
after the commencement of this section, a licence under Part 1 of the 1996
Act shall be required for the provision of a television multiplex service only
in so far as it is required for the purposes of a limitation falling within
subsection (5) that is contained in a wireless telegraphy licence, or is
deemed to be so contained.
(5) A
limitation falls within this subsection, in relation to a wireless telegraphy
licence, if it provides that the only television multiplex services that are
authorised to be broadcast using the station or apparatus to which the licence
relates are those that are licensed under Part 1 of the 1996 Act.
(6) Where
immediately before the coming into force of this section –
(a) a television multiplex
service is licensed under Part 1 of the 1996 Act; and
(b) that service is one
broadcast using a station or apparatus the use of which is authorised by a
wireless telegraphy licence,
that wireless telegraphy
licence shall be deemed to contain a limitation falling within subsection (5).
(7) In
any case where a wireless telegraphy licence is deemed by virtue of subsection
(6) to contain a limitation falling within subsection (5) and the person
providing the television multiplex service in question –
(a) ceases to be licensed
under Part 1 of the 1996 Act in respect of that service, or
(b) ceases to exist,
OFCOM may revoke the
wireless telegraphy licence.
(8) Subsection (7)
is not to be construed as restricting the powers of revocation exercisable
apart from this section.
(9) In
subsection (2) “relevant television service” means any of the
following –
(a) any Channel 3 service in
digital form;
(b) Channel 4 in digital
form;
(c) Channel 5 in digital
form;
(d) * * * * *
(e) any digital television
programme service;
(f) the digital public
teletext service.
242 Composition of services in television
multiplexes
(1) In
subsection (1) of section 12 of the 1996 Act –
(a) in paragraph (c),
(digital programmes services included in multiplex must be provided by a
licence holder or EEA broadcaster), after “section 18” there shall be inserted
“, by the BBC”;
(b) in paragraph (d),
(digital additional services included in multiplex must be provided by a
licence holder or EEA broadcaster), after “section 25” there shall be inserted
“, by the BBC”;
(c) after that paragraph
there shall be inserted –
“(da) that the only digital
sound programme services broadcast under the licence are services provided by
the holder of a national digital sound programme licence (within the meaning of
section 60) or by the BBC;”
(d) in paragraph (e),
after “digital programme services” there shall be inserted “, digital sound
programme services”;
(e) in paragraph (f),
after “digital programme service” there shall be inserted “, a digital sound
programme service”; and
(f) for paragraph (h)
(conditions as to composition of multiplex service), there shall be
substituted –
“(h) that, while the licence
is in force, at least the required percentage of the digital capacity on the
frequency or frequencies on which the service is broadcast is used, or left
available to be used, for the broadcasting of services falling within
subsection (1A).”
(2) After
that subsection there shall be inserted –
“(1A) The services falling within this subsection
are –
(a) qualifying services;
(b) digital programme
services licensed under this Part or provided by the BBC;
(c) digital sound programme
services provided by the BBC;
(d) programme-related
services; and
(e) relevant technical
services.”
(3) In
subsection (3) of that section –
(a) after the words “digital
programme services”, in the first place where they occur, there shall be
inserted “or digital sound programme services”; and
(b) for “digital programme
services broadcast under the licence” there shall be substituted “so much of
what is broadcast under the licence as consists of digital programme services,
or of such services together with digital sound programme services,”.
(4) In
subsection (4) of that section (interpretation of subsection (1)(h)) –
(a) for “(1)(h)” there shall
be substituted “(1A)”;
(b) in paragraph (a),
for “the qualifying teletext service” there shall be substituted “the digital
public teletext service”;
(c) in paragraph (b)(i),
after “the 1990 Act)” there shall be inserted “, or in one or more digital
sound programme services provided by the BBC,”
(d) in paragraph (c),
for “digital programme services” there shall be substituted “services falling
within subsection (1A) which are comprised in the multiplex in question”.
(5) After
that subsection there shall be inserted –
“(4A) In subsection (1)(h), the reference to the
required percentage is a reference to such percentage equal to or more than 90
per cent. as OFCOM –
(a) consider appropriate;
and
(b) specify in the
condition.”
(6) In
subsection (5) of that section (power to change percentage in subsection
(1)(h)), for “(1)(h)” there shall be substituted “(4A)”.
243 Powers where frequencies reserved for
qualifying services
(1) The
Secretary of State may by order provide, in relation to the matters mentioned
in subsection (2) –
(a) for any or all of the
provisions of sections 7 to 16 and of sections 18 and 19 of the 1996 Act to
have effect with the modifications specified in the order; and
(b) for provision made by the
order to have effect in place of any or all of those provisions.
(2) Those
matters are –
(a) licences under Part 1
of the 1996 Act, and
(b) the awarding and grant of
such licences,
in a case in which the
licence is, or is to be, a licence to provide a service for broadcasting on any
one or more reserved frequencies.
(3) An
order under this section may require OFCOM to include conditions falling within
subsection (4) in any Broadcasting Act licence to provide a television
multiplex service to be broadcast on a reserved frequency.
(4) Conditions
falling within this subsection are conditions that OFCOM consider appropriate
for securing that, in consideration for the making by any relevant public service
broadcaster of such payments as are from time to time –
(a) agreed between the
broadcaster and the holder of the licence to provide the television multiplex
service, or
(b) in default of agreement,
determined by OFCOM in accordance with the order,
the holder of that licence
will use digital capacity reserved in accordance with conditions imposed under
section 12 of the 1996 Act or any order under this section for the
broadcasting of services provided by that broadcaster.
(5) Subsection
(3) is not to be construed as restricting the provision that may be made under
subsection (1).
(6) A
frequency is a reserved frequency for the purposes of this section if it is one
as respects which OFCOM have made a determination, in exercise of their
functions under the enactments relating to the management of the radio
spectrum, that the frequency should be reserved for the broadcasting of
television multiplex services.
(7) In
this section “relevant public service broadcaster” means any of the
following –
(a) the holder of a licence
to provide a Channel 3 service;
(b) C4C;
(c) the holder of a licence
to provide Channel 5;
(d) * * * * *
(e) the public teletext
provider.
Local
digital television services
244 Local digital television services
(1) The
Secretary of State may by order provide for –
(a) any of the provisions of
this Part (apart from this section and the provisions relating exclusively to
sound services), or
(b) any provision of Part 1
of the 1990 Act or of Part 1 of the 1996 Act (regulation of television
services),
to have effect, in
relation to services of such descriptions as may be set out in an order under
this section, with such modifications as he considers necessary or appropriate
for services of that description.
(2) The
Secretary of State is not to make an order under this section in relation to a
description of services except where –
(a) the description is of
services to be provided in digital form with a view to their being included in
a television multiplex service;
(b) the description is
confined to services falling within one or both of subsections (3) and (4); and
(c) the Secretary of State is
satisfied that the making of an order under this section in relation to that
description of services will make possible, facilitate or encourage the
provision of services so falling.
(3) Services
fall within this subsection if they are –
(a) intended for reception
only at a particular establishment or otherwise on particular premises; or
(b) provided for the purposes
only of a particular event.
(4) Services
fall within this subsection if the Secretary of State considers that they are
services in relation to which all the following conditions are satisfied –
(a) they are intended for
reception only within a particular area or locality;
(b) their provision meets, or
would meet, the needs of the area or locality where they are received;
(c) their provision is or
would be likely to broaden the range of television programmes available for
viewing by persons living or working in that area or locality; and
(d) their provision is or
would be likely to increase the number and range of the programmes about that
area or locality that are available for such viewing, or to increase the number
of programmes made in that area or locality that would be so available.
(5) Services
shall be taken for the purposes of subsection (4) to meet the needs of an area
or locality if, and only if –
(a) their provision brings
social or economic benefits to the area or locality, or to different categories
of persons living or working in that area or locality; or
(b) they cater for the
tastes, interests and needs of some or all of the different descriptions of
people living or working in the area or locality (including, in particular,
tastes, interests and needs that are of special relevance in the light of the
descriptions of people who do so live and work).
(6) In
subsections (4) and (5), the references to persons living or working in an area
or locality include references to persons undergoing education or training in
that area or locality.
(7) An
order under this section in relation to a description of services may, in
particular, impose prohibitions or limitations on the inclusion of
advertisements in services of that description and on the sponsorship of
programmes included in the services.
(8) The
power, by an order under this section, to make incidental, supplemental or
consequential provision in connection with provision authorised by subsection
(1) includes power to make incidental, supplemental or consequential provision
modifying provisions of the 1990 Act, the 1996 Act or this Act that are not
mentioned in that subsection.
(9) * * * * *
CHAPTER 3
REGULATORY
STRUCTURE FOR INDEPENDENT RADIO SERVICES
Preliminary
245 Regulation of independent radio services
(1) It
shall be a function of OFCOM to regulate the following services in accordance
with this Act, the 1990 Act and the 1996 Act –
(a) services specified in
subsection (2) that are provided from places in the United Kingdom [and the
Bailiwick of Jersey] and otherwise than by the BBC;
(b) services so specified
that do not fall within paragraph (a) but are provided by a person, other
than the BBC, whose principal place of business is in the United Kingdom [and
the Bailiwick of Jersey].
(2) The
services referred to in subsection (1)(a) are –
(a) sound broadcasting
services to which subsection (3) applies;
(b) radio
licensable content services;
(c) additional radio
services;
(d) * * * * *
(e) * * * * *
(f) * * * * *
(3) This
subsection applies to a sound broadcasting service which –
(a) is provided with a view
to its being broadcast otherwise than only from a satellite; and
(b) is a national service,
local service or restricted service.
(4) For
the purposes of this section –
(a) a service is a national
service if it is a sound broadcasting service provided as mentioned in subsection
(3)(a) with a view to its being broadcast for reception in any such minimum
area of the United Kingdom [and the Bailiwick of Jersey] as may be determined
in accordance with section 98(2) of the 1990 Act;
(b) a service is a local
service if it is a sound broadcasting service which (without being a national
service) is provided as mentioned in subsection (3)(a) with a view to its being
broadcast for reception in a particular area or locality in the United Kingdom
[and the Bailiwick of Jersey]; and
(c) a service is a restricted
service if it is a sound broadcasting service provided as mentioned in
subsection (3)(a) with a view to its being broadcast for reception –
(i) within a particular establishment in the
United Kingdom [and the Bailiwick of Jersey] or at another defined location in
the United Kingdom [and the Bailiwick of Jersey]; or
(ii) for the purposes of a
particular event taking place within the United Kingdom [and the Bailiwick of
Jersey].
(5) The
services that are to be treated for the purposes of this section as provided
from places in the United Kingdom [and the Bailiwick of Jersey] include every
radio licensable content service which would not fall to be so treated apart
from this subsection but which –
(a) is provided with a view
to its being broadcast from a satellite;
(b) is a service the
broadcasting of which involves its transmission to the satellite by means of an
electronic communications network from a place in the United Kingdom [and the
Bailiwick of Jersey]; and
(c) is not a service the
provision of which is licensed or otherwise authorised under the laws of
another EEA State.
(6) The
services that are to be treated as so provided also include every service
provided by a BBC company [or], a C4 company
* * *.
(7) * * * * *
246 Abolition of function of assigning radio
frequencies
The Secretary of State
shall cease to have any function under the 1990 Act or the 1996 Act of assigning
frequencies –
(a) for
any of the purposes of Part 3 of the 1990 Act (regulation of radio
services); or
(b) for
the purposes of the provision of any radio multiplex services.
Radio
licensable content services
247 Meaning of “radio licensable content services”
(1) In
this Part “radio licensable content service” means (subject to
section 248) any service falling within subsection (2) in so far as
it is provided with a view to its availability for reception by members of the
public being secured by one or both of the following means –
(a) the broadcasting of the
service (whether by the person providing it or by another) from a satellite; or
(b) the distribution of the
service (whether by that person or by another) by any means involving the use
of an electronic communications network.
(2) A
service falls within this subsection if it –
(a) consists of sound
programmes; and
(b) is provided (whether in
digital or in analogue form) as a service that is to be made available for
reception by members of the public.
248 Services that are not radio licensable
content services
(1) A
service is not a radio licensable content service to the extent that –
(a) it is provided with a
view to its being broadcast by means of a multiplex service;
(b) it is a sound broadcasting
service to which subsection (3) of section 245 applies; or
(c) it is comprised in a
television licensable content service.
(2) A
service is not a radio licensable content service to the extent that it is
provided by means of an electronic communications service if –
(a) it forms part only of a
service provided by means of that electronic communications service or is one
of a number of services access to which is made available by means of a service
so provided; and
(b) the service of which it
forms part, or by which it may be accessed, is provided for purposes that do
not consist wholly or mainly in making available services of radio programmes
or television programmes (or both) for reception by members of the public.
(3) A
service is not a radio licensable content service if it is a two-way service.
(4) A
service is a two-way service for the purposes of subsection (3) if it is
provided by means of an electronic communications network and an essential
feature of the service is that the purposes for which it is provided involve
the use of that network, or a part of it, both –
(a) for the transmission of
sounds by the person providing the service to users of the service; and
(b) for the transmission of
sounds by those users for reception by the person providing the service or by
other users of the service.
(5) A
service is not a radio licensable content service if –
(a) it is distributed by
means of an electronic communications network only to persons all of whom are
on a single set of premises; and
(b) that network is wholly
within those premises and is not connected to an electronic communications
network any part of which is outside those premises.
(6) For
the purposes of subsection (5) –
(a) a set of premises is a
single set of premises if, and only if, the same person is the occupier of all
the premises; and
(b) two or more vehicles are
capable of constituting a single set of premises if, and only if, they are
coupled together.
(7) A
service is not a radio licensable content service if it is provided for the
purpose only of being received by persons who have qualified as users of the
service by reason of being –
(a) persons who have a
business interest in the programmes included in the service; or
(b) persons who are to
receive the programmes for the purpose only of allowing them to be listened to
by persons falling within sub-paragraph (a) or by persons all of whom are
on the business premises of the person receiving them.
(8) For
the purposes of subsection (7) a person has a business interest in programmes
if he has an interest in receiving or listening to them –
(a) for the purposes of a
business carried on by him; or
(b) for the purposes of his
employment.
(9) In
this section –
“business premises”, in
relation to a person, means premises at or from which any business of that
person is carried on;
“multiplex service” means
a television multiplex service, a radio multiplex service or a general
multiplex service;
“premises” includes a
vehicle;
“vehicle” includes a
vessel, aircraft or hovercraft.
(10) References
in this section, in relation to a person, to a business include references
to –
(a) any business or other
activities carried on by a body of which he is a member and the affairs of
which are managed by its members; and
(b) the carrying out of any
functions conferred on that person, or on any such body, by or under any
enactment.
249 Modification of ss. 247 and 248
(1) The
Secretary of State may by order modify any of the provisions of section 247 or
248 if it appears to him appropriate to do so having regard to any one or more
of the following –
(a) the protection which is
expected by members of the public as respects the contents of sound programmes;
(b) the practicability of
applying different levels of regulation in relation to different services;
(c) the financial impact for
providers of particular services of any modification of the provisions of that
section; and
(d) technological
developments that have occurred or are likely to occur.
(2) The
Secretary of State may also by order provide, in cases where it otherwise
appears to him appropriate to do so, that a description of service specified in
the order is not to be treated as a radio licensable content service for the
purposes of the provisions of this Act that are so specified.
(3) *
* * * *
250 Licensing of radio licensable content
services
(1) The
licence that is required for the purposes of section 97 of the 1990 Act in
respect of a radio licensable content service is a licence granted under Part 3
of that Act on an application complying with this section.
(2) An
application for a licence under Part 3 of the 1990 Act to provide a radio
licensable content service –
(a) must be made in such
manner,
(b) must contain such
information about the applicant, his business and the service he proposes to
provide, and
(c) must be accompanied by
such fee (if any),
as OFCOM may determine.
(3) Sections
109 to 111A of the 1990 Act (enforcement of licences) apply in relation to
licences for radio licensable content services as they apply in relation to
licences under Chapter 2 of Part 3 of the 1990 Act but with –
(a) the substitution of the
word “or” for paragraph (b) of subsection (1) of section 110 (power to
shorten licence period); and
(b) the omission of “(b)” in
subsection (4) of that section and of subsection (5) of that section (which
refer to the power disapplied by paragraph (a) of this subsection).
251 Abolition of separate licences for certain
sound services
(1) The
authorisations that are to be capable of being granted on or after the radio
transfer date by or under a licence under Part 3 of the 1990 Act do not
include the authorisation of the provision, as such, of –
(a) any satellite service (as
defined, disregarding its repeal by this Act, in section 84(2)(b) of the 1990
Act); or
(b) any licensable sound
programme service (as defined, disregarding its repeal by this Act, in section
112(1) of that Act).
(2) Subsection
(1) does not affect OFCOM’s power, by means of a licence authorising the
provision of a service falling within section 245(1), to authorise the
provision of so much of any formerly regulated radio service as is comprised in
the licensed service.
(3) So
much of any relevant existing licence as authorises the provision of a service
which consists in or includes a radio licensable content service –
(a) shall have effect, on and
after the radio transfer date, as a licence under Part 3 of the 1990 Act
authorising the provision of the radio licensable content service comprised in
the licensed service;
(b) shall so have effect as a
licence which, notwithstanding its terms and conditions, is to continue in
force until such time as it is surrendered or is revoked in accordance with provisions
of the 1990 Act; and
(c) shall otherwise have
effect as a licence on the same terms and conditions as those on which it had
effect immediately before the radio transfer date.
(4) It
shall be the duty of OFCOM to exercise their power under section 86 of the 1990
Act to make such variations of any licence having effect in accordance with
subsection (3) of this section as (after complying with subsection (5)(b) of
that section) they consider appropriate for the purpose of performing their
duty under section 263 of this Act.
(5) In
this section –
“formerly regulated radio
service” means a service mentioned in subsection (1); and
“relevant existing
licence” means any licence which –
(a) was granted by the Radio
Authority under Part 3 of the 1990 Act before the radio transfer date; and
(b) is in force immediately
before the radio transfer date as a licence authorising the provision of a
formerly regulated service.
Licence
periods etc.
252 Extension of licence periods
(1) In
subsection (1) of section 86 of the 1990 Act (period of licences), for the
words from “for such period” onwards there shall be substituted “(subject to a
suspension of the licence under section 111B) –
(a) in the case of a licence
to provide radio licensable content services, until such time as it is
surrendered or is revoked in accordance with any of the following provisions of
this Part; and
(b) in any other case, until
whichever is the earlier of any such time or the end of the period specified in
the licence.”
(2) For
subsection (3) of that section there shall be substituted –
“(3) A licence to provide a local or national
service or to provide an additional service must specify a period of no more
than twelve years as the period for which it is to be in force.”
253 Extension and modification of existing
licences
(1) A
person who immediately before the radio transfer date holds a pre-transfer
national licence or a pre-transfer local licence is entitled, in accordance
with the following provisions of this section, to apply to OFCOM for an
extension of the licence.
(2) The
period for which a licence may be extended on such an application is a period
ending not more than four years after the end of the period for which it was
granted originally or (if it has been renewed) for which it was last renewed.
(3) An
application under subsection (1) may only be made in the period
which –
(a) begins three years before
the date on which the licence would otherwise expire; and
(b) ends three months before
the day that OFCOM have determined to be the day by which they would need to
publish a notice under section 98(1) or 104(1) of the 1990 Act if they were
proposing to grant a fresh licence to take effect from that date.
(4) A
determination for the purposes of subsection (3)(b) –
(a) must be made at least one
year before the day determined; and
(b) must be notified by OFCOM
to the person who holds the licence in question.
(5) An
application under subsection (1) –
(a) must be made in such
manner,
(b) must contain such
information about the applicant, his business and the service he proposes to
provide, and
(c) must be accompanied by
such fee (if any),
as OFCOM may determine.
(6) If,
on an application for an extension under subsection (1), OFCOM are satisfied as
to the matters mentioned in subsection (7), they shall –
(a) modify the licence by
extending the period for which the licence is to be in force by such period
authorised by subsection (2) as they think fit; and
(b) make such other
modifications as appear to them to be necessary for the purpose of securing
that the provisions of the licence correspond to those that would be contained
in a national sound broadcasting licence or (as the case may be) a local sound
broadcasting licence granted after the radio transfer date.
(7) Those
matters are –
(a) the ability of the
licence holder to maintain the service for the period of the extension; and
(b) the likelihood of a
contravention by the licence holder of a requirement imposed by –
(i) a condition included in the licence by
virtue of section 106 of the 1990 Act; or
(ii) a condition of the
licence varied in accordance with subsection (8).
(8) For
the purposes of the modification under this section of a national licence,
OFCOM –
(a) shall determine an amount
which is to be payable to OFCOM by the licence holder in respect of the first
complete calendar year falling within the period for which the licence is
extended; and
(b) may, in relation to any
accounting period of the licence holder during the period of the extension,
modify a condition included in the licence in pursuance of
section 102(1)(c) of the 1990 Act (additional payments to be made in
respect of national licences) by specifying a different percentage of the
qualifying revenue for that accounting period from that which was previously
specified in the condition.
(9) The
amount determined by OFCOM under subsection (8)(a) must be the amount which, in
OFCOM’s opinion, would have been the cash bid of the licence holder were the
licence (instead of being extended) being granted afresh on an application made
in accordance with section 98 of the 1990 Act.
(10) For
the purposes of subsection (8)(b) –
(a) different percentages may
be specified for different accounting periods; and
(b) the percentages that may
be specified for an accounting period include a nil percentage.
(11) The
modifications set out in accordance with subsection (6)(b) must
secure –
(a) that the amount falling
to be paid under the conditions of the licence for each calendar year
subsequent to that for which an amount has been determined in accordance with
subsection (8)(a) is the amount so determined as increased by the appropriate
percentage; and
(b) that such adjustments as
are appropriate are made as respects sums already paid in respect of any year
or accounting period to which a modification under subsection (8) applies.
(12) Where
OFCOM have granted a person’s application under this section, the extensions
and modifications take effect only if that person –
(a) has been notified by
OFCOM of their proposals for modifications by virtue of subsection (6)(b) or
(8)(b), and for the making of a determination under subsection (8)(a); and
(b) has consented to the
extension on the terms proposed.
(13) In
this section –
“the appropriate
percentage” has the same meaning as in section 102 of the 1990 Act;
“national sound
broadcasting licence” means a licence under Part 3 of the 1990 Act to
provide a sound broadcasting service which, under subsection (4)(a) of section
245 is a national service for the purposes of that section;
“pre-transfer licence”
means a licence which was granted under Part 3 of the 1990 Act before the
radio transfer date and has not been modified under this section or renewed at
any time on or after that date;
“pre-transfer local
licence” means a pre-transfer licence which was granted as a local licence
(within the meaning of Part 3 of the 1990 Act, as it had effect without
the amendments made by this Act);
“pre-transfer national
licence” means a pre-transfer licence granted or last renewed as a national
licence (within the meaning of Part 3 of the 1990 Act, as it had effect
without the amendments made by this Act).
254 Renewal of local licences
* *
*
*
*
*
*
255 Extension of special application procedure
for local licences
* *
*
*
*
*
*
Provision
of simulcast radio services
256 Definition of simulcast radio services
(1) In
section 41 of the 1996 Act (meaning of simulcast radio service), for subsection
(2) there shall be substituted –
“(2) In this Part, a ‘simulcast radio service’
means a service provided by a person for broadcasting in digital form and
corresponding to a service which is a national service within the meaning of
Part 3 of the 1990 Act and is provided by that person.”
(2) In
subsection (1) of section 126 of the 1990 Act (interpretation of Part 3),
before the definition of “sound broadcasting service” there shall be
inserted –
“ ‘simulcast radio service’ means a simulcast radio service within
the meaning given by section 41(2) of the Broadcasting Act 1996 for the
purposes of Part 2 of that Act;”.
(3) After
that subsection there shall be inserted –
“(1A) For the purposes of this Part a simulcast radio
service corresponds to a national service if, in accordance with section 41(3)
of the Broadcasting Act 1996,
it falls to be treated as so corresponding for the purposes of Part 2 of
that Act.”
257 Promotion of simulcast radio services
(1) Chapter
2 of Part 3 of the 1990 Act (sound broadcasting services) shall be amended
as follows.
(2) In
section 98(1) (notices of proposals to grant national licences), after
paragraph (b)(ii) there shall be inserted –
“(iia) the digital capacity that is likely, in their
opinion, to be available from the holders of national radio multiplex licences
for the broadcasting of a simulcast radio service corresponding to the
service;”.
(3) In
section 98(3) (applications for national licences), after paragraph (a)
there shall be inserted –
“(aa) the applicant’s
proposals (if any) for providing a simulcast radio service corresponding to the
service;”.
(4) In
section 98(7) (construction of section), after “this section” there shall be
inserted –
“ ‘national radio multiplex licence’ has the same meaning as in Part 2
of the Broadcasting Act 1996;
and”.
(5) In
section 100 (award of national licence to person submitting highest cash bid),
for subsection (2) there shall be substituted –
“(1A) If, in a case in which one or more of the
applicants has made a proposal to provide a simulcast radio service
corresponding to the service to be licensed (a ‘simulcast applicant’), the
highest cash bid is made by an applicant who is not a simulcast applicant, OFCOM
may –
(a) disregard the
requirement imposed by subsection (1); and
(b) award the licence to
the simulcast applicant whose cash bid is the highest of the bids submitted by
simulcast applicants.
(a) two or more applicants
for a licence have submitted cash bids specifying an identical amount and that
amount is higher than the amount of every other bid, or
(b) two or more simulcast
applicants have submitted cash bids specifying an identical amount and that
amount is higher than the amount of every other bid submitted by a simulcast
applicant,
OFCOM must invite those applicants and (in a case falling within
paragraph (b)) every applicant who has made a higher bid to submit further
cash bids in respect of that licence.
(2A) OFCOM may decide not to invite an applicant to
submit a further cash bid under subsection (2) if –
(a) the applicant is not a
simulcast applicant and they propose to exercise their power under subsection
(1A); or
(b) they propose to
exercise their power under subsection (3).
(2B) Subsection (2A) is not to be construed as
preventing OFCOM from making a decision to exercise their power under
subsection (1A) or (3) after they have received further bids in response to
invitations under subsection (2).
(2C) In this Part references to a person’s cash
bid, in relation to a person who has submitted a further cash bid in pursuance
of subsection (2), have effect as references to his further bid.”
(6) After
section 100 there shall be inserted –
“100A Licence conditions
relating to simulcast radio services
Where OFCOM award a national licence to a person whose application
for that licence included proposals to provide a simulcast radio service, that
licence must include a condition requiring the licence holder –
(a) to provide, from a date specified in the
licence, a simulcast radio service corresponding to the licensed service; and
(b) to do all that he can to secure the
broadcasting of that service.”
Multiplexes
broadcasting sound programmes
258 Radio multiplex services
(1) Subject
to the following provisions of this section, references in Part 2 of the
1996 Act to a radio multiplex service shall have effect as references to any
service which –
(a) falls within subsection
(2);
(b) is provided for
broadcasting for general reception but otherwise than from a satellite; and
(c) is not a television
multiplex service.
(2) A
service falls within this subsection if –
(a) it consists in the
packaging together (with or without other services) of two or more relevant
sound services which are provided for inclusion together in that service by a
combination of the relevant information in digital form; or
(b) it is a service provided
with a view to its being a service falling within paragraph (a) but is one
in the case of which only one relevant sound service is for the time being
comprised in digital form in what is provided.
(3) The
provision, at a time after the commencement of this section, of a radio
multiplex service the provision of which is not authorised by or under a
licence under Part 2 of the 1996 Act is not to be an offence under section
97 of the 1990 Act.
(4) Accordingly,
after the commencement of this section, a licence under Part 2 of the 1996
Act shall be required for the provision of a radio multiplex service only in so
far as it is required for the purposes of a limitation falling within
subsection (5) which is contained in a wireless telegraphy licence, or is
deemed to be so contained.
(5) A
limitation falls within this subsection, in relation to a wireless telegraphy
licence, if it provides that the only radio multiplex services that are
authorised to be broadcast using the station or apparatus to which the licence
relates are those that are licensed under Part 2 of the 1996 Act.
(6) Where
immediately before the coming into force of this section –
(a) a radio multiplex service
is licensed under Part 2 of the 1996 Act; and
(b) that service is one
broadcast using a station or apparatus the use of which is authorised by a
wireless telegraphy licence,
that wireless telegraphy
licence shall be deemed to contain a limitation falling within subsection (5).
(7) In
any case where a wireless telegraphy licence is deemed by virtue of subsection
(6) to contain a limitation falling within subsection (5) and the person
providing the radio multiplex service in question –
(a) ceases to be licensed
under Part 2 of the 1996 Act in respect of that service, or
(b) ceases to exist,
OFCOM may revoke the
wireless telegraphy licence.
(8) Subsection
(7) is not to be construed as restricting the powers of revocation exercisable
apart from this section.
(9) In
subsection (2) “relevant sound service” means any of the following –
(a) a digital sound programme
service;
(b) a simulcast radio
service; and
(c) a digital additional
sound service.
259 Composition of services in radio multiplexes
(1) Section
54 of the 1996 Act (conditions attached to radio multiplex licences) shall be
amended as follows.
(2) For
paragraph (h) of subsection (1) (conditions as to composition of service)
there shall be substituted –
“(h) that, while the licence
is in force, at least the required percentage of the digital capacity on the
frequency or frequencies on which the service is broadcast is used, or left
available to be used, for the broadcasting of services falling within
subsection (1A).”
(3) After
that subsection there shall be inserted –
“(1A) The services falling within this subsection
are –
(a) digital sound programme
services;
(b) simulcast radio
services;
(c) programme-related
services; and
(d) relevant technical
services.”
(4) In
subsection (2) (meaning of services referred to in paragraph (h) of
subsection (1)) –
(a) for “paragraph (1)(h)”
there shall be substituted “subsection (1A)”; and
(b) in sub-paragraph (i),
for the words from “(within” to “1990 Act” there shall be substituted “(within
the meaning of section 245 of the Communications Act 2003)”.
(5) After
that subsection there shall be inserted –
“(2A) In subsection (1)(h), the reference to the
required percentage is a reference to such percentage equal to or more than 80
per cent. as OFCOM –
(a) consider appropriate;
and
(b) specify in the
condition.”
(6) In
subsection (3) (power to vary percentage in subsection (1)(h)) –
(a) for “subsection (1)”
there shall be substituted “subsection (2A)”; and
(b) for “paragraph (h)
of that subsection” there shall be substituted “that subsection”.
260 Digital sound services for inclusion in
non-radio multiplexes
(1) In
section 60(1)(a) of the 1996 Act (national digital sound programme services
defined as services broadcast with a view to being broadcast by means of a
national radio multiplex service), after “national radio multiplex service”
there shall be inserted “, by means of a television multiplex service or by
means of a general multiplex service”.
(2) In
section 63(1) of the 1996 Act (meaning of digital additional sound service),
for paragraph (a) there shall be substituted –
“(a) is provided by a person
with a view to its being broadcast in digital form (whether by him or some
other person) so as to be available for reception by members of the public;
(aa) is so provided with a
view to the broadcasting being by means of a radio multiplex service or by
means of a general multiplex service; and”.
(3) After
subsection (3) of section 63 of the 1996 Act there shall be
inserted –
“(3A) In this section ‘available for reception by
members of the public’ shall be construed in accordance with section 361
of the Communications Act 2003.”
(4) In
section 72(1) of the 1996 Act (interpretation of Part 2) –
(a) after the definitions of
“digital sound programme service” and “digital sound programme licence” there
shall be inserted –
“ ‘general multiplex service’ has the same meaning as in Part 3
of the Communications Act 2003;”
(b) after the definition of
“technical service” there shall be inserted –
“ ‘television multiplex service’ has the meaning given by
section 241 of the Communications
Act 2003.”
261 Renewal of radio multiplex licences
In section 58(2) of the
1996 Act (renewal for twelve years of radio multiplex licences granted within
six years of commencement) –
(a) for
“which is granted within six years” there shall be substituted “granted within
ten years”; and
(b) for
the words from “for a period” onwards there shall be substituted –
“(a) in the case of a
licence granted within six years of that commencement, for a period of twelve
years beginning with the date on which it would otherwise expire; and
(b) in any other case, for
a period of eight years beginning with that date.”
Community
radio
262 Community radio
(1) The
Secretary of State may by order provide for –
(a) any of the provisions of
this Part (apart from this section and the provisions relating exclusively to
television), or
(b) any provision of Part 3
of the 1990 Act or of Part 2 of the 1996 Act (regulation of radio
services),
to have effect, in
relation to services of such descriptions as may be set out in an order under
this section, with such modifications as he considers necessary or appropriate
for services of that description.
(2) The
Secretary of State is not to make an order under this section in relation to a
description of services unless –
(a) the description is of
services to be provided primarily for the good of members of the public or of a
particular community, rather than for commercial reasons; and
(b) he considers that the
provision of services of that description confer, or would confer, significant
benefits on the public or on the communities for which they are provided.
(3) An
order under this section in relation to a description of services may, in
particular, impose prohibitions or limitations on the inclusion of
advertisements in services of that description and on the sponsorship of
programmes included in the services.
(4) The
power, by an order under this section, to make incidental, supplemental or
consequential provision in connection with provision authorised by
subsection (1) includes power to make incidental, supplemental or
consequential provision modifying provisions of the 1990 Act, the 1996 Act or
this Act that are not mentioned in that subsection.
(5) No
order is to be made containing provision authorised by this section unless a
draft of the order has been laid before Parliament and approved by a resolution
of each House.
CHAPTER 4
REGULATORY
PROVISIONS
Application
of regulatory regimes
263 Application of regulatory regimes
(1) It
shall be the duty of OFCOM, by exercising –
(a) their powers under the
1990 Act and the 1996 Act, and
(b) their powers under this
Part,
to secure that the holder
of every Broadcasting Act licence at all times holds his licence on the
conditions which are for the time being included, under this Chapter and
Chapter 5 of this Part, in the regulatory regime for the licensed service.
(2) It
shall also be the duty of OFCOM to do all that they can to secure that the
holder of every such licence complies, in relation to the licensed service,
with the conditions so included in the regulatory regime for that service.
(3) Where –
(a) the licence for a Channel
3 service, for Channel 4, for Channel 5 or for the public teletext service
(“the main service”) authorises or requires a corresponding or additional
service to be provided in analogue form, and
(b) the regulatory regime for
the main service imposes obligations in relation to programmes and other items
included in that service,
those obligations are to
apply equally to programmes that are included in the analogue service without
being included in the main service.
(4) The
Secretary of State may by order provide for conditions which are included by
virtue of a provision of this Act in the regulatory regime for any service to
cease to be so included.
(5) * * * * *
(6) This
section does not restrict OFCOM’s powers and duties apart from this section to
impose obligations by means of the inclusion of conditions in a Broadcasting
Act licence.
The
public service remit for television
264 OFCOM reports on the fulfilment of the
public service remit
(1) It
shall be the duty of OFCOM –
(a) as soon as practicable
after the end of the period of twelve months beginning with the commencement of
this section, and
(b) as soon as practicable
after the end of each such subsequent period as may be selected by OFCOM for
the purposes of this section,
to satisfy, for that
period, the review and reporting obligations of subsection (3).
(2) The
period selected by OFCOM for the purposes of subsection (1)(b) must be a period
of not more than five years beginning with the end of the previous period for
which OFCOM have satisfied those review and reporting obligations.
(3) The
review and reporting obligations for a period are –
(a) an obligation to carry
out a review of the extent to which the public service broadcasters have,
during that period, provided relevant television services which (taking them
all together over the period as a whole) fulfil the purposes of public service
television broadcasting in the United Kingdom [and the Bailiwick of Jersey];
and
(b) an obligation, with a
view to maintaining and strengthening the quality of public service television
broadcasting in the United Kingdom [and the Bailiwick of Jersey], to prepare a
report on the matters found on the review.
(4) The
purposes of public service television broadcasting in the United Kingdom [and
the Bailiwick of Jersey] are –
(a) the provision of relevant
television services which secure that programmes dealing with a wide range of
subject-matters are made available for viewing;
(b) the provision of relevant
television services in a manner which (having regard to the days on which they
are shown and the times of day at which they are shown) is likely to meet the
needs and satisfy the interests of as many different audiences as practicable;
(c) the provision of relevant
television services which (taken together and having regard to the same
matters) are properly balanced, so far as their nature and subject-matters are
concerned, for meeting the needs and satisfying the interests of the available
audiences; and
(d) the provision of relevant
television services which (taken together) maintain high general standards with
respect to the programmes included in them, and, in particular with respect
to –
(i) the contents of the programmes;
(ii) the quality of the
programme making; and
(iii) the professional skill
and editorial integrity applied in the making of the programmes.
(5) When –
(a) determining the extent to
which any of the purposes of public service television broadcasting in the
United Kingdom [and the Bailiwick of Jersey] are fulfilled, and
(b) reviewing and reporting
on that matter,
OFCOM must have regard to
the desirability of those purposes being fulfilled in a manner that is
compatible with subsection (6).
(6) A
manner of fulfilling the purposes of public service television broadcasting in
the United Kingdom [and the Bailiwick of Jersey] is compatible with this
subsection if it ensures –
(a) that the relevant
television services (taken together) comprise a public service for the
dissemination of information and for the provision of education and
entertainment;
(b) that cultural activity in
the United Kingdom [and the Bailiwick of Jersey], and its diversity, are
reflected, supported and stimulated by the representation in those services
(taken together) of drama, comedy and music, by the inclusion of feature films
in those services and by the treatment of other visual and performing arts;
(c) that those services
(taken together) provide, to the extent that is appropriate for facilitating
civic understanding and fair and well-informed debate on news and current
affairs, a comprehensive and authoritative coverage of news and current affairs
in, and in the different parts of, the United Kingdom [and the Bailiwick of
Jersey] and from around the world;
(d) that those services
(taken together) satisfy a wide range of different sporting and other leisure
interests;
(e) that those services
(taken together) include what appears to OFCOM to be a suitable quantity and
range of programmes on educational matters, of programmes of an educational
nature and of other programmes of educative value;
(f) that those services
(taken together) include what appears to OFCOM to be a suitable quantity and
range of programmes dealing with each of the following, science, religion and
other beliefs, social issues, matters of international significance or interest
and matters of specialist interest;
(g) that the programmes
included in those services that deal with religion and other beliefs
include –
(i) programmes providing news and other
information about different religions and other beliefs;
(ii) programmes about the
history of different religions and other beliefs; and
(iii) programmes showing acts
of worship and other ceremonies and practices (including some showing acts of
worship and other ceremonies in their entirety);
(h) that those services
(taken together) include what appears to OFCOM to be a suitable quantity and
range of high quality and original programmes for children and young people;
(i) that those services
(taken together) include what appears to OFCOM to be a sufficient quantity of
programmes that reflect the lives and concerns of different communities and
cultural interests and traditions within the United Kingdom [and the Bailiwick
of Jersey], and locally in different parts of the United Kingdom [and the Bailiwick
of Jersey];
(j) that those services
(taken together), so far as they include programmes made in the United Kingdom
[and the Bailiwick of Jersey], include what appears to OFCOM to be an
appropriate range and proportion of programmes made outside the M25 area.
(7) In
carrying out a review under this section OFCOM must consider –
(a) the costs to persons
providing relevant television services of the fulfilment of the purposes of
public service television broadcasting in a manner compatible with subsection
(6); and
(b) the sources of income
available to each of them for meeting those costs.
(8) Every
report under this section must –
(a) specify, and comment on,
whatever changes appear to OFCOM to have occurred, during the period to which
the report relates, in the extent to which the purposes of public service
television broadcasting in the United Kingdom [and the Bailiwick of Jersey]
have been satisfied;
(b) specify, and comment on,
whatever changes appear to OFCOM to have occurred, during that period, in the
manner in which those purposes are fulfilled;
(c) set out the findings of
OFCOM on their consideration of the matters mentioned in subsection (7) and any
conclusions they have arrived at in relation to those findings; and
(d) set out OFCOM’s conclusions
on the current state of public service television broadcasting in the United
Kingdom [and the Bailiwick of Jersey].
(9) In
performing their duties under this section, OFCOM must have regard, in
particular, to –
(a) every statement of
programme or service policy which has been made by virtue of this Chapter by a
public service broadcaster, or which is treated as such a statement;
(b) every equivalent
statement of policy made by the BBC in pursuance of the BBC Charter and
Agreement; and
(c) such matters arising at
times before the coming into force of this section as OFCOM consider material.
(10) Every
report prepared by OFCOM under this section must be published by them –
(a) as soon as practicable
after its preparation is complete; and
(b) in such manner as they
consider appropriate.
(11) The
following are relevant television services for the purposes of this
section –
(a) the television
broadcasting services provided by the BBC;
(b) * * * * *
(c) every Channel 3 service;
(d) Channel 4;
(e) Channel 5;
(f) the public teletext
service.
(12) The
following are public service broadcasters for the purposes of this
section –
(a) the BBC;
(b) * * * * *
(c) the providers of the
licensed public service channels; and
(d) the public teletext
provider.
(13) In
this section –
“belief” means a
collective belief in, or other adherence to, a systemised set of ethical or
philosophical principles or of mystical or transcendental doctrines; and
“drama” includes
contemporary and other drama in a variety of different formats.
265 Public service remits of licensed providers
* *
*
*
*
*
*
266 Statements of programme policy
* *
*
*
*
*
*
267 Changes of programme policy
* *
*
*
*
*
*
268 Statements of service policy by the public
teletext provider
* *
*
*
*
*
*
269 Changes of service policy
* *
*
*
*
*
*
270 Enforcement of public service remits
* *
*
*
*
*
*
271 Power to amend public service remits
(1) The
Secretary of State may by order modify any one or more of the following –
(a) the public service remit
for any licensed public service channel or for the public teletext service;
(b) the purposes of public
service television broadcasting in the United Kingdom [and the Bailiwick of
Jersey] (within the meaning given by subsection (4) of section 264);
(c) the matters to which
OFCOM are to have regard under subsections (5) and (6) of that section.
(2) The
Secretary of State is not to make an order under this section except
where –
(a) OFCOM have made a
recommendation for the making of such an order in their most recent report
under section 229 or 264; or
(b) subsection (3) applies to
the order.
(3) This
subsection applies to an order if –
(a) it is made by the
Secretary of State less than twelve months after the date on which he has
received a report under section 229;
(b) he has considered that
report; and
(c) he is satisfied that the
making of the order is required, notwithstanding the absence of a
recommendation by OFCOM, by circumstances or other matters which are dealt with
in that report or which (in his opinion) should have been.
(4) Before
including a recommendation for the making of an order under this section in a
report under section 229 or 264, OFCOM must consult –
(a) members of the public in
the United Kingdom [and the Bailiwick of Jersey];
(b) such public service
broadcasters as they consider are likely to be affected if the Secretary of
State gives effect to the recommendation they are proposing to make; and
(c) such of the other persons
providing television and radio services as OFCOM consider appropriate.
(5) Before
making an order under this section, the Secretary of State must consult the
persons mentioned in subsection (6) about its terms (even if the order is the
one recommended by OFCOM).
(6) Those
persons are –
(a) OFCOM;
(b) such public service
broadcasters as they consider are likely to be affected by the order; and
(c) such of the other persons
providing television and radio services as he considers appropriate.
(7) * * * * *
(8) In
this section “public service broadcaster” means any of the persons who are
public service broadcasters for the purposes of section 264.
Must-offer
obligations etc. affecting public service television
272 Must-offer obligations in relation to
networks
* *
*
*
*
*
*
273 Must-offer obligations in relation to
satellite services
* *
*
*
*
*
*
274 Securing reception of must-provide services
in certain areas
* *
*
*
*
*
*
275 Must-provide services for the purposes of s.
274
(1) For
the purposes of section 274 the list of must-provide services is as
follows –
(a) every service of
television programmes provided by the BBC so far as it is provided in digital
form and is a service in relation to which OFCOM have functions;
(b) the Channel 3 services so
far as provided in digital form;
(c) Channel 4 so far as
provided in digital form;
(d) Channel 5 so far as
provided in digital form;
(e) * * * * *
(f) the digital public
teletext service.
(2) The
Secretary of State may by order modify the list of must-provide services in
subsection (1).
(3) In
determining whether it is appropriate, by an order under subsection (2), to add
a service to the list of must-provide services or to remove a service from that
list, the Secretary of State must have regard, in particular, to –
(a) the public benefit to be
secured by the addition of the service to the list, or by its retention in the
list;
(b) the likely effect of the
proposed modification as respects the costs to be borne, under arrangements
entered into or imposed under section 274, by the persons who, after the coming
into force of the modification, would have to be parties to those arrangements;
and
(c) the extent to which that
effect is proportionate to the benefit mentioned in paragraph (a).
276 Co-operation with the public teletext
provider
(1) The
regulatory regime for every Channel 3 service and for Channel 4 includes the
conditions that OFCOM consider appropriate for securing that the provider of
the service or channel grants access to the facilities mentioned in subsection
(2) –
(a) to the public teletext
provider; and
(b) to any person authorised
by virtue of section 220 to provide the whole or a part of the public teletext
service on his behalf.
(2) Those
facilities are the facilities that are reasonably required by the public
teletext provider or the authorised person for the purposes of, or in
connection with, the provision of the public teletext service.
(3) A
licence holder granting access to facilities in pursuance of a condition
imposed under this section may require the public teletext provider or
authorised person to pay a reasonable charge in respect of the facilities.
(4) In
the event of a dispute, the amount of the charge is to be determined by OFCOM.
Programming
quotas for public service television
277 Programming quotas for independent
productions
(1) The
regulatory regime for every licensed public service channel includes the
conditions that OFCOM consider appropriate for securing that, in each year, not
less than 25 per cent. of the total amount of time allocated to the
broadcasting of qualifying programmes included in the channel is allocated to
the broadcasting of a range and diversity of independent productions.
(2) In
this section –
(a) a reference to qualifying
programmes is a reference to programmes of such description as the Secretary of
State may by order specify as describing the programmes that are to be
qualifying programmes for the purposes of this section;
(b) a reference to
independent productions is a reference to programmes of such description as the
Secretary of State may by order specify as describing the programmes that are
to be independent productions for the purposes of this section; and
(c) a reference to a range of
independent productions is a reference to a range of such productions in terms
of cost of acquisition as well as in terms of the types of programme involved.
(3) The
Secretary of State may by order amend subsection (1) by substituting a
different percentage for the percentage for the time being specified in that
subsection.
(4) The
Secretary of State may also by order provide for the regulatory regime for
every licensed public service channel to include conditions falling within
subsection (5), either instead of or as well as those falling within subsection
(1).
(5) The
conditions falling within this subsection are those that OFCOM consider
appropriate for securing that, in each year, not less than the percentage
specified in the order of the programming budget for that year for that channel
is applied in the acquisition of independent productions.
(6) The
power to make an order under subsection (4) includes power to provide that
conditions that have previously ceased under such an order to be included in
the regulatory regime for every licensed public service channel are again so
included, in addition to or instead of the conditions already so included
(apart from the exercise of that power) by virtue of this section.
(7) The
Secretary of State is not to make an order for the regulatory regime of every
licensed public service channel to include or exclude conditions falling within
subsection (1) or conditions falling within subsection (5) unless –
(a) OFCOM have made a
recommendation to him for those conditions to be included or excluded; and
(b) the order gives effect to
that recommendation.
(8) The
regulatory regime for every licensed public service channel also includes a
condition requiring the provider of the channel to comply with directions given
to him by OFCOM for the purpose of –
(a) carrying forward to one
or more subsequent years determined in accordance with the direction any
shortfall for any year in his compliance with the requirements of conditions
imposed by virtue of subsection (1) or (4); and
(b) thereby increasing the
percentage applicable for the purposes of those conditions to the subsequent
year or years.
(9) For
the purposes of conditions imposed by virtue of this section –
(a) the amount of the
programming budget for a licensed public service channel for a year, and
(b) the means of determining
the amount of that budget that is applied for any purpose,
are to be computed in
accordance with such provision as may be set out in an order made by the
Secretary of State, or as may be determined by OFCOM in accordance with such an
order.
(10) The
powers of the Secretary of State to make orders under this section do not
include –
(a) power to specify
different percentages for the purposes of subsection (1), or of a condition
falling within subsection (5), for different regional Channel 3 services or for
different national Channel 3 services; or
(b) power to make different
provision for different licensed public service channels as to whether
conditions falling within subsection (1) or conditions falling within
subsection (5), or both, are included in the regulatory regimes for those
services.
(11) Before
making an order under this section the Secretary of State must consult OFCOM, [and]
the BBC * * *.
(12) * * * * *
(13) In
this section –
“acquisition”, in relation
to a programme, includes commissioning and the acquisition of a right to
include it in a service or to have it broadcast;
“programme” does not
include an advertisement; and
“programming budget” means
the budget for the production and acquisition of qualifying programmes.
278 Programming quotas for original productions
(1) The
regulatory regime for every licensed public service channel includes the
conditions that OFCOM consider appropriate for securing –
(a) that the time allocated,
in each year, to the broadcasting of original productions included in that
channel is no less than what appears to them to be an appropriate proportion of
the total amount of time allocated to the broadcasting of all the programmes
included in the channel; and
(b) that the time allocated
to the broadcasting of original productions is split in what appears to them to
be an appropriate manner between peak viewing times and other times.
(2) The
proportion determined by OFCOM for the purposes of subsection (1) –
(a) must, in the case of each
licensed public service channel, be such proportion as OFCOM consider
appropriate for ensuring that the channel is consistently of a high quality;
and
(b) may, for the purposes of
paragraph (b) of that subsection, be expressed as the cumulative effect of
two different minimum proportions, one applying to peak viewing times and the
other to other times.
(3) A
condition contained in a licence by virtue of this section may provide –
(a) that specified
descriptions of programmes are to be excluded in determining the programmes a
proportion of which is to consist of original productions;
(b) that, in determining for
the purposes of the condition whether a programme is of a description of
programmes excluded by virtue of paragraph (a), regard is to be had to any
guidance prepared and published, and from to time revised, by OFCOM.
(4) Before
imposing a condition under this section, OFCOM must consult the person on whom
it is to be imposed.
(5) The
requirement to consult is satisfied, in the case of the imposition of a
condition by way of a variation of a licence, by compliance with section 3(4)(b)
of the 1990 Act (obligation to give opportunity to make representations about
variation).
(6) References
in this section, in relation to a licensed public service channel, to original
productions are references to programmes of such description as the Secretary
of State may by order specify as describing the programmes that are to be
original productions for the purposes of this section.
(7) The
power to specify descriptions of programmes by order under subsection (6)
includes power to confer such discretions on OFCOM as the Secretary of State
thinks fit.
(8) Before
making an order under this section the Secretary of State must consult OFCOM
[and], the BBC
* * *.
(9) * * * * *
(10) In
this section –
“peak viewing time”, in
relation to a licensed public service channel, means a time that appears to
OFCOM to be, or to be likely to be, a peak viewing time for that channel; and
“programme” does not
include an advertisement.
(11) Before
determining for the purposes of this section what constitutes a peak viewing
time for a channel, OFCOM must consult the provider of the channel.
News
provision etc. on public service television
279 News and current affairs programmes
(1) The
regulatory regime for every licensed public service channel includes the
conditions that OFCOM consider appropriate for securing –
(a) that the programmes
included in the channel include news programmes and current affairs programmes;
(b) that the news programmes
and current affairs programmes included in the service are of high quality and
deal with both national and international matters; and
(c) that the news programmes
so included are broadcast for viewing at intervals throughout the period for
which the channel is provided.
(2) That
regime also includes the conditions that OFCOM consider appropriate for
securing that, in each year –
(a) the time allocated to the
broadcasting of news programmes included in the service, and
(b) the time allocated to the
broadcasting of current affairs programmes so included,
each constitutes no less
than what appears to OFCOM to be an appropriate proportion of the time
allocated to the broadcasting of all the programmes included in the channel.
(3) It
further includes the conditions that OFCOM consider appropriate for securing
that the time allocated –
(a) to the broadcasting of
news programmes included in the service, and
(b) to the broadcasting of
current affairs programmes so included,
is, in each case, split in
what appears to OFCOM to be an appropriate manner between peak viewing times and
other times.
(4) The
proportion determined by OFCOM for the purposes of subsection (2) may, for the
purposes of subsection (3), be expressed as the cumulative effect of two
different minimum proportions, one applying to peak viewing times and the other
to other times.
(5) In
this section “peak viewing time”, in relation to a licensed public service
channel, means a time determined by OFCOM to be, or to be likely to be, a peak
viewing time for that channel.
(6) Before
determining for the purposes of this section –
(a) the proportion of time to
be allocated to the broadcasting of news programmes or current affairs
programmes; or
(b) what constitutes a peak
viewing time for a channel,
OFCOM must consult the
provider of the channel or (as the case may be) the person who is proposing to
provide it.
(7) The
requirement to consult is satisfied, in the case of the imposition of a
condition by way of a variation of a licence, by compliance with section 3(4)(b)
of the 1990 Act (obligation to give opportunity to make representations about
variation).
280 Appointed news providers for Channel 3
(1) The
regulatory regime for every regional Channel 3 service includes the conditions
that OFCOM consider appropriate for securing the nationwide broadcasting, on
the regional Channel 3 services (taken together), of news programmes that are
able to compete effectively with other television news programmes broadcast
nationwide in the United Kingdom [and the Bailiwick of Jersey].
(2) The
conditions imposed under this section must include a condition requiring the
holder of a regional Channel 3 licence to do all that he can to ensure –
(a) that arrangements for the
appointment of a single body corporate as the appointed news provider are
maintained between all the holders of regional Channel 3 licences; and
(b) that, at all times while
he is providing a regional Channel 3 service, there is in force an appointment
made in accordance with those arrangements.
(3) The
arrangements that are required to be maintained by virtue of conditions imposed
under subsection (2) must provide –
(a) for the terms on which a
body is appointed as the appointed news provider to include the terms appearing
to OFCOM to be appropriate for securing that the body’s finances are adequate,
throughout the period of its appointment, to ensure that the Channel 3 news
obligations are capable of being met; and
(b) for the approval of OFCOM
to be required for the purposes of paragraph (a) to the terms on which an
appointment is made.
(4) The
conditions imposed under this section must include the conditions that OFCOM
consider appropriate for securing that arrangements maintained between –
(a) the holders of regional
Channel 3 licences, and
(b) the body which is the
appointed news provider,
ensure that that body is
subject to an obligation, enforceable by OFCOM, to provide OFCOM with all such
information as they may require for the purpose of carrying out their
functions.
(5) The
conditions imposed under this section must include a condition requiring the
news programmes included in a regional Channel 3 service –
(a) to be programmes provided
by the body which is for the time being the appointed news provider for the
purposes of this section; and
(b) to be so included in that
service as to be broadcast simultaneously with the broadcasting of news
programmes included, in accordance with conditions imposed under this
subsection, in other regional Channel 3 services.
(6) Those
conditions must also require the news programmes provided by the appointed news
provider which, in accordance with a condition imposed under subsection (5),
are included in a regional Channel 3 service to be programmes that are
presented live.
(7) OFCOM –
(a) may issue guidance as to
the terms that will satisfy requirements imposed by virtue of subsection
(3)(a); and
(b) must have regard to
guidance for the time being in force under this subsection when considering
whether to give an approval for the purposes of provision made by virtue of
subsection (3)(b).
(8) For
the purposes of this section the Channel 3 news obligations are –
(a) the requirements of any
conditions imposed in relation to regional Channel 3 services under section
279; and
(b) the nationwide
broadcasting on the regional Channel 3 services (taken together) of news
programmes that are able to compete effectively with other television news
programmes broadcast nationwide in the United Kingdom [and the Bailiwick of
Jersey].
(9) Conditions
imposed under this section are not to require arrangements to make provision
falling within subsection (3)(a) or (b) or (4) in relation to appointments made
before the commencement of this section.
(10) Section 32
of the 1990 Act (nomination of bodies eligible for appointment as news
providers) shall cease to have effect.
281 Disqualification from appointment as news
provider
(1) The
regulatory regime for every regional Channel 3 service includes the conditions
that OFCOM consider appropriate for securing –
(a) that a body is not
appointed as the appointed news provider if it falls within subsection (2); and
(b) that the appointment of a
body as the appointed news provider ceases to have effect if it becomes a body
falling within that subsection.
(2) A
body falls within this subsection if –
(a) it is a disqualified
person under Part 2 of Schedule 2 to the 1990 Act in relation to a
Channel 3 licence; or
(b) there would be a
contravention of Part 1 of Schedule 14 to this Act (whether by that
body or by another person) if that body held a licence to provide a Channel 3
service, or held a licence to provide such a service for a particular area for
which such a service is provided.
282 Power to repeal or modify Channel 3 news
provider provisions
(1) If
it appears to the Secretary of State appropriate to do so, he may by order
repeal or otherwise modify any of the provisions of section 280 or 281.
(2) Except
in a case to which subsection (3) applies, the Secretary of State must consult
OFCOM before making an order under this section.
(3) Consultation
with OFCOM is not required if the order is confined to giving effect to
recommendations by OFCOM that are contained in a report of a review under
section 391.
(4) * * * * *
283 News providers for Channel 5
(1) If
it appears to the Secretary of State appropriate to do so, he may by order make
provision requiring news programmes included in Channel 5 to be provided by a
person appointed as a news provider in accordance with the order.
(2) An
order under this section may make provision in relation to Channel 5 that
corresponds, with such modifications as the Secretary of State thinks fit, to
any provision made in relation to regional Channel 3 services by section 280 or
281.
(3) Subsection
(2) applies irrespective of any repeal or other modification by an order under
this Act of section 280 or 281.
(4) * * * * *
(5) The
Secretary of State is not to make an order under this section for the
imposition of obligations in relation to Channel 5 unless he is satisfied that
Channel 5’s share of the audience for television broadcasting services is
broadly equivalent to that of the services comprising Channel 3.
(6) An
order under this section must require a licence holder to have a reasonable
opportunity of making representations to OFCOM before his licence is varied in
pursuance of the order.
(7) Except
in a case to which subsection (8) applies, the Secretary of State must consult
OFCOM before making an order under this section.
(8) Consultation
with OFCOM is not required if the order is confined to giving effect to
recommendations by OFCOM that are contained in a report of a review under
section 391.
(9) * * * * *
284 News provision on the public teletext
service
(1) The
regulatory regime for the public teletext service includes the conditions that
OFCOM consider appropriate for securing –
(a) that the service includes
what appears to OFCOM to be a suitable quantity and variety of news items; and
(b) that the news items
included in the service are up to date and regularly revised.
(2) Conditions
imposed under this section in relation to a time when the public teletext
service comprises both –
(a) an analogue teletext
service, and
(b) a teletext service
provided in digital form,
must apply to both
services but may make different provision for each of them.
Independent
and regional productions and programmes for public service television
285 Code relating to programme commissioning
(1) The
regulatory regime for every licensed public service channel includes the
conditions that OFCOM consider appropriate for securing that the provider of
the channel draws up and from time to time revises a code of practice setting
out the principles he will apply when agreeing terms for the commissioning of
independent productions.
(2) That
regime also includes the conditions that OFCOM consider appropriate for
securing that the provider of every licensed public service channel –
(a) at all times complies
with a code of practice which has been drawn up by him by virtue of this
section and is for the time being in force; and
(b) exercises his power to revise
his code to take account of revisions from time to time of the guidance issued
by OFCOM for the purposes of this section.
(3) The
conditions imposed under this section must ensure that the code for the time
being in force in the case of every licensed public service channel secures, in
the manner described in guidance issued by OFCOM –
(a) that a reasonable
timetable is applied to negotiations for the commissioning of an independent
production and for the conclusion of a binding agreement;
(b) that there is what
appears to OFCOM to be sufficient clarity, when an independent production is
commissioned, about the different categories of rights to broadcast or
otherwise to make use of or exploit the commissioned production that are being
disposed of;
(c) that there is what
appears to OFCOM to be sufficient transparency about the amounts to be paid in
respect of each category of rights;
(d) that what appear to OFCOM
to be satisfactory arrangements are made about the duration and exclusivity of
those rights;
(e) that procedures exist for
reviewing the arrangements adopted in accordance with the code and for
demonstrating compliance with it;
(f) that those procedures
include requirements for the monitoring of the application of the code and for
the making of reports to OFCOM;
(g) that provision is made
for resolving disputes arising in respect of the provisions of the code (by
independent arbitration or otherwise) in a manner that appears to OFCOM to be
appropriate.
(4) The
conditions imposed under this section must also ensure that the drawing up or
revision of a code by virtue of this section is in accordance with guidance
issued by OFCOM as to –
(a) the times when the code
is to be drawn up or reviewed with a view to revision;
(b) the consultation to be
undertaken before a code is drawn up or revised; and
(c) the publication of every
code or revised code.
(5) The
provision that may be included in a condition imposed under this section
includes –
(a) provision requiring a
draft of a code or of any revision of a code to be submitted to OFCOM for
approval;
(b) provision for the code or
revision to have effect only if approved by OFCOM; and
(c) provision for a code or
revision that is approved by OFCOM subject to modifications to have effect with
those modifications.
(6) OFCOM –
(a) must issue and may from
time to time revise guidance for the purposes of this section;
(b) must ensure that there is
always guidance for those purposes in force;
(c) must, before issuing
their guidance or revised guidance, consult the providers of licensed public
service channels, persons who make independent productions (or persons
appearing to OFCOM to represent them), [and] the BBC
* * *;
and
(d) must publish their
guidance or revised guidance in such manner as they think appropriate.
(7) Guidance
issued by OFCOM for the purposes of this section must be general guidance and
is not to specify particular terms to be included in agreements to which the
guidance relates.
(8) Conditions
imposed under this section requiring a code to be drawn up or approved may
include transitional provision for treating a code drawn up before the
imposition of the condition –
(a) as satisfying the
requirements of that condition; and
(b) as a code approved by
OFCOM for the purposes of conditions so imposed.
(9) In
this section “independent production” has the same meaning as in section 277.
286 Regional programme-making for Channels 3 and
5
(1) The
regulatory regime for every Channel 3 service includes the conditions (if
any) that OFCOM consider appropriate in the case of that service for
securing –
(a) that what appears to
OFCOM to be a suitable proportion of Channel 3 programmes made in the
United Kingdom [of the Bailiwick of Jersey] are programmes made in the United
Kingdom [of the Bailiwick of Jersey] outside the M25 area;
(b) that the Channel 3
programmes that are made in the United Kingdom [of the Bailiwick of Jersey]
outside the M25 area (taken together) constitute what appears to OFCOM to be a
suitable range of programmes;
(c) that what appears to
OFCOM to be a suitable proportion of the expenditure of the providers of
Channel 3 services on Channel 3 programmes made in the United Kingdom
[of the Bailiwick of Jersey] is referable to programme production at different
production centres outside the M25 area; and
(d) that the different
programme production centres to which that expenditure is referable constitute
what appears to OFCOM to be a suitable range of such production centres.
(2) In
the case of a national Channel 3 service, subsection (1) requires the
inclusion of conditions in the licence for the service only where OFCOM
consider, having regard to the nature of the service, that it would be
appropriate for conditions falling within that subsection to be so included.
(3) The
regulatory regime for Channel 5 includes the conditions that OFCOM
consider appropriate for securing –
(a) that what appears to
OFCOM to be a suitable proportion of the programmes made in the United Kingdom
[of the Bailiwick of Jersey] for viewing on that Channel are programmes made in
the United Kingdom [of the Bailiwick of Jersey] outside the M25 area;
(b) that the programmes for
such viewing that are made in the United Kingdom [of the Bailiwick of Jersey]
outside the M25 area (taken together) constitute what appears to OFCOM to be a
suitable range of programmes;
(c) that what appears to
OFCOM to be a suitable proportion of the expenditure of the provider of
Channel 5 on programmes made in the United Kingdom [of the Bailiwick of
Jersey] for viewing on that Channel is referable to programme production at
different production centres outside the M25 area; and
(d) that the different
programme production centres to which that expenditure is referable constitute
what appears to OFCOM to be a suitable range of such production centres.
(4) Before
imposing a condition under this section, OFCOM must consult the person on whom
it is to be imposed.
(5) The
requirement to consult is satisfied, in the case of the imposition of a
condition by way of a variation of a licence, by compliance with
section 3(4)(b) of the 1990 Act (obligation to give opportunity to make
representations about variation).
(6) A
proportion is not to be regarded by OFCOM as suitable for the purposes of a
provision of this section if it constitutes less than a significant proportion
of the programmes or expenditure in question.
(7) In
this section –
“Channel 3
programmes” means programmes made for viewing on Channel 3 in more than
one area for which regional Channel 3 services are provided, including any
programme made for viewing on a national Channel 3 service other than a
regional programme;
“expenditure”, in relation
to a programme, means –
(a) expenditure which
constitutes an investment in or is otherwise attributable to the making of the
programme; or
(b) expenditure on the
commissioning or other acquisition of the programme or on the acquisition of a
right to include it in a service or to have it broadcast;
“programme” does not
include an advertisement; and
“regional programme” means
a programme made with a view to its inclusion in a national Channel 3 service
as a programme of particular interest to persons living within a particular
area of the United Kingdom [of the Bailiwick of Jersey].
287 Regional programmes on Channel 3
(1) The
regulatory regime for every regional Channel 3 service includes the conditions
that OFCOM consider appropriate for securing –
(a) that what appears to
OFCOM, in the case of that service, to be a sufficient amount of time is given
in the programmes included in the service to what appears to them to be a
suitable range of programmes (including regional news programmes) which are of
particular interest to persons living within the area for which the service is
provided;
(b) that the regional
programmes included in the service are of high quality;
(c) that what appears to
OFCOM, in the case of that service, to be a suitable proportion of the regional
programmes included in the service consists of programmes made in that area;
(d) that the regional news
programmes included in the service are broadcast for viewing at intervals
throughout the period for which the service is provided and, in particular, at
peak viewing times;
(e) that what appears to
OFCOM, in the case of that service, to be a suitable proportion of the other
regional programmes that are included in the service consists of programmes
broadcast for viewing –
(i) at peak viewing times; and
(ii) at times immediately
preceding or following those times.
(2) The
regulatory regime for every local Channel 3 service includes the conditions
that OFCOM consider appropriate for securing –
(a) that what appears to
OFCOM, in the case of that service, to be a sufficient amount of time is given
in the programmes included in the service to what appears to them to be a
suitable range of local programmes;
(b) that, in the case of each
part of an area or each community for which the service is provided, the range
of local programmes is a range of programmes (including news programmes) which
are of particular interest to persons living within that part of that area or
to that community;
(c) that the local programmes
included in the service are of high quality;
(d) that what appears to
OFCOM, in the case of that service, to be a suitable proportion of the local
programmes included in the service consists of programmes made in the area for
which the service is provided;
(e) that the local news
programmes included in the service are broadcast for viewing at intervals
throughout the period for which the service is provided and, in particular, at
peak viewing times;
(f) that what appears to
OFCOM, in the case of that service, to be a suitable proportion of the other
local programmes that are included in the service consists of programmes
broadcast for viewing –
(i) at peak viewing times; and
(ii) at times immediately
preceding or following those times.
(3) In
the case of a local Channel 3 service, the conditions included in the
regulatory regime for the service include conditions falling within
subsection (1) to the extent only that it appears to OFCOM that the
requirements of subsection (1) are not adequately met by conditions
falling within subsection (2).
(4) In
the case of a national Channel 3 service in the case of which OFCOM consider
that it would be appropriate to impose conditions under this subsection, the
regulatory regime for the service includes the conditions that OFCOM consider
appropriate for securing –
(a) that what appears to
OFCOM, in the case of that service, to be a sufficient amount of time is given
in the programmes included in the service to what appears to them to be a
suitable range of programmes (including regional news programmes) which are of
particular interest to persons living within particular areas of the United
Kingdom [and the Bailiwick of Jersey];
(b) that the regional programmes
included in the service are of high quality;
(c) that what appears to
OFCOM, in the case of that service, to be a suitable proportion of the regional
programmes included in the service consists of programmes made in the area by
reference to which they are regional programmes;
(d) that the regional news
programmes included in the service are broadcast for viewing at intervals
throughout the period for which the service is provided and, in particular, at
peak viewing times;
(e) that what appears to
OFCOM, in the case of that service, to be a suitable proportion of the other
regional programmes that are included in the service consists of programmes
broadcast for viewing –
(i) at peak viewing times; and
(ii) at times immediately
preceding or following those times.
(5) Before
imposing a condition under this section, OFCOM must consult the person on whom
it is to be imposed.
(6) The
requirement to consult is satisfied, in the case of the imposition of a
condition by way of a variation of a licence, by compliance with
section 3(4)(b) of the 1990 Act (obligation to give opportunity to make
representations about variation).
(7) A
proportion is not to be regarded by OFCOM as suitable for the purposes of a
provision of this section if it constitutes less than a significant proportion
of the programmes in question.
(8) In
this section –
“local Channel 3
service” means a regional Channel 3 service the provision of which
includes the provision (in pursuance of a determination under
section 14(3) of the 1990 Act) of different programmes for different parts
of an area or for different communities living within an area;
“local programme”, in
relation to a service provided for different parts of an area or for different
communities, means a programme included in that service for any of the parts of
that area or for any of those communities, and “local news programme” is to be
construed accordingly;
“peak viewing time”, in
relation to a service, means a time determined by OFCOM to be, or to be likely
to be, a peak viewing time for that service;
“programme” does not
include an advertisement;
“regional
programme” –
(a) in relation to a regional
Channel 3 service, means a programme included in that service with a view
to its being of particular interest to persons living within the area for which
the service is provided;
(b) in relation to a national
Channel 3 service, means a programme included in that service with a view
to its being of particular interest to persons living within a particular area
of the United Kingdom [and the Bailiwick of Jersey];
and “regional news
programme” is to be construed accordingly.
288 Regional programme-making for Channel 4
(1) The
regulatory regime for Channel 4 includes the conditions that OFCOM
consider appropriate for securing –
(a) that what appears to
OFCOM to be a suitable proportion of programmes made in the United Kingdom for
viewing on Channel 4 are programmes made in the United Kingdom outside the
M25 area;
(b) that the programmes for
such viewing that are made in the United Kingdom outside the M25 area (taken
together) constitute what appears to OFCOM to be a suitable range of
programmes;
(c) that what appears to
OFCOM to be a suitable proportion of the expenditure of C4C on programmes made
in the United Kingdom for viewing on Channel 4 is referable to programme
production at different production centres outside the M25 area; and
(d) that the different
programme production centres to which that expenditure is referable constitute
what appears to OFCOM to be a suitable range of such production centres.
(2) Before
imposing a condition under this section, OFCOM must consult C4C.
(3) The
requirement to consult is satisfied, in the case of the imposition of a
condition by way of a variation of a licence, by compliance with
section 3(4)(b) of the 1990 Act (obligation to give opportunity to make
representations about variation).
(4) A
proportion is not to be regarded by OFCOM as suitable for the purposes of a
provision of this section if it constitutes less than a significant proportion
of the programmes or expenditure in question.
(5) In
this section –
“expenditure”, in relation
to a programme, means –
(a) expenditure which
constitutes an investment in or is otherwise attributable to the making of the
programme; or
(b) expenditure on the commissioning
or other acquisition of the programme or on the acquisition of a right to
include it in a service or to have it broadcast; and
“programme” does not
include an advertisement.
289 Regional matters in the public teletext
service
(1) The
regulatory regime for the public teletext service includes the conditions that
OFCOM consider appropriate for securing that the service includes what appears
to them to be an appropriate proportion of material that is of particular
interest to persons living in different parts of the United Kingdom.
(2) Conditions
imposed under this section in relation to a time when the public teletext
service comprises both –
(a) an analogue teletext
service, and
(b) a teletext service
provided in digital form,
must apply to both services
but may make different provision for each of them.
Networking
arrangements for Channel 3
290 Proposals for arrangements
(1) An
application for a regional Channel 3 licence, in addition to being
accompanied by the proposals mentioned in section 15(3)(b) of the 1990 Act,
must be accompanied by the applicant’s proposals for participating in
networking arrangements.
(2) OFCOM
may publish general guidance to applicants for regional Channel 3 licences
as to the kinds of proposals which they are likely to consider satisfactory.
(3) The
publication of guidance under subsection (2) is to be in such manner as OFCOM
consider appropriate.
(4) Arrangements
are networking arrangements for the purposes of this Part if they –
(a) apply to all the holders
of regional Channel 3 licences;
(b) provide for programmes
made, commissioned or acquired by or on behalf of one or more of the holders of
such licences to be available for broadcasting in all regional Channel 3
services; and
(c) are made for the purpose
of enabling regional Channel 3 services (taken as a whole) to be a nationwide
system of services which is able to compete effectively with other television
programme services provided in the United Kingdom [and the Bailiwick of
Jersey].
291 Obligation as to making and continuance of
approved arrangements
(1) The
regulatory regime for every regional Channel 3 service includes the conditions
that OFCOM consider appropriate for securing that the licence holder does all
that he can to ensure that approved networking arrangements are in force
whenever –
(a) the licence holder is
providing the licensed service; and
(b) no networking
arrangements imposed by OFCOM under section 292 are in force.
(2) In
this section “approved networking arrangements” means networking arrangements
which are for the time being approved by OFCOM in accordance with Schedule 11.
(3) * * * * *
(4) * * * * *
292 OFCOM’s power to impose arrangements
(1) This
section applies on each occasion on which OFCOM –
(a) are proposing to award
one or more regional Channel 3 licences; and
(b) for that purpose publish
a notice under section 15(1) of the 1990 Act.
(2) OFCOM
must –
(a) determine the date by
which the holders of the licences awarded and all other regional Channel 3
providers (if any) must have entered into networking arrangements (the
“networking date”); and
(b) set out that date in that
notice.
(3) The
networking date must be the date by which, in OFCOM’s opinion, the networking
arrangements must have been entered into if approved networking arrangements
are to be fully in force before the persons awarded licences begin to provide
their licensed services.
(4) If –
(a) no suitable networking
arrangements exist by the networking date, or
(b) the suitable networking
arrangements that exist at that date cease to apply to all regional Channel 3
providers on or after that date,
OFCOM may impose on all
regional Channel 3 providers the networking arrangements that OFCOM consider
appropriate.
(5) For
the purposes of subsection (4) arrangements are suitable networking
arrangements if it appears to OFCOM that they –
(a) have been submitted to
them for approval or have been approved by them; and
(b) will be in force as
approved networking arrangements when the persons awarded licences begin to
provide their licensed services.
(6) Arrangements
imposed under this section come into force on the date determined by OFCOM.
(7) The
regulatory regime for every regional Channel 3 service includes the conditions
that OFCOM consider appropriate for securing that the licence holder complies
with the provisions of any networking arrangements imposed under this section.
(8) Where –
(a) networking arrangements
are imposed under this section,
(b) other networking
arrangements are entered into between the licence holders bound by the imposed
arrangements, and
(c) the other arrangements
entered into are approved by OFCOM,
the imposed arrangements
shall cease to have effect on the coming into force of the other arrangements
as approved networking arrangements.
(9) In
this section –
“approved networking
arrangements” has the same meaning as in section 291; and
“regional Channel 3
providers” means persons who will be licensed to provide regional Channel 3
services and will be providing such services when the licences to be awarded
come into force.
293 Review of approved networking arrangements
etc.
(1) It
shall be the duty of OFCOM from time to time to carry out general reviews of
the networking arrangements (whether approved or imposed by OFCOM) that are in
force.
(2) The
first such review must be carried out no later than six months after the date
on which the offers made under section 215(1) close or (if those offers close
on different dates) the latest of those dates.
(3) Every
subsequent review must be carried out no more than one year after the previous
one.
(4) OFCOM
may also, at any other time, carry out a review of whether those arrangements
continue to satisfy one of the two competition tests set out in paragraph 6 of
Schedule 11.
(5) If,
on a review under this section, OFCOM are satisfied that modifications are
required of the networking arrangements for the time being in force, they
may –
(a) require the holders of
regional Channel 3 licences to give effect to the modifications proposed by
OFCOM; or
(b) in the case of
arrangements imposed by OFCOM, make those modifications themselves.
(6) OFCOM
must not exercise any of their powers under this Act or the 1990 Act so as to
modify the requirements imposed on the holder of a regional Channel 3 licence
by approved networking arrangements that are already in force except –
(a) following a review under
this section; or
(b) with the consent of the
licence holder.
(7) The
regulatory regime for every Channel 3 service includes the conditions that
OFCOM consider appropriate for securing that the licence holder does all that
he can to ensure that modifications proposed by OFCOM under this section are
given effect to.
(8) In
this section “approved networking arrangements” has the same meaning as in
section 291.
294 Supplemental provision about networking
arrangements
(1) Schedule 11
(which makes provision about the approval of networking arrangements and the
imposition or modification of such arrangements) shall have effect.
(2) The
obligations arising under conditions imposed in accordance with sections 291 to
293 are subject to the rights of appeal conferred by that Schedule.
Special
obligations for Channel 4
295 Involvement of C4 Corporation in
programme-making
(1) The
regulatory regime for Channel 4 includes a condition requiring C4C not to be
involved, except to such extent as OFCOM may allow, in the making of programmes
to be broadcast on Channel 4.
(2) In
this section “programme” does not include an advertisement.
296 Schools programmes on Channel 4
(1) The
regulatory regime for Channel 4 includes the conditions that OFCOM
consider appropriate for securing that what appears to them to be a suitable
proportion of the programmes which are included in Channel 4 are schools
programmes.
(2) A
licence under the 1990 Act to provide Channel 4 may also include conditions
authorised by the following provisions of this section.
(3) The
conditions authorised by this section include conditions requiring C4C –
(a) to finance the production
of schools programmes; and
(b) to acquire schools
programmes provided by other persons.
(4) The
conditions authorised by this section include conditions requiring C4C to
ensure that schools programmes on Channel 4 –
(a) are of high quality; and
(b) are suitable to meet the
needs of schools throughout the United Kingdom.
(5) The
conditions authorised by this section include conditions specifying the minimum
number of hours in term time, or within normal school hours, that are to be
allocated to the broadcasting of schools programmes on Channel 4.
(6) The
conditions authorised by this section include conditions requiring C4C to
provide such material for use in connection with the schools programmes
broadcast by them as may be necessary to secure that effective use is made of
those programmes in schools.
(7) The
conditions authorised by this section include conditions requiring C4C from
time to time to consult such persons who –
(a) are concerned with
schools or with the production of schools programmes, or
(b) have an interest in
schools or in the production of schools programmes,
as OFCOM think fit.
(8) Before
imposing a condition under this section, OFCOM must consult C4C.
(9) The
requirement to consult is satisfied, in the case of the imposition of a
condition by way of a variation of a licence, by compliance with
section 3(4)(b) of the 1990 Act (obligation to give opportunity to make
representations about variation).
(10) In
determining for the purposes of subsection (1) what proportion of the
programmes included in Channel 4 should be schools programmes, OFCOM must
take into account services, facilities and materials which C4C provide to
schools, or make available for schools, otherwise than by the inclusion of
programmes in Channel 4.
(11) Section 34
of the 1990 Act (requirement as to schools programmes in relation to all
licensed public service channels taken together) shall cease to have effect.
(12) In
this section “schools programmes” means programmes which are intended for use
in schools.
297 Channel 4 contribution towards national
television archive
(1) Section
185 of the 1990 Act (contributions towards maintenance of the national
television archive) shall be amended as follows.
(2) In
subsections (1) and (3), after “Channel 3” there shall be inserted
“, Channel 4”.
(3) In
subsection (5), at the end there shall be inserted –
“ ‘Channel 4 licence’ means –
(a) the licence referred to
in section 231(1)(b) of the Communications Act 2003; and
(b) a licence renewing that
licence on the first or any subsequent occasion.”
(4) This
section has effect in relation only to financial years beginning after the television
transfer date.
Special
obligation for the public teletext provider
298 Conditions prohibiting interference with
other services
The regulatory regime for
the public teletext service includes the conditions that OFCOM consider
appropriate for securing that the provision of so much of the public teletext
service as is provided in analogue form does not cause interference with –
(a) the
television broadcasting service or services on whose frequency or frequencies
it is provided; or
(b) any
other wireless telegraphy transmissions.
Sporting
and other events of national interest
299 Categorisation of listed events
(1) For
subsections (1) and (2) of section 97 of the 1996 Act (listed events), there
shall be substituted –
“(1) The Secretary of State may, for the purposes
of this Part, maintain a list of sporting and other events of national
interest, and an event for the time being included in the list is referred to
in this Part as a ‘listed event’.
(1A) A list maintained under subsection (1) must be
divided into two categories, and those categories are referred to in this Part
as ‘Group A’ and ‘Group B’.
(1B) Each listed event must be allocated either to
Group A or to Group B.
(2) Before drawing up such a list, or revising
or ceasing to maintain it, the Secretary of State must consult –
(a) OFCOM,
(b) the BBC,
(c) the Welsh Authority,
and
(d) in relation to a
relevant event, the person from whom the rights to televise that event may be
acquired.
(2A) For the purposes of subsection (2)(d), a
relevant event is an event which the Secretary of State proposes –
(a) to include in a list
maintained under subsection (1),
(b) to omit from such a
list, or
(c) to move from one
category in such a list to the other.”
(2) In
subsection (3)(b) of that section, the words “by the Commission” and “by them”
shall be omitted.
(3) In
subsection (5) of that section –
(a) for the words “addition
of any relevant event to” there shall be substituted “inclusion of any event
in”; and
(b) in paragraph (a),
for “addition” there shall be substituted “inclusion”.
(4) After
that subsection, there shall be inserted –
“(5A) The allocation or transfer of an event to group
A does not affect the validity of a contract entered into before the day on
which the Secretary of State consulted the persons mentioned in
subsection (2) in relation to the proposed allocation or transfer.
(5B) The Secretary of State may direct that, for
the transitional purposes set out in the direction, the transfer of a Group B
event to Group A is not to affect the application to that event of provisions
of this Part relating to a Group B event.”
300 Effects of categorisation of listed events
(1) In
section 99(1) of the 1996 Act (avoidance of contracts for exclusive rights
to televise listed events), for “listed event” there shall be substituted
“Group A listed event”.
(2) In
section 101 of that Act (restriction on televising of listed events), for
subsection (1) there shall be substituted –
“(1) A television programme provider who –
(a) is providing a service
(‘the first service’) falling within either category, and
(b) is providing it with a
view to its being available (within the meaning of Part 3 of the Communications Act 2003) for reception by members of the public in the United Kingdom [and
the Bailiwick of Jersey], or in any area of the United Kingdom [and the
Bailiwick of Jersey],
must not include live coverage of a listed event in that service
unless it is authorised by subsection (1A), (1B) or (1C).
(1A) Live coverage of a listed event is authorised
by this subsection if –
(a) a television programme
provider (other than the provider of the first service) has acquired the right
to include live coverage of the event in his service (‘the second service’);
and
(b) the second
service –
(i) falls into a different category from the
first service, and
(ii) is provided for an area that consists of
or includes all or almost all of the area for which the first service is
provided.
(1B) Live coverage of a listed event is authorised
by this subsection if OFCOM have consented in advance to inclusion of that
coverage in the first service.
(1C) Live coverage of a listed event is authorised
by this subsection if –
(a) the listed event is a
Group B event,
(b) rights to provide
coverage of the event have been acquired by one or more persons in addition to
the provider of the first service,
(c) that additional
coverage constitutes adequate alternative coverage of the event, and
(d) the person or persons
who have acquired rights to provide the additional coverage satisfy the
requirements in relation to that coverage of any regulations made under
section 104ZA for the purposes of this paragraph.
(1D) Subsections (1) to (1C) apply to the coverage
of a part of a listed event as they apply to the coverage of the whole of that
event.”
(3) In
subsection (2) of that section, for “under subsection (1)” there shall be
substituted “for the purposes of subsection (1B).”
(4) After
subsection (4) of that section there shall be inserted –
“(5) References in this section to a category of
service are references to a category of service set out in section 98(1).”
(5) In
section 102(2) of that Act (penalties), for “under subsection (1) of section
101” there shall be substituted “for the purposes of section 101(1B)”.
(6) In
section 103(2) of that Act (reports to the Secretary of State), for “under
subsection (1) of section 101” there shall be substituted “for the purposes of
section 101(1B)”.
301 Code relating to listed events
(1) For
subsection (1) of section 104 of the 1996 Act (code in relation to listed
events) there shall be substituted –
“(1) OFCOM shall draw up, and may from time to
time revise, a code giving guidance –
(a) as to the matters which
they will take into account in determining whether to give or to revoke their
consent for the purposes of section 101(1B) or section 101B(1); and
(b) as to the matters which
they will take into account in determining for the purposes of section 102(1)
or 103(1), whether in all the circumstances it is unreasonable to expect a
television programme provider to comply with section 101(1) or section
101B(1).”
(2) Where
OFCOM are required to draw up a code by virtue of this section –
(a) they shall do so as soon
as practicable after the commencement of this section; but
(b) the code shall have no
effect in relation to any time before the commencement of section 300 of this
Act.
302 Regulations about coverage of listed events
(1) After
section 104 of the 1996 Act there shall be inserted –
“104ZA Regulations about
coverage of listed events
(1) OFCOM may make regulations for determining
for the purposes of this Part –
(a) the circumstances in
which the televising of listed events generally, or of a particular listed
event, is or is not to be treated as live;
(b) what (whether generally
or in relation to particular circumstances) is to be taken to represent the
provision of adequate alternative coverage; and
(c) the requirements that
must be satisfied for the purposes of section 101(1C)(d) by persons who have
acquired rights to provide adequate alternative coverage.
(2) The power conferred by subsection (1)(a)
does not include power to define ‘live’ for the purposes of section 101B.
(3) Section 403 of the Communications Act 2003 (procedure
for regulations and orders made by OFCOM) applies to the power of OFCOM to make
regulations under this section.”
(2) In
section 105(1) (interpretation of Part 4), before the definition of
“Channel 4” there shall be inserted –
“ ‘adequate alternative coverage’ and ‘live’ are to be construed in
accordance with any regulations under section 104ZA;”.
Television
services for the deaf and visually impaired
303 Code relating to provision for the deaf and
visually impaired
(1) It
shall be the duty of OFCOM to draw up, and from time to time to review and
revise, a code giving guidance as to –
(a) the extent to which the
services to which this section applies should promote the understanding and
enjoyment by –
(i) persons who are deaf or hard of hearing,
(ii) persons who are blind or
partially-sighted, and
(iii) persons with a dual
sensory impairment,
of the programmes to be
included in such services; and
(b) the means by which such
understanding and enjoyment should be promoted.
(2) The
code must include provision for securing that every provider of a service to
which this section applies ensures that adequate information about the
assistance for disabled people that is provided in relation to that service is
made available to those who are likely to want to make use of it.
(3) The
code must also require that, from the fifth and tenth anniversaries of the relevant
date, the obligations in subsections (4) and (5), respectively, must be
fulfilled by reference to averages computed over each of the following –
(a) the twelve month period
beginning with the anniversary in question; and
(b) every twelve month period
ending one week after the end of the previous period for which an average fell
to be computed.
(4) The
obligation to be fulfilled from the fifth anniversary of the relevant date is
that at least 60 per cent. of so much of every service which –
(a) is a service to which
this section applies, and
(b) has a relevant date after
the passing of this Act,
as consists of programmes
that are not excluded programmes must be accompanied by subtitling.
(5) The
obligations to be fulfilled from the tenth anniversary of the relevant date
are –
(a) that at least 90 per
cent. of so much of a Channel 3 service or of Channel 4 as consists
of programmes that are not excluded programmes must be accompanied by
subtitling;
(b) that at least 80 per
cent. of so much of every other service to which this section applies as
consists of programmes that are not excluded programmes must be accompanied by
subtitling;
(c) that at least 10 per
cent. of so much of every service to which this section applies as consists of
programmes that are not excluded programmes must be accompanied by
audio-description for the blind; and
(d) that at least 5 per cent.
of so much of every service to which this section applies as consists of
programmes that are not excluded programmes must be presented in, or translated
into, sign language.
(6) A
reference in subsection (4) or in any paragraph of subsection (5) to
excluded programmes is a reference to programmes of the description for the
time being set out under subsection (7) in relation to that subsection or
paragraph and also in relation to the service in question.
(7) The
code must set out, in relation to subsection (4) and each of the
paragraphs of subsection (5), the descriptions of programmes that OFCOM
consider should be excluded programmes for the purposes of the requirement
contained in that subsection or paragraph.
(8) In
complying with subsection (7), OFCOM must have regard, in particular,
to –
(a) the extent of the benefit
which would be conferred by the provision of assistance for disabled people in
relation to the programmes;
(b) the size of the intended
audience for the programmes;
(c) the number of persons who
would be likely to benefit from the assistance and the extent of the likely
benefit in each case;
(d) the extent to which
members of the intended audience for the programmes are resident in places
outside the United Kingdom [and the Bailiwick of Jersey];
(e) the technical difficulty
of providing the assistance; and
(f) the cost, in the context
of the matters mentioned in paragraphs (a) to (e), of providing the
assistance.
(9) The
exclusions that may be set out in the code under subsection (7) –
(a) may include different
descriptions of programmes in relation to different services to which this
section applies; and
(b) in the case of a service
which OFCOM are satisfied (having regard to the matters mentioned in subsection
(8)) is a special case, may include all the programmes included in the service.
(10) The
requirements that may be imposed by the code include, in particular –
(a) requirements on persons
providing services to which this section applies to meet interim targets
falling within subsection (11), from dates falling before an anniversary
mentioned in subsection (3);
(b) requirements on persons
providing such services to meet further targets from dates falling after the
anniversary mentioned in subsection (5); and
(c) requirements with respect
to the provision of assistance for disabled people in relation to excluded
programmes, or in relation to a particular description of them.
(11) The
interim targets mentioned in subsection (10)(a) are the targets with respect to
the provision of assistance for disabled people which OFCOM consider it
appropriate to impose as targets on the way to meeting the targets imposed in
pursuance of subsection (3).
(12) This
section applies to the following services –
(a) * * * * *
(b) any licensed public
service channel;
(c) a digital television
programme service but not an electronic programme guide;
(d) a television licensable
content service but not an electronic programme guide;
(e) a restricted television
service.
(13) In
this section –
“electronic programme
guide” means a service which –
(a) is or is included in a
television licensable content service or a digital television programme
service; and
(b) consists of –
(i) the listing or promotion, or both the
listing and the promotion, of some or all of the programmes included in any one
or more programme services the providers of which are or include persons other
than the provider of the guide; and
(ii) a facility for obtaining
access, in whole or in part, to the programme service or services listed or
promoted in the guide;
“programme” does not
include an advertisement.
304 Procedure for issuing and revising code
under s. 303
(1) Before
drawing up a code under section 303 or reviewing or revising it in pursuance of
that section, OFCOM must consult –
(a) such persons appearing to
them to represent the interests of persons falling within
subsection (1)(a)(i), (ii) or (iii) of that section as OFCOM think fit;
and
(b) such persons providing
services to which that section applies as OFCOM think fit.
(2) OFCOM
must publish the code drawn up under section 303, and every revision of it, in
such manner as, having regard to the need to make the code or revision
accessible to –
(a) persons who are deaf or
hard of hearing,
(b) persons who are blind or
partially sighted, and
(c) persons with a dual
sensory impairment,
they consider appropriate.
305 Meaning of “relevant date” in s. 303
(1) In
relation to a service, the relevant date for the purposes of section 303
is –
(a) in a case to which any of
subsections (2) to (4) applies, the date given by that subsection; and
(b) in any other case, the
date (whether before or after the passing of this Act) when the provision of
that service began or begins.
(2) In
the case of a service the provision of which began before the television
transfer date but which is not –
(a) * * * * *
(b) a licensed public service
channel, or
(c) a digital television
programme service,
the relevant date is the
date of the coming into force of this section.
(3) In
the case of –
(a) a Channel 3 service the
provision of which began before the date of the passing of this Act, and
(b) Channel 4
* * *,
the relevant date is 1st
January 2000.
(4) In
the case of Channel 5, so far as it consists of a service the provision of
which began before the date of the passing of this Act, the relevant date is
1st January 1998.
(5) OFCOM
may determine that a service provided by a person is to be treated for the
purposes of section 303 and this section as a continuation of a service previously
provided by him.
306 Power to modify targets in s. 303
(1) Where
it appears to the Secretary of State, in the case of services of a particular
description, that the obligation specified in section 303(4) has been or is
likely to be fulfilled in their case before the anniversary so specified, he
may by order modify section 303 so as to do one or both of the following –
(a) increase the percentage
so specified in relation to services of that description;
(b) substitute a different
anniversary for the anniversary by which that obligation must be fulfilled in
the case of such services.
(2) The
Secretary of State may by order modify section 303 so as to do one or both of
the following –
(a) substitute a later
anniversary for the anniversary by which the obligations specified in
subsection (5) of that section must be fulfilled;
(b) substitute a higher
percentage for the percentage for the time being specified in any paragraph of
that subsection.
(3) The
provision that may be made by an order under this section includes –
(a) modifications for
requiring the code to set out additional obligations to be fulfilled once the
obligations previously required to be set out in the code have been fulfilled;
and
(b) savings for the
obligations previously set out in the code.
(4) Before
making an order under this section the Secretary of State must consult OFCOM.
(5) * * * * *
307 Observance of code under s. 303
(1) The
regulatory regime for every service to which this section applies includes the
conditions that OFCOM consider appropriate for securing that the code
maintained by them under section 303 is observed in the provision of those
services.
(2) This
section applies to every service to which section 303 applies which is licensed
by a Broadcasting Act licence.
308 Assistance for the visually impaired with
the public teletext service
The regulatory regime for
the public teletext service includes the conditions that OFCOM consider
appropriate for securing, so far as it is reasonable and practicable, by the
inclusion of features in that service, to do so, that persons with disabilities
affecting their sight are able to make use of the service.
Programming
quotas for digital television programme services
309 Quotas for independent programmes
(1) The
regulatory regime for every digital television programme service that is not
comprised in a licensed public service channel includes the conditions that
OFCOM consider appropriate for securing that, in each year, not less than 10
per cent. of the total amount of time allocated to the broadcasting of
qualifying programmes included in the service is allocated to the broadcasting
of a range and diversity of independent productions.
(2) In
subsection (1) –
(a) the reference to
qualifying programmes is a reference to programmes of such description as the
Secretary of State may by order specify as describing the programmes that are
to be qualifying programmes for the purposes of that subsection;
(b) the reference to
independent productions is a reference to programmes of such description as the
Secretary of State may by order specify as describing the programmes that are
to be independent productions for the purposes of that subsection; and
(c) the reference to a range
of independent productions is a reference to a range of such productions in
terms of cost of acquisition as well as in terms of the types of programme
involved.
(3) The
Secretary of State may by order amend subsection (1) by substituting a
different percentage for the percentage for the time being specified in that
subsection.
(4) Before
making an order under this section the Secretary of State must consult OFCOM.
(5) * * * * *
(6) In
this section “programme” does not include an advertisement.
Regulation
of electronic programme guides
310 Code of practice for electronic programme
guides
(1) It
shall be the duty of OFCOM to draw up, and from time to time to review and
revise, a code giving guidance as to the practices to be followed in the
provision of electronic programme guides.
(2) The
practices required by the code must include the giving, in the manner provided
for in the code, of such degree of prominence as OFCOM consider appropriate
to –
(a) the listing or promotion,
or both the listing and promotion, for members of its intended audience, of the
programmes included in each public service channel; and
(b) the facilities, in the
case of each such channel, for members of its intended audience to select or
access the programmes included in it.
(3) The
practices required by the code must also include the incorporation of such
features in electronic programme guides as OFCOM consider appropriate for
securing that persons with disabilities affecting their sight or hearing or
both –
(a) are able, so far as
practicable, to make use of such guides for all the same purposes as persons
without such disabilities; and
(b) are informed about, and
are able to make use of, whatever assistance for disabled people is provided in
relation to the programmes listed or promoted.
(4) Subject
to subsection (5), in subsection (2) the reference to the public service
channels is a reference to any of the following –
(a) any service of television
programmes provided by the BBC in digital form so as to be available for
reception by members of the public;
(b) any Channel 3 service in
digital form;
(c) Channel 4 in digital
form;
(d) Channel 5 in digital
form;
(e) * * * * *
(f) the digital public
teletext service.
(5) The
Secretary of State may by order –
(a) add any programme service
to the services for the time being specified in subsection (4) as public
service channels; or
(b) delete a service from
that subsection.
(6) Before
making an order under subsection (5) the Secretary of State must consult OFCOM.
(7) In
this section “intended audience”, in relation to a service of any description,
means –
(a) if the service is
provided only for a particular area or locality of the United Kingdom [and the
Bailiwick of Jersey], members of the public in that area or locality;
(b) if it is provided for
members of a particular community, members of that community; and
(c) in any other case,
members of the public in the United Kingdom [and the Bailiwick of Jersey].
(8) In
this section “electronic programme guide” means a service which consists
of –
(a) the listing or promotion,
or both the listing and the promotion, of some or all of the programmes
included in any one or more programme services the providers of which are or
include persons other than the provider of the guide; and
(b) a facility for obtaining
access, in whole or in part, to the programme service or services listed or
promoted in the guide.
311 Conditions to comply with code under s. 310
(1) The
regulatory regime for every service consisting in or including an electronic
programme guide includes whatever conditions (if any) OFCOM consider
appropriate for securing that the code maintained by them under section 310 is
observed in the provision of those services.
(2) In
this section “electronic programme guide” has the same meaning as in section
310.
Character
and coverage of radio services
312 Character and coverage of sound broadcasting
services
(1) Section
106 of the 1990 Act (requirements as to character and coverage of local and
national radio services) shall be amended as follows.
(2) In
subsection (1), the words from “except” onwards shall be omitted.
(3) After
subsection (1) (duty to ensure character preserved subject to departures that
do not restrict service) there shall be inserted –
“(1A) Conditions included in a licence for the
purposes of subsection (1) may provide that OFCOM may consent to a departure
from the character of the licensed service if, and only if, they are
satisfied –
(a) that the departure
would not substantially alter the character of the service;
(b) that the departure
would not narrow the range of programmes available by way of relevant
independent radio services to persons living in the area or locality for which
the service is licensed to be provided;
(c) that, in the case of a
local licence, the departure would be conducive to the maintenance or promotion
of fair and effective competition in that area or locality; or
(d) that, in the case of a
local licence, there is evidence that, amongst persons living in that area or
locality, there is a significant demand for, or significant support for, the
change that would result from the departure.
(1B) The matters to which OFCOM must have regard
in determining for the purposes of this section the character of a service
provided under a local licence include, in particular, the selection of spoken
material and music in programmes included in the service.”
(4) For
subsection (5) (restriction on power to extend licence to new area or locality)
there shall be substituted –
“(5) OFCOM shall only exercise the power
conferred on them by subsection (4) if it appears to them –
(a) that to do so would not
result in a significant increase of the area or locality for which the service
in question is licensed to be provided; or
(b) that the increase that
would result is justifiable in the exceptional circumstances of the case.”
(5) After
subsection (6) of that section there shall be inserted –
“(7) In this section ‘relevant independent radio
services’ means the following services so far as they are services falling to
be regulated under section 245 of the Communications Act 2003 –
(a) sound broadcasting
services;
(b) radio licensable
content services;
(c) additional services;
but, in relation to a departure from the character of a service
provided under a local licence, does not include a service that is provided
otherwise than wholly or mainly for reception by persons living and working in
the area or locality in question.”
313 Consultation about change of character of
local services
After section 106 of the
1990 Act there shall be inserted –
“106ZA Consultation about
change of character of local services
(1) Before deciding for the purposes of a condition
imposed under subsection (1A) of section 106 whether to consent to a departure
from the character of a service provided under a local licence on any of the
grounds mentioned in paragraphs (b) to (d) of that subsection, OFCOM must
publish a notice specifying –
(a) the proposed departure;
and
(b) the period in which
representations may be made to OFCOM about the proposal.
(2) That period must end not less than
28 days after the date of publication of the notice.
(3) The notice must be published in such manner
as appears to OFCOM to be appropriate for bringing it to the attention of the
persons who, in OFCOM’s opinion, are likely to be affected by the departure.
(4) OFCOM –
(a) are not required to
publish a notice under this section, and
(b) may specify a period of
less than 28 days in such a notice as the period for representations,
if they consider that the publication of the notice, or allowing a
longer period for representations, would result in a delay that would be likely
prejudicially to affect the interests of the licence holder.
(5) OFCOM are not required under this
section –
(a) to publish any matter
that is confidential in accordance with subsection (6) or (7); or
(b) to publish anything
that it would not be reasonably practicable to publish without disclosing such
a matter.
(6) A matter is confidential under this
subsection if –
(a) it relates specifically
to the affairs of a particular body; and
(b) its publication would
or might, in OFCOM’s opinion, seriously and prejudicially affect the interests
of that body.
(7) A matter is confidential under this
subsection if –
(a) it relates specifically
to the private affairs of an individual; and
(b) its publication would
or might, in OFCOM’s opinion, seriously and prejudicially affect the interests
of that individual.”
314 Local content and character of local sound
broadcasting services
(1) It
shall be the duty of OFCOM to carry out their functions in relation to local
sound broadcasting services in the manner that they consider is best calculated
to secure –
(a) that programmes
consisting of or including local material are included in such services but, in
the case of each such service, only if and to the extent (if any) that OFCOM
consider appropriate in that case; and
(b) that, where such
programmes are included in such a service, what appears to OFCOM to be a
suitable proportion of them consists of locally-made programmes.
(2) OFCOM
must –
(a) draw up guidance as to
how they consider the requirements of subsection (1)(a) and (b) should be
satisfied; and
(b) have regard to that
guidance in carrying out their functions in relation to local sound
broadcasting services.
(3) The
guidance may be different for different descriptions of services.
(4) OFCOM
may revise the guidance from time to time.
(5) Before
drawing up or revising the guidance, OFCOM must consult –
(a) such persons as appear to
them to represent the interests of persons for whom local sound broadcasting
services are or would be provided;
(b) persons holding licences
to provide local sound broadcasting services or persons appearing to represent
such persons, or both; and
(c) such other persons as
they consider appropriate.
(6) OFCOM
must publish the guidance and every revision of it in such manner as they
consider appropriate.
(7) In
this section –
“local material”, in
relation to a local sound broadcasting service, means material which is of
particular interest –
(a) to persons living or
working within the area or locality for which the service is provided;
(b) to persons living or
working within a part of that area or locality; or
(c) to particular communities
living or working within that area or locality or a part of it;
“locally-made”, in
relation to programmes included in a local sound broadcasting service, means
made wholly or partly at premises in the area or locality for which that
service is provided;
“material” includes news,
information and other spoken material and music; and
“programme” does not
include an advertisement.
(8) References
in this section to persons living or working within an area or locality include
references to persons undergoing education or training in that area or
locality.
315 Variations of radio multiplex licences
affecting service characteristics
For subsection (6) of
section 54 of the 1996 Act (variations of radio multiplex licence affecting
service characteristics) there shall be substituted –
“(6) Where the licence holder applies to OFCOM
for the variation of a condition which –
(a) was imposed under
subsection (1)(b), and
(b) relates to the
characteristics of digital sound programme services to be broadcast under the
licence,
then (subject to subsections (6A) and (6B)) OFCOM must vary the
condition in accordance with the application.
(6A) OFCOM are not to vary a national radio
multiplex licence in accordance with an application under subsection (6) if it
appears to them that, if the application were granted, the capacity of the
digital sound programme services broadcast under the licence to appeal to a
variety of tastes and interests would be unacceptably diminished.
(6B) OFCOM are to vary a local radio multiplex
licence in accordance with such an application only if they are
satisfied –
(a) that the variation
would not unacceptably narrow the range of programmes available by way of local
digital sound programme services to persons living in the area or locality for
which the licensed multiplex service is provided;
(b) that the variation
would be conducive to the maintenance or promotion of fair and effective
competition in that area or locality; or
(c) that there is evidence
that, amongst persons living in that area or locality, there is a significant
demand for, or significant support for, the change that would result from the
variation.”
Competition
between licensed providers etc.
* *
*
*
*
*
*
Programme
and fairness standards for television and radio
319 OFCOM’s standards code
(1) It
shall be the duty of OFCOM to set, and from time to time to review and revise,
such standards for the content of programmes to be included in television and
radio services as appear to them best calculated to secure the standards
objectives.
(2) The
standards objectives are –
(a) that persons under the
age of eighteen are protected;
(b) that material likely to
encourage or to incite the commission of crime or to lead to disorder is not
included in television and radio services;
(c) that news included in
television and radio services is presented with due impartiality and that the
impartiality requirements of section 320 are complied with;
(d) that news included in
television and radio services is reported with due accuracy;
(e) that the proper degree of
responsibility is exercised with respect to the content of programmes which are
religious programmes;
(f) that generally accepted
standards are applied to the contents of television and radio services so as to
provide adequate protection for members of the public from the inclusion in
such services of offensive and harmful material;
(g) that advertising that
contravenes the prohibition on political advertising set out in section 321(2)
is not included in television or radio services;
(h) that the inclusion of
advertising which may be misleading, harmful or offensive in television and
radio services is prevented;
(i) that the international
obligations of the United Kingdom [and the Bailiwick of Jersey] with respect to
advertising included in television and radio services are complied with;
(j) that the unsuitable sponsorship
of programmes included in television and radio services is prevented;
(k) that there is no undue
discrimination between advertisers who seek to have advertisements included in
television and radio services; and
(l) that there is no use of
techniques which exploit the possibility of conveying a message to viewers or
listeners, or of otherwise influencing their minds, without their being aware,
or fully aware, of what has occurred.
(3) The
standards set by OFCOM under this section must be contained in one or more
codes.
(4) In
setting or revising any standards under this section, OFCOM must have regard,
in particular and to such extent as appears to them to be relevant to the
securing of the standards objectives, to each of the following matters –
(a) the degree of harm or
offence likely to be caused by the inclusion of any particular sort of material
in programmes generally, or in programmes of a particular description;
(b) the likely size and
composition of the potential audience for programmes included in television and
radio services generally, or in television and radio services of a particular
description;
(c) the likely expectation of
the audience as to the nature of a programme’s content and the extent to which
the nature of a programme’s content can be brought to the attention of
potential members of the audience;
(d) the likelihood of persons
who are unaware of the nature of a programme’s content being unintentionally
exposed, by their own actions, to that content;
(e) the desirability of securing
that the content of services identifies when there is a change affecting the
nature of a service that is being watched or listened to and, in particular, a
change that is relevant to the application of the standards set under this
section; and
(f) the desirability of
maintaining the independence of editorial control over programme content.
(5) OFCOM
must ensure that the standards from time to time in force under this section
include –
(a) minimum standards
applicable to all programmes included in television and radio services; and
(b) such other standards
applicable to particular descriptions of programmes, or of television and radio
services, as appear to them appropriate for securing the standards objectives.
(6) Standards
set to secure the standards objective specified in subsection (2)(e)
shall, in particular, contain provision designed to secure that religious
programmes do not involve –
(a) any improper exploitation
of any susceptibilities of the audience for such a programme; or
(b) any abusive treatment of
the religious views and beliefs of those belonging to a particular religion or
religious denomination.
(7) In
setting standards under this section, OFCOM must take account of such of the
international obligations of the United Kingdom [and the Bailiwick of Jersey]
as the Secretary of State may notify to them for the purposes of this section.
(8) In
this section “news” means news in whatever form it is included in a service.
320 Special impartiality requirements
(1) The
requirements of this section are –
(a) the exclusion, in the
case of television and radio services (other than a restricted service within
the meaning of section 245), from programmes included in any of those services
of all expressions of the views or opinions of the person providing the service
on any of the matters mentioned in subsection (2);
(b) the preservation, in the
case of every television programme service, teletext service, national radio
service and national digital sound programme service, of due impartiality, on
the part of the person providing the service, as respects all of those matters;
(c) the prevention, in the
case of every local radio service, local digital sound programme service or
radio licensable content service, of the giving of undue prominence in the programmes
included in the service to the views and opinions of particular persons or
bodies on any of those matters.
(2) Those
matters are –
(a) matters of political or
industrial controversy; and
(b) matters relating to
current public policy.
(3) Subsection
(1)(a) does not require –
(a) the exclusion from
television programmes of views or opinions relating to the provision of
programme services; or
(b) the exclusion from radio
programmes of views or opinions relating to the provision of programme services.
(4) For
the purposes of this section –
(a) the requirement specified
in subsection (1)(b) is one that (subject to any rules under subsection (5))
may be satisfied by being satisfied in relation to a series of programmes taken
as a whole;
(b) the requirement specified
in subsection (1)(c) is one that needs to be satisfied only in relation to all
the programmes included in the service in question, taken as a whole.
(5) OFCOM’s
standards code shall contain provision setting out the rules to be observed in
connection with the following matters –
(a) the application of the
requirement specified in subsection (1)(b);
(b) the determination of
what, in relation to that requirement, constitutes a series of programmes for
the purposes of subsection (4)(a);
(c) the application of the
requirement in subsection (1)(c).
(6) Any
provision made for the purposes of subsection (5)(a) must, in particular, take
account of the need to ensure the preservation of impartiality in relation to
the following matters (taking each matter separately) –
(a) matters of major
political or industrial controversy, and
(b) major matters relating to
current public policy,
as well as of the need to
ensure that the requirement specified in subsection (1)(b) is satisfied
generally in relation to a series of programmes taken as a whole.
(7) In
this section “national radio service” and “local radio service” mean,
respectively, a sound broadcasting service which is a national service within
the meaning of section 245 and a sound broadcasting service which is a
local service within the meaning of that section.
321 Objectives for advertisements and
sponsorship
(1) Standards
set by OFCOM to secure the objectives mentioned in section 319(2)(a) and
(g) to (j) –
(a) must include general
provision governing standards and practice in advertising and in the sponsoring
of programmes; and
(b) may include provision
prohibiting advertisements and forms and methods of advertising or sponsorship
(whether generally or in particular circumstances).
(2) For
the purposes of section 319(2)(g) an advertisement contravenes the prohibition
on political advertising if it is –
(a) an advertisement which is
inserted by or on behalf of a [person or] body whose objects are wholly or
mainly of a political nature;
(b) an advertisement which is
directed towards a political end; or
(c) an advertisement which
has a connection with an industrial dispute.
(3) For
the purposes of this section objects of a political nature and political ends
include each of the following –
(a) influencing the outcome
of elections or referendums, whether in the United Kingdom[, the Bailiwick of
Jersey] or elsewhere;
(b) bringing about changes of
the law in the whole or a part of the United Kingdom[, the Bailiwick of Jersey]
or elsewhere, or otherwise influencing the legislative process in any country
or territory;
(c) influencing the policies
or decisions of local, regional or national governments, whether in the United
Kingdom[, the Bailiwick of Jersey] or elsewhere;
(d) influencing the policies
or decisions of persons on whom public functions are conferred by or under the
law of the United Kingdom[, the Bailiwick of Jersey] or of a country or
territory outside the United Kingdom [or the Bailiwick of Jersey];
(e) influencing the policies
or decisions of persons on whom functions are conferred by or under
international agreements;
(f) influencing public
opinion on a matter which, in the United Kingdom [or the Bailiwick of Jersey],
is a matter of public controversy;
(g) promoting the interests
of a party or other group of persons organised, in the United Kingdom[, the
Bailiwick of Jersey] or elsewhere, for political ends.
(4) OFCOM –
(a) shall, in relation to
programme services, have a general responsibility with respect to
advertisements and methods of advertising and sponsorship; and
(b) in the discharge of that
responsibility may include conditions in any licence which is granted by them
for any such service that enable OFCOM to impose requirements with respect to
any of those matters that go beyond the provisions of OFCOM’s standards code.
(5) OFCOM
must, from time to time, consult the Secretary of State about –
(a) the descriptions of
advertisements that should not be included in programme services; and
(b) the forms and methods of
advertising and sponsorship that should not be employed in, or in connection
with, the provision of such services.
(6) The
Secretary of State may give OFCOM directions as to the matters mentioned in
subsection (5); and it shall be the duty of OFCOM to comply with any such direction.
(7) Provision
included by virtue of this section in standards set under section 319 is
not to apply to, or to be construed as prohibiting the inclusion in a programme
service of –
(a) an advertisement of a
public service nature inserted by, or on behalf of, a government department; or
(b) a party political or
referendum campaign broadcast the inclusion of which is required by a condition
imposed under section 333 or by paragraph 18 of Schedule 12 to this Act.
(8) In
this section “programme service” does not include a service provided by the
BBC.
322 Supplementary powers relating to advertising
(1) The
regulatory regime for each of the following –
(a) every television
programme service licensed by a Broadcasting Act licence,
(b) the public teletext service,
and
(c) every other teletext
service so licensed that consists in an additional television service or a
digital additional television service,
includes a condition
requiring the person providing the service to comply with every direction given
to him by OFCOM with respect to any of the matters mentioned in subsection (2).
(2) Those
matters are –
(a) the maximum amount of
time to be given to advertisements in any hour or other period;
(b) the minimum interval
which must elapse between any two periods given over to advertisements;
(c) the number of such
periods to be allowed in any programme or in any hour or day; and
(d) the exclusion of
advertisements from a specified part of a licensed service.
(3) Directions
under this section –
(a) may be either general or
specific;
(b) may be qualified or
unqualified; and
(c) may make different
provision for different parts of the day, different days of the week, different
types of programmes or for other differing circumstances.
(4) In
giving a direction under this section, OFCOM must take account of such of the
international obligations of the United Kingdom [on behalf of the Bailiwick of
Jersey] as the Secretary of State may notify to them for the purposes of this
section.
323 Modification of matters to be taken into
account under s. 319
(1) The
Secretary of State may by order modify the list of matters in
section 319(4) to which OFCOM are to have regard when setting or revising
standards.
(2) Before
making an order under this section, the Secretary of State must consult OFCOM.
(3) * * * * *
324 Setting and publication of standards
(1) Before
setting standards under section 319, OFCOM must publish, in such manner as they
think fit, a draft of the proposed code containing those standards.
(2) After
publishing the draft code and before setting the standards, OFCOM must consult
every person who holds a relevant licence and such of the following as they
think fit –
(a) persons appearing to
OFCOM to represent the interests of those who watch television programmes;
(b) persons appearing to
OFCOM to represent the interests of those who make use of teletext services;
and
(c) persons appearing to
OFCOM to represent the interests of those who listen to sound programmes.
(3) After
publishing the draft code and before setting the standards, OFCOM must also
consult –
(a) * * * * *
(b) the BBC, about so much of
the draft code as contains standards other than those for advertising or
sponsorship; and
(c) such of the persons
mentioned in subsection (4) as OFCOM think fit, about so much of the draft code
as contains standards for advertising or sponsorship.
(4) Those
persons are –
(a) persons appearing to
OFCOM to represent the interests of those who will have to take account of the
contents of the proposed standards for advertising or sponsorship;
(b) bodies and associations
appearing to OFCOM to be concerned with the application of standards of conduct
in advertising; and
(c) professional
organisations appearing to OFCOM to be qualified to give relevant advice in
relation to the advertising of particular products.
(5) If
it appears to OFCOM that a body exists which represents the interests of a
number of the persons who hold relevant licences, they may perform their duty
under subsection (2) of consulting such persons, so far as it relates to the
persons whose interests are so represented, by consulting that body.
(6) OFCOM
may set standards under section 319 either –
(a) in the terms proposed in
a draft code published under subsection (1); or
(b) with such modifications
as OFCOM consider appropriate in the light of the consultation carried out as a
result of subsections (2) to (5).
(7) Subsections
(1) to (6) apply to a proposal by OFCOM to revise standards set under section
319 as they apply to a proposal to set such standards.
(8) Where
OFCOM set standards under section 319, they must publish the code containing
the standards in such manner as they consider appropriate for bringing it to
the attention of the persons who, in their opinion, are likely to be affected
by the standards.
(9) Where
OFCOM revise standards set under section 319, they shall so publish the code
containing the standards as revised.
(10) Where
OFCOM publish a code under subsection (8) or (9), they shall send a copy of
it –
(a) to the Secretary of
State;
(b) except in the case of a
code containing standards for advertising or sponsorship, to the BBC; and
(c) if the code relates to
television programme services, to the Welsh Authority.
(11) A
code (or draft code) contains standards for advertising or sponsorship for the
purposes of this section to the extent that it sets standards under section 319
for securing any of the objectives mentioned in any of paragraphs (g) to
(k) of subsection (2) of that section.
(12) In
this section “relevant licence”, in relation to a draft code, means –
(a) to the extent that the
draft code relates to –
(i) television programme services,
(ii) the public teletext
service, or
(iii) an additional television
service,
a licence under Part 1
of the 1990 Act (independent television services), under section 18 of the
1996 Act (digital television programme services) under section 25 of that
Act (digital additional television services) or under section 219 of this
Act; and
(b) to the extent that the
draft code relates to radio programme services, any licence under Part 3
of the 1990 Act (independent radio services), under section 60 of the 1996
Act (digital sound programme service) or under section 64 of that Act
(digital additional services).
325 Observance of standards code
(1) The
regulatory regime for every programme service licensed by a Broadcasting Act
licence includes conditions for securing –
(a) that standards set under
section 319 are observed in the provision of that service; and
(b) that procedures for the
handling and resolution of complaints about the observance of those standards
are established and maintained.
(2) It
shall be the duty of OFCOM themselves to establish procedures for the handling
and resolution of complaints about the observance of standards set under
section 319.
(3) OFCOM
may from time to time make a report to the Secretary of State on any issues
with respect to OFCOM’s standards code which –
(a) have been identified by
them in the course of carrying out their functions; and
(b) appear to them to raise
questions of general broadcasting policy.
(4) The
conditions of a licence which is granted by OFCOM for a programme service must,
for the purpose of securing compliance –
(a) with OFCOM’s standards
code, so far as it relates to advertising and the sponsorship of programmes,
and
(b) with any such
requirements as are mentioned in section 321(4) which relate to
advertising and sponsorship but go beyond that code,
include a condition
requiring the licence holder to comply with every direction given to him by
OFCOM with respect to any of the matters mentioned in subsection (5).
(5) Those
matters are –
(a) the exclusion from the
service of a particular advertisement, or its exclusion in particular
circumstances;
(b) the descriptions of
advertisements and methods of advertising to be excluded from the service
(whether generally or in particular circumstances); and
(c) the forms and methods of
sponsorship to be excluded from the service (whether generally or in particular
circumstances).
(6) OFCOM’s
powers and duties under this section are not to be construed as restricting any
power of theirs, apart from this section –
(a) to include conditions
with respect to the content of programmes included in any service in the
licence to provide that service; or
(b) to include conditions in
a licence requiring the holder of a licence to comply with directions given by
OFCOM or by any other person.
326 Duty to observe fairness code
The regulatory regime for
every programme service licensed by a Broadcasting Act licence includes the
conditions that OFCOM consider appropriate for securing observance –
(a) in
connection with the provision of that service, and
(b) in
relation to the programmes included in that service,
of the code for the time
being in force under section 107 of the 1996 Act (the fairness code).
327 Standards with respect to fairness
(1) Part 5
of the 1996 Act (functions of the Broadcasting Standards Commission which are
transferred to OFCOM so far as they relate to codes of practice and complaints
with respect to fairness and privacy) shall be amended as follows.
(2) No
person shall be entitled to make a standards complaint under that Part at any
time after the coming into force of this section, and no person shall be
required to entertain any such complaint that is so made.
(3) In
section 115 (consideration of fairness complaint) –
(a) in subsection (4)
(matters to be provided in response to a fairness complaint), after paragraph (d)
there shall be inserted –
“(da) to provide OFCOM with
such other things appearing to OFCOM to be relevant to their consideration of
the complaint, and to be in the possession of the relevant person, as may be
specified or described by OFCOM;”
(b) in subsection (7)
(requests in relation to which the relevant person is required to secure the
compliance of another), after paragraph (c) there shall be inserted –
“(ca) a request to provide
OFCOM with such other things appearing to OFCOM to be relevant to their
consideration of the complaint, and to be in the possession of the person
requested, as may be specified or described by OFCOM;”.
(4) For
subsection (7) of section 119 (directions on determination of fairness
complaint) there shall be substituted –
“(7) The regulatory regime for every licensed
service includes the conditions that OFCOM consider appropriate for securing
that the licence holder complies with every direction given to him under this
section.
(7A) Section 263 of the Communications Act 2003 applies in
relation to conditions included by virtue of subsection (7) in the
regulatory regime for a licensed service as it applies in relation to
conditions which are so included by virtue of a provision of Chapter 4 of
Part 3 of that Act.
(7B) It is hereby declared that, where –
(a) OFCOM exercise their
powers under this Part to adjudicate upon a fairness complaint or to give a
direction under subsection (1), and
(b) it appears to them that
the matters to which the complaint in question relates consist in or include a
contravention of the conditions of the licence for a licensed service,
the exercise by OFCOM of their powers under this Part is not to
preclude the exercise by them of their powers under any other enactment in
respect of the contravention.
(7C) Where OFCOM are proposing to exercise any of
their powers in respect of a contravention of a licence condition in a case in
which the contravention relates to matters that have been the subject-matter of
a fairness complaint –
(a) OFCOM may have regard,
in the exercise of those powers, to any matters considered or steps taken by
them for the purpose of adjudicating upon that complaint and to any direction
given by them under this section; but
(b) steps taken for the
purposes of this Part do not satisfy a requirement to give the licence holder
in relation to whom those powers are to be exercised a reasonable opportunity,
before they are exercised, of making representations to OFCOM.”
(5) For
subsection (2) of section 120 of that Act (reports on supplementary action
taken in response to findings on fairness complaint) there shall be
substituted –
“(2) Where the relevant programme was included in
a licensed service, the licence holder shall send to OFCOM a report of any
supplementary action taken by him or by any other person responsible for the
making or provision of the relevant programme.”
328 Duty to publicise OFCOM’s functions in
relation to complaints
(1) The
regulatory regime for every programme service licensed by a Broadcasting Act
licence includes the conditions that OFCOM consider appropriate for securing
that –
(a) the procedures which, by
virtue of section 325, are established and maintained for handling and
resolving complaints about the observance of standards set under section 319,
and
(b) their functions under
Part 5 of the 1996 Act in relation to that service,
are brought to the
attention of the public (whether by means of broadcasts or otherwise).
(2) Conditions
included in a licence by virtue of subsection (1) may require the holder of the
licence to comply with every direction given to him by OFCOM for the purpose
mentioned in that subsection.
Power to
proscribe unacceptable foreign television and radio services
329 Proscription orders
(1) Where –
(a) a foreign service to
which this section applies comes to OFCOM’s attention, and
(b) they consider that the
service is unacceptable and should be the subject of an order under this
section,
they must send a
notification to the Secretary of State giving details of the service and their
reasons for considering that an order should be made.
(2) A
service is not to be considered unacceptable by OFCOM unless they are satisfied
that –
(a) programmes containing
objectionable matter are included in the service; and
(b) that the inclusion of
objectionable matter in programmes so included is occurring repeatedly.
(3) Matter
is objectionable for the purposes of subsection (2) only if –
(a) it offends against taste
or decency;
(b) it is likely to encourage
or to incite the commission of crime;
(c) it is likely to lead to
disorder; or
(d) it is likely to be
offensive to public feeling.
(4) Where
the Secretary of State has received a notification under this section in the
case of a service, he may make an order –
(a) identifying the service
in such manner as he thinks fit; and
(b) proscribing it.
(5) The
Secretary of State is not to make an order proscribing a service unless he is
satisfied that the making of the order is –
(a) in the public interest;
and
(b) compatible with the
international obligations of the United Kingdom [on behalf of the Bailiwick of
Jersey].
(6) The
television and sound services to which this section applies are –
(a) television licensable
content services provided otherwise than by broadcasting from a satellite;
(b) digital television
programme services;
(c) digital additional
television services;
(d) radio licensable sound
services provided otherwise than by being broadcast from a satellite;
(e) digital sound programme
services; and
(f) digital additional sound
services.
(7) A
service to which this section applies is a foreign service if it –
(a) is a service capable of
being received in the United Kingdom [or the Bailiwick of Jersey] for the provision
of which no Broadcasting Act licence is either in force or required to be in
force; but
(b) is also a service for the
provision of which such a licence would be required –
(i) in the case of a service falling within
subsection (6)(a) to (c), if the person providing it were under the
jurisdiction of the United Kingdom [on behalf of the Bailiwick of Jersey] for
the purposes of the Television without Frontiers Directive; and
(ii) in any other case, if
the person providing it provided it from a place in the United Kingdom [and the
Bailiwick of Jersey] or were a person whose principal place of business is in
the United Kingdom [and the Bailiwick of Jersey].
330 Effect of proscription order
(1) This
section applies where a service is for the time being proscribed by an order
under section 329.
(2) The
proscribed service is not to be included in –
(a) a multiplex service; or
(b) a cable package.
(3) In
this section “multiplex service” means a television multiplex service, a radio
multiplex service or a general multiplex service.
(4) In
this section “cable package” means (subject to subsection (5)) a service by
means of which programme services are packaged together with a view to their
being distributed –
(a) by means of an electronic
communications service;
(b) so as to be available for
reception by members of the public in the United Kingdom [or the Bailiwick of
Jersey]; and
(c) without the final
delivery of the programme services to the persons to whom they are distributed
being by wireless telegraphy.
(5) Programme
services distributed by means of an electronic communications service do not
form part of a cable package if –
(a) the distribution of those
services forms only part of a service provided by means of that electronic
communications service; and
(b) the purposes for which
the service of which it forms a part is provided do not consist wholly or
mainly in making available television programmes or radio programmes (or both)
for reception by members of the public.
331 Notification for enforcing proscription
(1) Where
OFCOM determine that there are reasonable grounds for believing that there has
been a contravention of section 330 in relation to a multiplex service or
a cable package, they may give a notification under this section to –
(a) the provider of that
multiplex service; or
(b) the person providing the
cable package.
(2) A
notification under this section is one which –
(a) sets out the
determination made by OFCOM; and
(b) requires the person to
whom it is given to secure that the proscribed service (so long as it remains
proscribed) is not –
(i) included in the notified person’s
multiplex service, or
(ii) distributed as part of
his cable package,
at any time more than
seven days after the day of the giving of the notification.
(3) If
it is reasonably practicable for a person to whom a notification is given under
this section to secure that the proscribed service ceases to be included in
that person’s multiplex service, or to be distributed as part of his cable
package, before the end of that seven days, then he must do so.
(4) It
shall be the duty of a person to whom a notification is given under this
section to comply with the requirements imposed by the notification and by
subsection (3).
(5) That
duty shall be enforceable in civil proceedings by OFCOM –
(a) for an injunction;
(b) * * * * *
(c) for any other appropriate
remedy or relief.
(6) In
this section “cable package” and “multiplex service” each has the same meaning
as in section 330.
332 Penalties for contravention of notification
under s. 331
(1) OFCOM
may impose a penalty on a person who contravenes a requirement imposed on him
by or under section 331.
(2) Before
imposing a penalty on a person under this section OFCOM must give him a
reasonable opportunity of making representations to them about their proposal
to impose the penalty.
(3) The
amount of the penalty imposed on a person is to be such amount not exceeding
£5,000 as OFCOM determine to be –
(a) appropriate; and
(b) proportionate to the
contravention in respect of which it is imposed.
(4) In
making that determination OFCOM must have regard to –
(a) any representations made
to them by the person notified under section 331; and
(b) any steps taken by him
for complying with the requirements imposed on him under that section.
(5) Where
OFCOM impose a penalty on a person under this section, they shall –
(a) notify the person
penalised; and
(b) in that notification, fix
a reasonable period after it is given as the period within which the penalty is
to be paid.
(6) A
penalty imposed under this section must be paid to OFCOM within the period
fixed by them.
[(7) An order made by the Secretary of State in the United Kingdom
under section 332(1) shall not have effect in the Bailiwick of Jersey
until it has been registered in the Royal Court, and where such an order is so
registered, it shall have effect on the day following the say of such
registration or on the day of coming into force specified in the Order,
whichever is the later.]
(8) * * * * *
(9) For
the purposes of this section there is a separate contravention in respect of
every day on which the proscribed service is at any time included in a person’s
multiplex service or distributed as part of his cable package.
(10) In
this section “multiplex service” and “cable package” each has the same meaning
as in section 330.
Party
political broadcasts on television and radio
* *
*
*
*
*
*
Monitoring
of programmes
334 Retention and production of recordings
(1) The
regulatory regime for every programme service licensed by a Broadcasting Act
licence includes conditions imposing on the provider of the service –
(a) a requirement in respect
of every programme included in the service to retain a recording of the
programme in a specified form and for a specified period after its inclusion;
(b) a requirement to comply
with any request by OFCOM to produce to them for examination or reproduction a
recording retained in pursuance of the conditions in the licence; and
(c) a requirement, if the
provider is able to do so, to comply with any request by OFCOM to produce to
them a script or transcript of a programme included in the programme service.
(2) The
period specified for the purposes of a condition under subsection (1)(a)
must be –
(a) in the case of a programme
included in a television programme service, a period not exceeding ninety days;
and
(b) in the case of a
programme included in a radio programme service, a period not exceeding
forty-two days.
(3) For
the purpose of maintaining supervision of the programmes included in programme
services, OFCOM may themselves make and use recordings of those programmes or
any part of them.
(4) Nothing
in this Part is to be construed as requiring OFCOM, in the carrying out of
their functions under this Part as respects programme services and the
programmes included in them, to view or listen to programmes in advance of
their being included in such services.
International
obligations
335 Conditions securing compliance with
international obligations
(1) The
regulatory regime for every service to which this section applies includes the
conditions that OFCOM consider appropriate for securing that the relevant
international obligations of the United Kingdom [on behalf of the Bailiwick of
Jersey] are complied with.
(2) In
this section “relevant international obligations of the United Kingdom” means
the international obligations of the United Kingdom [on behalf of the Bailiwick
of Jersey] which have been notified to OFCOM by the Secretary of State for the
purposes of this section.
(3) This
section applies to the following services –
(a) any Channel 3 service;
(b) Channel 4;
(c) Channel 5;
(d) the public teletext
service;
(e) any television licensable
content service;
(f) any digital television
programme service;
(g) any additional television
service;
(h) any digital additional
television service;
(i) any restricted
television service.
(4) The
conditions included in any licence in accordance with the other provisions of
this Chapter are in addition to any conditions included in that licence in
pursuance of this section and have effect subject to them.
Government
requirements for licensed services
336 Government requirements for licensed
services
(1) If
it appears to [the Economic Development Committee of the States of Jersey] to
be appropriate to do so
* * * may
at any time by notice require OFCOM to give a direction under subsection (2).
(2) A
direction under this subsection is a direction to the holders of the Broadcasting Act licences [in the
Bailiwick of Jersey] specified in the notice under subsection (1) to
include an announcement so specified in their licensed services.
(3) The
direction may specify the times at which the announcement is to be broadcast or
otherwise transmitted.
(4) Where
the holder of a Broadcasting Act licence includes an announcement in his
licensed service in pursuance of a direction under this section, he may
announce that he is doing so in pursuance of such a direction.
(5) The
[Economic Development Committee of the States of Jersey] may, at any time, by
notice require OFCOM to direct the holders of the Broadcasting Act licences [in the
Bailiwick of Jersey] specified in the notice to refrain from including in their
licensed services any matter, or description of matter, specified in the notice.
(6) Where –
(a) OFCOM have given the
holder of a Broadcasting Act licence [in the Bailiwick of Jersey] a direction
in accordance with a notice under subsection (5),
(b) in consequence of the
revocation by the [Economic Development Committee of the States of Jersey] of
such a notice, OFCOM have revoked such a direction, or
(c) such a notice has
expired,
the holder of the licence
in question may include in the licensed service an announcement of the giving
or revocation of the direction or of the expiration of the notice, as the case
may be.
(7) OFCOM
must comply with every requirement contained in a notice under this section.
(8) The
powers conferred by this section are in addition to any powers specifically
conferred on the [Economic Development Committee of the States of Jersey or any
other Committee of the States] by or under this Act or any other enactment.
(9) * * * * *
Equal
opportunities and training
337 Promotion of equal opportunities and
training
* *
*
*
*
*
*
Corresponding
rules for the BBC and Welsh Authority
338 Corresponding rules for the BBC * * *
Schedule 12 (which
provides for the imposition on the BBC
* * * of obligations
corresponding to obligations included in the regulatory regime for licensed
providers) shall have effect.
Enforcement
against the Welsh Authority
* *
*
*
*
*
*
Enforcement
of licence conditions
344 Transmission of statement of findings
(1) Sections
40 and 109 of the 1990 Act (power to direct licensee to broadcast correction or
apology) shall be amended as follows.
(2) For
“apology”, wherever occurring, there shall be substituted “a statement of
findings”.
(3) After
subsection (5), there shall be inserted –
“(6) For the purposes of this section a statement
of findings, in relation to a case in which OFCOM are satisfied that the holder
of a licence has contravened the conditions of his licence, is a statement of
OFCOM’s findings in relation to that contravention.”
345 Financial penalties imposable on licence
holders
Schedule 13 (which
modifies the maximum penalties that may be imposed on the holders of
Broadcasting Act licences) shall have effect.
346 Recovery of fees and penalties
(1) This
section applies to the following amounts –
(a) any amount payable to
OFCOM under a Broadcasting Act licence;
(b) the amount of a penalty
imposed by OFCOM under Part 1 or 3 of the 1990 Act, Part 1 or 2 of
the 1996 Act or this Part of this Act.
(2) Every
amount to which this section applies shall be recoverable by OFCOM as a debt
due to them from the person obliged to pay it.
(3) The
following liabilities –
(a) a person’s liability to
have a penalty imposed on him under Part 1 or 3 of the 1990 Act, Part 1
or 2 of the 1996 Act or this Part in respect of acts or omissions of his
occurring while he was the holder of a Broadcasting Act licence, and
(b) a liability of a person
as the holder of such a licence to pay an amount to which this section applies,
are not affected by that
person’s Broadcasting Act licence having ceased (for any reason) to be in force
before the imposition of the penalty or the payment of that amount.
Broadcasting
Act licence fees
347 Statement of charging principles
(1) OFCOM
are not to fix a tariff under section 4(3) or 87(3) of the 1990 Act or under
section 4(3) or 43(3) of the 1996 Act (tariffs for fees payable under
Broadcasting Act licences for recovering OFCOM’s costs) unless –
(a) at the time they do so,
there is in force a statement of the principles that OFCOM are proposing to
apply in fixing that tariff; and
(b) the tariff is fixed in
accordance with those principles.
(2) Those
principles must be such as appear to OFCOM to be likely to secure, on the basis
of such estimates of the likely costs that it is practicable for them to
make –
(a) that the aggregate amount
of the Broadcasting
Act licence fees that are required to be paid to
OFCOM during a financial year is sufficient to enable them to meet, but does
not exceed, the cost to them of the carrying out during that year of their
functions relating to the regulation of broadcasting;
(b) that the requirement
imposed by virtue of paragraph (a) is satisfied by the application to such
fees of tariffs that are justifiable and proportionate to the matters in respect
of which they are imposed; and
(c) that the relationship
between meeting the cost of carrying out those functions and the tariffs
applied to such fees is transparent.
(3) Before
making or revising a statement of principles OFCOM must consult such of the
persons who, in OFCOM’s opinion, are likely to be affected by those principles
as they think fit.
(4) The
making or revision of a statement of principles for the purposes of this
section has to be by the publication of the statement, or revised statement, in
such manner as OFCOM consider appropriate for bringing it to the attention of
the persons who, in their opinion, are likely to be affected by it.
(5) As
soon as reasonably practicable after the end of each financial year, OFCOM must
publish a statement setting out, for that year –
(a) the aggregate amount
received by them during that year in respect of Broadcasting Act licence fees
required to be paid during that year;
(b) the aggregate amount
outstanding and likely to be paid or recovered in respect of Broadcasting Act
licence fees that are required to be so paid; and
(c) the cost to OFCOM of the
carrying out during that year of their functions relating to the regulation of
broadcasting.
(6) Any
deficit or surplus shown (after applying this subsection for all previous
years) by a statement under subsection (5) shall be –
(a) carried forward; and
(b) taken into account in
determining what is required to satisfy the requirement imposed by virtue of
subsection (2)(a) in relation to the following year.
(7) References
in this section to OFCOM’s functions relating to the regulation of broadcasting
do not include references to any of their functions in relation to the BBC
* * *.
(8) In
this section –
“Broadcasting Act licence
fee” means a fee required to be paid to OFCOM in pursuance of conditions
included in a Broadcasting Act licence under any of the following
provisions –
(a) section 4(1)(b) or
87(1)(c) of the 1990 Act; or
(b) section 4(1)(b) or
43(1)(c) of the 1996 Act;
“financial year” means a period
of twelve months ending with 31st March.
CHAPTER 5
MEDIA
OWNERSHIP AND CONTROL
Restrictions
on licence holders
348 Modification of disqualification provisions
(1) In
Part 2 of Schedule 2 to the 1990 Act (disqualification from holding
licences), paragraphs (a) and (b) of paragraph 1(1) (individuals and
bodies from outside the member States) shall cease to have effect.
(2) In
sub-paragraph (1) of paragraph 2 of that Part (disqualification of
religious bodies etc.), for the words before paragraph (a) there shall be
substituted –
“2 (1) The following persons are disqualified persons
in relation only to licences falling within sub-paragraph (1A) –”.
(3) For
sub-paragraphs (2) and (3) of that paragraph there shall be
substituted –
“(1A) A licence falls within this sub-paragraph if it
is –
(a) a Channel 3 licence;
(b) a Channel 5 licence;
(c) a national sound
broadcasting licence;
(d) a public teletext
licence;
(e) an additional
television service licence;
(f) a television multiplex
licence; or
(g) a radio multiplex
licence.
‘additional television service licence’ means a licence under Part 1
of this Act to provide an additional television service within the meaning of
Part 3 of the Communications
Act 2003;
‘Channel 3 licence’ and ‘Channel 5 licence’ each has the same
meaning as in Part 1 of this Act;
‘national sound broadcasting licence’ means a licence to provide a
sound broadcasting service (within the meaning of Part 3 of this Act)
which is a national service (within the meaning of that Part);
‘public teletext licence’ means a licence to provide the public
teletext service (within the meaning of Part 3 of the Communications Act 2003);
‘radio multiplex licence’ means a licence under Part 2 of the Broadcasting Act 1996 to provide a
radio multiplex service within the meaning of that Part; and
‘television multiplex licence’ means a licence under Part 1 of
the Broadcasting Act 1996 to
provide a multiplex service within the meaning of that Part.”
(4) In
paragraph 4(2)(b) of that Part (bodies that are relevant bodies for the
purposes of general disqualification on grounds of undue influence) for “as
mentioned in paragraph (a)(i) or (ii) above” there shall be
substituted –
“(i) by a person falling within paragraph
1(1)(c) to (g) above;
(ii) by a person falling within paragraph 3
above; or
(iii) by two or more persons taken together each
of whom falls within sub-paragraph (i) or (ii) (whether or not they all
fall within the same sub-paragraph).”
(5) The
Secretary of State may by order make provision –
(a) for repealing paragraph 2
of Part 2 of Schedule 2 to the 1990 Act; or
(b) for making such other
modifications of that paragraph and any enactment referring to it as he thinks
fit.
(6) * * * * *
(7) * * * * *
349 Licence holding by local authorities
* *
*
*
*
*
*
350 Relaxation of licence-holding restrictions
(1) Parts 3
to 5 of Schedule 2 to the 1990 Act (restrictions on accumulations of
interests and on licence holding by newspaper proprietors and public
telecommunications providers) shall cease to have effect.
(2) In
each of sections 5 and 88 of the 1990 Act and of sections 5 and 44 of the 1996
Act (under which the provisions of Schedule 2 to the 1990 Act are given
effect), for paragraph (b) of subsection (1) there shall be
substituted –
“(b) that a person does not
become the holder of a licence if requirements imposed by or under Schedule 14
to the Communications
Act 2003 would be contravened were he to do so;
and
(c) that those requirements
are not contravened in the case of a person who already holds a licence.”
(3) Schedule 14
(which provides for the imposition of requirements which, in the case of
Channel 3 services and certain radio services, replace those imposed by or
under Parts 3 and 4 of Schedule 2 to the 1990 Act and requires
approval for the holding of certain licences by religious bodies etc.) shall
have effect.
(4) The
Secretary of State must not by order under section 411 appoint a day falling
before the commencement day for paragraph 11 of Schedule 14 as the day for
the coming into force of the repeal by this Act of any of the provisions of
Parts 3 and 4 of Schedule 2 to the 1990 Act so far as they relate to
the holding of licences for the provision of any local services (within the
meaning of Part 3 of that Act).
(5) The
Secretary of State must not by order under section 411 appoint a day falling
before the commencement day for paragraph 12 of Schedule 14 as the day for
the coming into force of the repeal by this Act of any of the provisions of
Parts 3 and 4 of Schedule 2 to the 1990 Act so far as they relate to
the holding of local digital sound programme licences or the provision of local
digital sound programme services.
(6) In
this section “the commencement day”, in relation paragraph 11 or 12 of Schedule 14,
means the day on which the first order to be made under that paragraph comes
into force.
Changes
of control
351 Changes of control of Channel 3 services
(1) The
regulatory regime for every Channel 3 service provided by a body corporate
includes –
(a) a condition requiring the
licence holder to give OFCOM advance notification of any proposals known to the
body that may give rise to a relevant change of control; and
(b) a condition requiring the
licence holder to provide OFCOM, in such manner and at such times as they may
reasonably require, with such information as they consider necessary for the
purposes of exercising their functions under this section and section 352.
(2) OFCOM
must carry out a review where –
(a) they receive
notification, in accordance with a condition of a Channel 3 licence, of
proposals that may give rise to a relevant change of control; or
(b) a relevant change of
control takes place (whether or not that change has been previously notified to
OFCOM).
(3) The
review shall be a review of the effects or likely effects, in relation to the
matters mentioned in subsections (4) to (7), of –
(a) the change to which the
proposals may give rise; or
(b) the change that has taken
place.
(4) The
matters mentioned in this subsection are –
(a) the extent to which time
available for broadcasting programmes included in the service is allocated to
programmes of each of the following descriptions –
(i) original productions;
(ii) news programmes; and
(iii) current affairs
programmes;
(b) the extent to which
programmes of each of those descriptions that are included in the service are
broadcast at peak viewing times.
(5) The
matters mentioned in this subsection are –
(a) the extent to which
Channel 3 programmes made in the [or the Bailiwick of Jersey] that are included
in the service are programmes made outside the M25 area;
(b) the range of Channel 3
programmes made in the [or the Bailiwick of Jersey] outside that area that are
included in the service;
(c) the extent to which the
expenditure of the provider of the service on Channel 3 programmes is referable
to programme production at different production centres outside the M25 area;
(d) the range of different
such production centres to which that expenditure is referable.
(6) The
matters mentioned in this subsection are –
(a) the quality and range of
regional programmes included in the service;
(b) the quality and range of
other programmes included in the service which contribute to the regional
character of the service;
(c) the quality and range of
the programmes made available by the licence holder for the purposes of
inclusion in the nationwide system of services referred to in section 14(1) of
the 1990 Act (nationwide Channel 3 service).
(7) The
matters mentioned in this subsection are –
(a) the amount of time given,
in the programmes included in the service –
(i) to regional programmes; and
(ii) to programmes included
in the service which contribute to the regional character of the service;
(b) the proportion of
regional programmes included in the service which are made within the area for
which the service is provided;
(c) the extent of the use, in
connection with the service, of the services of persons employed (whether by
the licence holder or any other person) within that area;
(d) the extent to which
managerial or editorial decisions relating to programmes to be included in the
service are taken by persons so employed within that area.
(8) In
relation to a national Channel 3 service, subsections (3) to (7) have effect as
if –
(a) subsection (5) applied
only where the service is subject to conditions imposed by virtue of a decision
of OFCOM under section 286(2) or OFCOM otherwise consider, having regard to the
nature of the service, that it is appropriate to consider the matters mentioned
in that subsection;
(b) references to regional
programmes were references to programmes which are regional programmes (within the
meaning of section 287) in relation to that service and are included in it
in accordance with a condition imposed under subsection (4)(a) of that section;
(c) references to the
regional character of the service were references to the regional character of
parts of the service;
(d) subsection (6)(c) of this
section were omitted; and
(e) references, in relation
to programmes such as are mentioned in paragraph (b), to the area for
which the service is provided were references to the part of that area where
the people are living to whom those programmes are likely to be of particular
interest.
(9) Where
OFCOM carry out a review under subsection (2), they must publish a report of
that review –
(a) setting out their
conclusions; and
(b) specifying any steps
which they propose to take under section 352.
(10) In
this section –
“Channel 3 programmes” and
“expenditure” each has the same meaning as in section 286;
“original production” has
the same meaning as in section 278;
“peak viewing time” –
(a) in relation to original
productions, means a time determined by OFCOM for the purposes of section 278
to be a peak viewing time for the service in question; and
(b) in relation to news
programmes or current affairs programmes, means a time so determined for the
purposes of section 279;
“regional programme”, in
relation to a Channel 3 service, means (subject to subsection (8)) a programme
(including a news programme) which is of particular interest –
(a) to persons living within
the area for which the service is provided;
(b) to persons living within
a part of that area; or
(c) to particular communities
living within that area;
“relevant change of
control” means a change in the persons having control over –
(a) a body holding the
licence to provide a Channel 3 service; or
(b) any body which –
(i) is connected with a body holding such a
licence; and
(ii) is involved, to a
substantial extent, in the provision of the programmes included in the service
provided under that licence, or is likely to become so involved.
(11) Expressions
used in this section and in Part 1 of Schedule 2 to the 1990 Act
(restrictions on licence holders) have the same meanings in this section as in
that Part.
352 Action following review under s. 351
(1) If,
on a review under subsection (2) of section 351, it appears to OFCOM that the
relevant change of control is or would be prejudicial to one or more of the
matters mentioned in subsections (4) to (6) of that section, they shall vary
the licence in accordance with subsection (2).
(2) The
variation –
(a) must be made with a view
to ensuring that the relevant change of control is not prejudicial to any of
the matters so mentioned; and
(b) must be a variation for
the inclusion in the licence of such conditions relating to any of those
matters as they consider appropriate.
(3) If
it appears to OFCOM, having regard to the matters mentioned in subsection (7)
of section 351 –
(a) that the proposed change
of control would be prejudicial to the regional character of the service or (as
the case may be) of any parts of it, or
(b) that the actual change of
control is so prejudicial,
they may vary the licence
so as to include in it such conditions relating to any of those matters as they
consider appropriate.
(4) Subject
to subsection (5), any new or varied condition imposed under this section in
relation to any matter may be more onerous than the conditions relating to that
matter having effect before the relevant change of control.
(5) A
variation under this section must not provide for the inclusion of a new or
varied condition in a licence unless the new condition, or the condition as
varied, is one which (with any necessary modifications) would have been
satisfied by the licence holder throughout the twelve months immediately before
the relevant date.
(6) In
subsection (5) “the relevant date” is the date of the relevant change of
control or, if earlier, the date on which OFCOM exercise their powers under
this section.
(7) A
variation of a licence under this section shall be effected by the service of a
notice of the variation on the licence holder.
(8) OFCOM
are not to serve a notice of a variation under this section unless they have
given the body on whom it is served a reasonable opportunity, after the
publication of the report of the review under section 351, of making
representations to them about the variation.
(9) Where,
in a case of a proposed change of control, a notice varying a licence under
this section is served before the change to which it relates takes place, the
variation is not to take effect until the change takes place.
(10) A
condition included in a licence by a variation under this section may be
further varied by OFCOM either –
(a) with the consent of the
licence holder; or
(b) in any other case, after
complying with the requirements of section 3(4)(b) of the 1990 Act
(variation after giving opportunity for representations by the licence holder).
(11) Expressions
used in this section and section 351 have the same meanings in this section as
in that.
353 Changes of control of Channel 5
(1) The
regulatory regime for Channel 5 includes, in every case where it is provided by
a body corporate –
(a) a condition requiring the
licence holder to give OFCOM advance notification of any proposals known to the
body that may give rise to a relevant change of control; and
(b) a condition requiring the
licence holder to provide OFCOM, in such manner and at such times as they may
reasonably require, with such information as they consider necessary for the
purposes of exercising their functions under this section and section 354.
(2) OFCOM
must carry out a review where –
(a) they receive notification,
in accordance with a condition of the licence to provide Channel 5, of
proposals that may give rise to a relevant change of control; or
(b) a relevant change of
control takes place (whether or not that change has been previously notified to
OFCOM).
(3) The
review shall be a review of the effects or likely effects, in relation to the
matters mentioned in subsections (4) and (5), of –
(a) the change to which the
proposals may give rise; or
(b) the change that has taken
place.
(4) The
matters mentioned in this subsection are –
(a) the extent to which time
available for broadcasting programmes included in Channel 5 is allocated to
programmes of each of the following descriptions –
(i) original productions;
(ii) news programmes; and
(iii) current affairs programmes;
(b) the extent to which
programmes of each of those descriptions that are included in that Channel are
broadcast at peak viewing times.
(5) The
matters mentioned in this subsection are –
(a) the extent to which
programmes made in the United Kingdom that are included in the service are
programmes made outside the M25 area;
(b) the range of programmes
made in the United Kingdom outside that area that are included in Channel 5;
(c) the extent to which the
expenditure of the provider of Channel 5 on programmes made in the United
Kingdom is referable to programme production at different production centres
outside the M25 area;
(d) the range of different
such production centres to which that expenditure is referable.
(6) Where
OFCOM carry out a review under subsection (2), they must publish a report
of that review –
(a) setting out their
conclusions; and
(b) specifying any steps
which they propose to take under section 354.
(7) In
this section –
“expenditure”, in relation
to a programme, means –
(a) expenditure which
constitutes an investment in or is otherwise attributable to the making of the
programme; or
(b) expenditure on the
commissioning or other acquisition of the programme or on the acquisition of a
right to include it in a service or to have it broadcast;
“original production” has
the same meaning as in section 278;
“peak viewing time” –
(a) in relation to original
productions, means a time determined by OFCOM for the purposes of section 278
to be a peak viewing time for Channel 5; and
(b) in relation to news
programmes or current affairs programmes, means a time so determined for the
purposes of section 279;
“relevant change of
control” means a change in the persons having control over –
(a) a body holding a licence
to provide Channel 5; or
(b) any body which –
(i) is connected with a body holding such a
licence; and
(ii) is involved, to a
substantial extent, in the provision of the programmes included in that
channel, or is likely to become so involved.
(8) Expressions
used in this section and in Part 1 of Schedule 2 to the 1990 Act
(restrictions on licence holders) have the same meanings in this section as in
that Part.
354 Action following review under s. 353
(1) If,
on a review under subsection (2) of section 353, it appears to OFCOM that the relevant
change of control is or would be prejudicial to one or more of the matters
mentioned in subsections (4) and (5) of that section, they shall vary the
licence in accordance with subsection (2).
(2) The
variation –
(a) must be made with a view
to ensuring that the relevant change of control is not prejudicial to any of
the matters so mentioned; and
(b) must be a variation for
the inclusion in the licence of such conditions relating to any of those
matters as they consider appropriate.
(3) Subject
to subsection (4), any new or varied condition imposed under this section in
relation to any matter may be more onerous than the conditions relating to that
matter having effect before the relevant change of control.
(4) A
variation under this section must not provide for the inclusion of a new or
varied condition in a licence unless the new condition, or the condition as
varied, is one which (with any necessary modifications) would have been
satisfied by the licence holder throughout the twelve months immediately before
the relevant date.
(5) In
subsection (4) “the relevant date” is the date of the relevant change of
control or, if earlier, the date on which OFCOM exercise their powers under
this section.
(6) A
variation of a licence under this section shall be effected by the service of a
notice of the variation on the licence holder.
(7) OFCOM
are not to serve a notice of a variation under this section unless they have
given the body on whom it is served a reasonable opportunity, after the
publication of the report of the review under section 353, of making
representations to them about the variation.
(8) Where,
in a case of a proposed change of control, a notice varying a licence under
this section is served before the change to which it relates takes place, the
variation is not to take effect until the change takes place.
(9) A
condition included in a licence by a variation under this section may be
further varied by OFCOM either –
(a) with the consent of the
licence holder; or
(b) in any other case, after
complying with the requirements of section 3(4)(b) of the 1990 Act
(variation after giving opportunity for representations by the licence holder).
(10) Expressions
used in this section and section 353 have the same meanings in this section as
in that.
355 Variation of local licence following change
of control
(1) The
regulatory regime for every local sound broadcasting service provided by a body
corporate includes –
(a) a condition requiring the
licence holder to give OFCOM advance notification of any proposals known to it
that may give rise to a relevant change of control; and
(b) a condition requiring the
licence holder to provide OFCOM, in such manner and at such times as they may
reasonably require, with such information as they consider necessary for the purposes
of exercising their functions under this section and section 356.
(2) OFCOM
must carry out a review where –
(a) they receive
notification, in accordance with a condition of a local sound broadcasting
licence, of proposals that may give rise to a relevant change of control; or
(b) a relevant change of
control takes place (whether or not that change has been previously notified to
OFCOM).
(3) The
review shall be a review of the effects or likely effects, in relation to the
matters mentioned in subsection (4), of –
(a) the change to which the
proposals may give rise; or
(b) the change that has taken
place.
(4) Those
matters are –
(a) the quality and range of
programmes included in the service;
(b) the character of the
service;
(c) the extent to which OFCOM’s
duty under section 314 is performed in relation to the service.
(5) The
matters to which OFCOM must have regard in determining for the purposes of this
section the character of a local sound broadcasting service, include, in
particular, the selection of spoken material and music in programmes included
in the service.
(6) Where
OFCOM carry out a review under subsection (2), they must publish a report
of that review –
(a) setting out their
conclusions; and
(b) specifying any steps
which they propose to take under section 356.
(7) In
this section “relevant change of control” means a change in the persons having
control over –
(a) a body holding the
licence to provide a local sound broadcasting service; or
(b) any body which –
(i) is connected with a body holding such a
licence; and
(ii) is involved, to a
substantial extent, in the provision of the programmes included in the service
provided under that licence, or is likely to become so involved.
(8) Expressions
used in this section and in Schedule 2 to the 1990 Act (restrictions on
licence holders) have the same meanings in this section as in that Schedule.
356 Action following review under s. 355
(1) If,
on a review under section 355, it appears to OFCOM that the relevant change of
control is or would be prejudicial to one or more of the matters mentioned in
subsection (4) of that section, they must vary the local licence in accordance
with subsection (2).
(2) The
variation –
(a) must be made with a view
to ensuring that the relevant change of control is not prejudicial to any of
the matters so mentioned; and
(b) must be a variation for
the inclusion in the licence of such conditions relating to any of those
matters as they consider appropriate.
(3) Subject
to subsection (4), any new or varied condition imposed under this section in
relation to any matter may be more onerous than the conditions relating to that
matter having effect before the relevant change of control.
(4) A
variation under this section must not provide for the inclusion of any new or varied
condition in a licence unless the new condition, or the condition as varied, is
one which (with any necessary modifications) would have been satisfied by the
licence holder throughout –
(a) the three months
immediately before the relevant date; or
(b) such other three month
period as has been notified under subsection (5).
(5) If
OFCOM consider that the performance of the licence holder during the three
month period immediately preceding the relevant date is not typical of his
performance during the twelve months before the relevant date they –
(a) may determine that
subsection (4) is to apply by reference to such other three month period
falling within those twelve months as they may determine; and
(b) must notify any
determination under this subsection to the licence holder.
(6) In
subsection (4) “the relevant date” is the date of the relevant change of
control or, if earlier, the date on which OFCOM exercise their powers under
this section.
(7) A
variation of a licence under this section shall be effected by the service of a
notice of the variation on the licence holder.
(8) OFCOM
are not to serve a notice of a variation under this section unless they have
given the body on whom it is served a reasonable opportunity, after the
publication of the report of the review under section 355, of making
representations to them about the variation.
(9) Where,
in a case of a proposed change of control, a notice varying a licence under
this section is served before the change to which it relates takes place, the
variation is not to take effect until that change takes place.
(10) A
condition included in a licence by a variation under this section may be
further varied by OFCOM either –
(a) with the consent of the
licence holder; or
(b) in any other case, after
complying with the requirements of section 86(5)(b) of the 1990 Act
(variation after giving opportunity for representations by the licence holder).
(11) Expressions
used in this section and section 355 have the same meanings in this section as
in that.
Meaning
of control
357 Meaning of “control”
(1) In
paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act
(control where a person will be able, without having at least a 50 per cent.
interest in it, to have the affairs of a body conducted in accordance with his
wishes) –
(a) for “will be able” there
shall be substituted “would (if he chose to) be able in most cases or in
significant respects”; and
(b) for “the affairs” there
shall be substituted “affairs”.
(2) It
shall be the duty of OFCOM to publish guidance setting out their intentions
concerning the inclusion of particular matters in the matters that they will
take into account when determining whether a person has control of a body,
within the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2
to the 1990 Act.
(3) OFCOM
may from time to time revise the guidance issued by them under this section.
(4) OFCOM
must publish the guidance and, where they revise it, the revised guidance in
such manner as they consider appropriate for bringing it to the attention of
the persons who, in their opinion, are likely to be affected by it.
CHAPTER 6
OTHER
PROVISIONS ABOUT TELEVISION AND RADIO SERVICES
Annual
report on television and radio
358 Annual factual and statistical report
(1) It
shall be the duty of OFCOM –
(a) as soon as practicable
after the end of the period of twelve months beginning with the commencement of
this section, and
(b) as soon as practicable
after the end of every subsequent period of twelve months,
to satisfy for that period
the review and reporting requirements of this section.
(2) For
any period those obligations are –
(a) to carry out a review of
the provision of the television and radio services available for reception by
members of the public in the United Kingdom [and the Bailiwick of Jersey]
during that period; and
(b) to prepare a factual and
statistical report for that period on the provision of those services and on
the state of the market in which they are provided.
(3) In
carrying out a review for any period under this section, OFCOM must consider,
in particular, each of the following –
(a) the extent to which
programmes included during that period in television and radio services are
representative of what OFCOM consider to be the principal genres for such
programmes;
(b) the extent to which codes
made by OFCOM under this Part or Part 4 or 5 of the 1996 Act (listed
events and fairness) have been complied with during that period;
(c) the extent to which any
guidance given by OFCOM under section 314 has been followed during that
period;
(d) any trends appearing or
operating during that period in the size and behaviour of the audience for
radio and television services;
(e) the financial condition
during that period of the market in which those services are provided and of
the market in which programmes for such services are produced;
(f) what it is appropriate
to achieve by conditions and duties under section 277 and
paragraphs 1 and 7 of Schedule 12 and the effectiveness for
that purpose of the conditions and duties for the time being in force;
(g) whether it would be
appropriate to recommend to the Secretary of State that he exercises any of his
powers under that section or those paragraphs;
(h) the extent to which work
on independent productions (within the meaning of that section and those paragraphs)
that are produced in the United Kingdom is done in a range of production
centres outside the M25 area;
(i) any issues relating to
intellectual property in programmes that have arisen or been of significance
during that period;
(j) developments in
technology that have occurred or become important during that period and are
relevant to the provision, broadcasting or distribution of television and radio
programmes;
(k) the availability during
that period of persons with skills that are used or likely to be useful in
connection with the provision of television and radio services and the
production of programmes for inclusion in such services;
(l) the availability during
that period of facilities for the provision of training in such skills.
(4) Every
report under this section must set out OFCOM’s findings on their consideration
of the matters mentioned in subsection (3).
(5) Every
report prepared by OFCOM under this section must be published by them –
(a) as soon as practicable
after its preparation is complete; and
(b) in such manner as they
consider appropriate.
(6) OFCOM’s
duties under this section are in addition to their duties under section 264.
Community
radio and local digital television
359 Grants to providers
(1) OFCOM
may make such grants as they consider appropriate to the provider of any
service of a description of service in relation to which provision is for the
time being in force under section 262.
(2) The
Secretary of State may by order provide that OFCOM may also make such grants as
they consider appropriate to the provider of any service of a description of
service in relation to which provision is for the time being in force under
section 244.
(3) A
grant made by virtue of this section may be made on such terms and conditions,
and shall become repayable to OFCOM in such circumstances, as may be specified
by OFCOM when making the grant.
(4) A
person is not –
(a) by reason of the making
to him of a grant by virtue of this section, or
(b) by reason of any terms or
conditions (including any provisions for repayment) subject to which such a
grant is or has been made to him,
to be a disqualified
person by virtue of any provision of Schedule 2 to the 1990 Act in
relation to a licence mentioned in subsection (5).
(5) Those
licences are –
(a) a licence under Part 1
of the 1990 Act, or under Part 1 of the 1996 Act, which is granted in
accordance with any provision made by an order under section 244 of this Act;
and
(b) a licence under Part 3
of the 1990 Act, or under Part 2 of the 1996 Act, which is granted in
accordance with any provision made by an order under section 262 of this Act.
(6) * * * * *
Supplemental
provisions of Part 3
360 Amendments of the 1990 and 1996 Acts
(1) In
section 201 of the 1990 Act (programme services), in subsection (1) –
(a) for paragraphs (a)
to (bb) there shall be substituted –
“(aa) any service which is a
programme service within the meaning of the Communications Act 2003;”
(b) in paragraph (c),
for “a telecommunication system” there shall be substituted “an electronic
communications network (within the meaning of the Communications Act 2003)”.
(2) For
subsection (2) of that section there shall be substituted –
“(2A) Subsection (1)(c) does not apply to so much of
a service consisting only of sound programmes as –
(a) is a two-way service
(within the meaning of section 248(4) of the Communications Act 2003);
(b) satisfies the
conditions in section 248(5) of that Act; or
(c) is provided for the
purpose only of being received by persons who have qualified as users of the
service by reason of being persons who fall within paragraph (a) or (b) of
section 248(7) of that Act.
(2B) Subsection (1)(c) does not apply to so much
of a service not consisting only of sound programmes as –
(a) is a two-way service
(within the meaning of section 232 of the Communications Act 2003);
(b) satisfies the
conditions in section 233(5) of that Act; or
(c) is provided for the
purpose only of being received by persons who have qualified as users of the
service by reason of being persons who fall within paragraph (a) or (b) of
section 233(7) of that Act.”
(3) Schedule 15
(which makes minor and consequential amendments of the 1990 Act and the 1996
Act for purposes connected with the other provisions of this Chapter) shall
have effect.
361 Meaning of “available for reception by
members of the public”
(1) The
services that are to be taken for the purposes of this Part to be available for
reception by members of the public include (subject to subsection (2)) any
service which –
(a) is made available for
reception, or is made available for reception in an intelligible form, only to
persons who subscribe to the service (whether for a period or in relation to a
particular occasion) or who otherwise request its provision; but
(b) is a service the facility
of subscribing to which, or of otherwise requesting its provision, is offered
or made available to members of the public.
(2) A
service is not to be treated as available for reception by members of the
public if each of the three conditions set out in subsections (3) to (5) is
satisfied.
(3) The
first condition is that the service is confined to the provision of a
facility –
(a) for the making by users
of the service of individual selections of the material to be received; and
(b) for receiving whatever is
selected.
(4) The
second condition is that it is only in response to a selection made by a user
of the service that anything (whether encrypted or not) –
(a) is broadcast from a
satellite or by means of a multiplex service; or
(b) is otherwise transmitted
by means of an electronic communications network.
(5) The
third condition is that the individual selections that may be made do not
include any that are limited to electing to be one of the recipients of
material that is or has been offered for reception on the basis –
(a) that it is material
selected by the provider of the service for the purpose of being made available
for broadcasting or distribution simultaneously, or virtually so, to an
audience consisting of users of the service; and
(b) that it will be broadcast
or distributed simultaneously, or virtually so, to every member of the audience
(if any) that consists of the users of the service who have elected to receive
it.
(6) References
in this section to members of the public are references to members of the
public in, or in any area of, any one or more countries or territories (which
may or may not include the United Kingdom [or the Bailiwick of Jersey]).
(7) * * * * *
(8) * * * * *
(9) In
this section “multiplex service” means a television multiplex service, a radio
multiplex service or a general multiplex service.
362 Interpretation of Part 3
(1) In
this Part –
“additional radio service”
means an additional service within the meaning given by section 114(1) of the
1990 Act for the purposes of Part 3 of that Act;
“additional television
service” (except in the expression “digital additional television service”)
means an additional service within the meaning given by section 48 of the 1990
Act for the purposes of Part 1 of the 1990 Act;
“analogue teletext
service” is to be construed in accordance with section 218(4);
“ancillary service” has
the same meaning as it has, by virtue of section 24(2) of the 1996 Act, in
Part 1 of that Act;
“assistance for disabled
people” means any of the following –
(a) subtitling;
(b) audio-description for the
blind and partially sighted; and
(c) presentation in, or
translation into, sign language;
“available for reception
by members of the public” is to be construed in accordance with section 361;
“the BBC Charter and
Agreement” means the following documents, or any one or more of them, so far as
they are for the time being in force –
(a) a Royal Charter for the
continuance of the BBC;
(b) supplemental Charters obtained
by the BBC under such a Royal Charter;
(c) an agreement between the
BBC and the Secretary of State entered into (whether before or after the
passing of this Act) for purposes that include the regulation of activities
carried on by the BBC;
“BBC company” means –
(a) a body corporate which is
controlled by the BBC; or
(b) a body corporate in which
the BBC or a body corporate controlled by the BBC is (to any extent) a
participant;
“C4 company” means –
(a) a body corporate which is
controlled by C4C; or
(b) a body corporate in which
C4C or a body corporate controlled by C4C is (to any extent) a participant;
“Channel 3”,”Channel 4”
and “Channel 5” each has the same meaning as in Part 1 of the 1990 Act
(see section 71 of that Act);
“Channel 3 licence” means
a licence to provide a Channel 3 service;
“a Channel 3 service”
means a television broadcasting service comprised in Channel 3;
“digital additional sound
service” means a digital additional service within the meaning given by section
63 of the 1996 Act for the purposes of Part 2 of that Act;
“digital additional
television service” means a digital additional service within the meaning given
by section 24(1) of the 1996 Act for the purposes of Part 1 of that Act;
“the digital public
teletext service” means so much of the public teletext service as consists of a
service provided in digital form;
“digital sound programme
licence” and “digital sound programme service” each has the same meaning as in
Part 2 of the 1996 Act (see sections 40 and 72 of that Act);
“digital television
programme service” means a digital programme service within the meaning given
by section 1(4) of the 1996 Act for the purposes of Part 1 of that Act;
“EEA State” means the
United Kingdom or any other State that is a contracting party to the Agreement
on the European Economic Area signed at Oporto on 22nd May 1992, as adjusted by
the Protocol signed at Brussels on 17th March 1993, and “another EEA State”
means an EEA State other than the United Kingdom;
“general multiplex
service” means a multiplex service within the meaning of section 175 which is
neither a television multiplex service nor a radio multiplex service;
“initial expiry date” has
the meaning given by section 224;
“licensed public service
channel” means any of the following services (whether provided for broadcasting
in digital or in analogue form) –
(a) any Channel 3 service;
(b) Channel 4;
(c) Channel 5;
“local digital sound
programme licence” and “local digital sound programme service” each has the
same meaning as in Part 2 of the 1996 Act (see sections 60 and 72 of that
Act);
“local radio multiplex
licence” and “local radio multiplex service” each has the same meaning as in
Part 2 of the 1996 Act (see sections 40 and 72 of that Act);
“local sound broadcasting
licence” means a licence under Part 3 of the 1990 Act to provide a local
sound broadcasting service;
“local sound broadcasting
service” means a sound broadcasting service which, under subsection (4)(b) of
section 245, is a local service for the purposes of that section;
“the M25 area” means the
area the outer boundary of which is represented by the London Orbital Motorway
(M25);
“national Channel 3
service” means a Channel 3 service provided between particular times of the day
for more than one area for which regional Channel 3 services are provided;
“national digital sound
programme service” has the same meaning as in Part 2 of the 1996 Act;
“national radio multiplex
licence” and “national radio multiplex service” each has the same meaning as in
Part 2 of the 1996 Act (see sections 40 and 72 of that Act);
“networking arrangements”
has the meaning given by section 290;
“OFCOM’s standards code”
means any code or codes for the time being in force containing standards set by
OFCOM under section 319 (whether originally or by way of any revision of any
standards previously so set);
“provision”, in relation
to a service, is to be construed (subject to subsection (3)) in accordance
with subsection (2), and cognate expressions are to be construed
accordingly;
“the public teletext provider”
means –
(a) subject to paragraph (b),
the person holding the licence under section 219 to provide the public teletext
service; and
(b) in relation to a time
before the grant of the first licence to be granted under that section, the
person holding the Broadcasting Act licence to provide
the existing service (within the meaning of section 221);
“the public teletext
service” means the service the provision of which is required to be secured in
accordance with section 218;
“qualifying service” has
the same meaning as in Part 1 of the 1996 Act (see section 2(2) of that
Act);
“radio licensable content
service” has the meaning given by section 247;
“radio multiplex service”
has the same meaning as (by virtue of section 258 of this Act) it has in
Part 2 of the 1996 Act;
“radio programme service”
means any of the following –
(a) a service the provision
of which is licensed under Part 3 of the 1990 Act;
(b) a digital sound programme
service the provision of which is licensed under Part 2 of the 1996 Act;
(c) a digital additional
sound service the provision of which is licensed under section 64 of the 1996
Act;
“regional Channel 3
licence” means a licence under Part 1 of the 1990 Act to provide a
regional Channel 3 service;
“regional Channel 3
service” means a Channel 3 service provided for a particular area determined
under section 14(2) of the 1990 Act;
“restricted television
service” means any restricted service within the meaning given by section 42A
of the 1990 Act for the purposes of Part 1 of that Act;
“S4C” and “S4C Digital”
means the services so described in section 204(3);
“S4C company” means –
(a) a body corporate which is
controlled by the Welsh Authority; or
(b) a body corporate in which
that Authority or a body corporate controlled by that Authority is (to any
extent) a participant;
“simulcast radio service”
means any simulcast radio service within the meaning given by section 41(2) of
the 1996 Act for the purposes of Part 2 of that Act;
“sound broadcasting
service” has the same meaning as in Part 3 of the 1990 Act (see section
126 of that Act);
“standards objectives” has
the meaning given by section 319(2);
“subtitling” means
subtitling for the deaf or hard of hearing, whether provided by means of a
teletext service or otherwise;
“television broadcasting
service” means (subject to subsection (4)) a service which –
(a) consists in a service of
television programmes provided with a view to its being broadcast (whether in
digital or in analogue form);
(b) is provided so as to be
available for reception by members of the public; and
(c) is not –
(i) a restricted television service;
(ii) a television multiplex
service;
(iii) a service provided under
the authority of a licence under Part 1 of the 1990 Act to provide a
television licensable content service; or
(iv) a service provided under
the authority of a licence under Part 1 of the 1996 Act to provide a
digital television programme service;
“television licensable
content service” has the meaning given by section 232 of this Act;
“television multiplex
service” has meaning given by section 241(1) of this Act to a multiplex
service within the meaning of Part 1 of the 1996 Act;
“television programme
service” means any of the following –
(a) a television broadcasting
service;
(b) a television licensable content
service;
(c) a digital television
programme service;
(d) a restricted television
service;
“the Television without
Frontiers Directive” means Council Directive 89/552/EEC on the Co-ordination of
certain provisions laid down by law, regulation or administrative action in
member States concerning the pursuit of television broadcasting activities,
together with any modifications of that Directive by Directive 97/36/EC of the
European Parliament and the Council;
“text service” means any
teletext service or other service in the case of which the visual images
broadcast or distributed by means of the service consist wholly or mainly of
non-representational images.
(2) In
the case of any of the following services –
(a) a television broadcasting
service or sound broadcasting service,
(b) the public teletext
service;
(c) a television licensable
content service or radio licensable content service,
(d) a digital television
programme service or digital sound programme service,
(e) a restricted television
service,
(f) an additional television
service or additional radio service,
(g) a digital additional
television service or a digital additional sound service,
the person, and the only
person, who is to be treated for the purposes of this Part as providing the service
is the person with general control over which programmes and other services and
facilities are comprised in the service (whether or not he has control of the
content of individual programmes or of the broadcasting or distribution of the
service).
(3) For
the purposes of this Part –
(a) the provision of a
service by the BBC does not include its provision by a BBC company;
(b) the provision of a
service by C4C does not include its provision by a C4 company;
(c) * * * * *
and, accordingly, control
that is or is capable of being exercised by the BBC, C4C or the Welsh Authority
over decisions by a BBC company, C4 company or S4C company about what is to be
comprised in a service shall be disregarded for the purposes of subsection (2).
(4) References
in this Part to a television broadcasting service do not include references to
any text service.
(5) References
in this Part to imposing a charge on a person in respect of his reception of a
service in, or in a part of, the United Kingdom [or the Bailiwick of Jersey] include
references to imposing charges –
(a) for his use of the
service at a place in the United Kingdom [or the Bailiwick of Jersey] or in
that part of it;
(b) for an entitlement of his
to receive it at such place;
(c) for the use of a facility
by means of which he exercises such an entitlement; or
(d) for the service’s being
made available for reception by him at such a place.
(6) In
subsection (1) “controlled” and “participant” each has the same meaning as in
Schedule 2 to the 1990 Act.
(7) In
this section “non-representational images” means visual images which are
neither still pictures nor comprised within sequences of visual images capable
of being seen as moving pictures.
PART 4
* * * * * * *
part 5
* * * * * * *
PART 6
MISCELLANEOUS
AND SUPPLEMENTAL
Annual
report
390 Annual report on the Secretary of State’s
functions
(1) The
Secretary of State must prepare and lay before Parliament regular reports on
the carrying out by him of the functions to which this section applies.
(2) This
section applies to the Secretary of State’s functions under the following
enactments –
(a) this Act;
(b) the Office of Communications
Act 2002 (c. 11);
(c) the enactments relating
to the management of the radio spectrum so far as not comprised in this Act;
(d) the 1990 Act;
(e) the 1996 Act.
(3) The
first report under this section must relate to the period which –
(a) begins with 19th March
2002 (the date of the passing of the Office of Communications
Act 2002); and
(b) ends with the period of
twelve months beginning with the first date to be appointed for the purposes of
section 2 of this Act.
(4) Every
subsequent report must relate to the period of twelve months beginning with the
end of the period to which the previous report related.
(5) The
obligation under this section to prepare and lay a report before Parliament is
an obligation to do that as soon as reasonably practicable after the end of the
period to which the report relates.
(6) Where
a report for the purposes of this section relates to a period the whole or a
part of which falls before the time when the whole of this Act is in force, the
functions referred to in subsection (2) are to be taken as excluding all
functions under the specified enactments that will have ceased to be functions
of the Secretary of State when the whole of this Act is in force.
Review
of media ownership
391 Review of media ownership
(1) It
shall be the duty of OFCOM –
(a) to carry out regular
reviews of the operation, taken together, of all the provisions to which this
section applies; and
(b) to send a report on every
such review to the Secretary of State.
(2) This
section applies to –
(a) the provisions of
Schedule 2 to the 1990 Act;
(b) the provision made by or
under Schedule 14 to this Act;
(c) the provisions of
sections 280 and 281 of this Act;
(d) whatever provision (if
any) has been made under section 283 of this Act;
* * *
(e) * * * * *
(3) The
first review must be carried out no more than three years after the
commencement of this section, and subsequent reviews must be carried out at
intervals of no more than three years.
(4) The
report to the Secretary of State on a review must set out OFCOM’s
recommendations, in consequence of their conclusions on the review, for the
exercise by the Secretary of State of –
(a) his power to make an
order under section 348(5);
(b) his powers to make orders
under Schedule 14;
(c) his powers under sections
282 and 283;
* * *
(d) * * * * *
(5) OFCOM
must publish every report sent by them to the Secretary of State under this
section in such manner as they consider appropriate for bringing it to the
attention of persons who, in their opinion, are likely to be affected by it.
Guidelines
as to penalties
392 Penalties imposed by OFCOM
(1) It
shall be the duty of OFCOM to prepare and publish a statement containing the
guidelines they propose to follow in determining the amount of penalties
imposed by them under provisions contained in this Act or any other enactment
apart from the Competition Act 1998
(c. 41).
(2) OFCOM
may from time to time revise that statement as they think fit.
(3) Where
OFCOM make or revise their statement under this section, they must publish the
statement or (as the case may be) the revised statement in such manner as they
consider appropriate for bringing it to the attention of the persons who, in
their opinion, are likely to be affected by it.
(4) Before
publishing a statement or revised statement under this section OFCOM must
consult both –
(a) the Secretary of State,
and
(b) such other persons as
they consider appropriate,
about the guidelines they
are proposing to include in the statement.
(5) Before
determining how to publish a statement or revised statement under this section
OFCOM must consult the Secretary of State.
(6) It
shall be the duty of OFCOM, in determining the amount of any penalty to be
imposed by them under this Act
* * * to
have regard to the guidelines contained in the statement for the time being in
force under this section.
(7) * * * * *
Disclosure
of information
393 General restrictions on disclosure of
information
(1) Subject
to the following provisions of this section, information with respect to a
particular business which has been obtained in exercise of a power conferred
by –
(a) this Act,
(b) the enactments relating
to the management of the radio spectrum (so far as not contained in this Act),
(c) the 1990 Act, or
(d) the 1996 Act,
is not, so long as that
business continues to be carried on, to be disclosed without the consent of the
person for the time being carrying on that business.
(2) Subsection
(1) does not apply to any disclosure of information which is made –
(a) for the purpose of
facilitating the carrying out by OFCOM of any of their functions;
(b) * * * * *
(c) * * * * *
(d) * * * * *
(e) for the purpose of any
civil proceedings brought under or by virtue of this Act or any of the
enactments or instruments mentioned in subsection (5); or
(f) for the purpose of
securing compliance with an international obligation of the United Kingdom [on
behalf of the Bailiwick of Jersey].
(3) * * * * *
(4) * * * * *
(5) The
enactments and instruments referred to in subsections (2) and (4) are –
(a) the Wireless Telegraphy Act
1949 (c. 54);
(b) the Marine, &c.,
Broadcasting (Offences) Act 1967 (c. 41);
(c) the Wireless Telegraphy Act
1967 (c. 72);
(d) * * * * *
(e) * * * * *
(f) * * * * *
(g) * * * * *
(h) * * * * *
(i) * * * * *
(j) the 1990 Act;
(k) the 1996 Act;
(l) the Wireless Telegraphy Act
1998 (c. 6);
(m) * * * * *
(n) * * * * *
(o) * * * * *
(p) * * * * *
(6) Nothing
in this section –
(a) limits the matters that
may be published under section 15, 26 or 390;
(b) limits the matters that
may be included in, or made public as part of, a report made by OFCOM by virtue
of a provision of this Act or the Office of Communications
Act 2002 (c. 11);
(c) prevents the disclosure
of anything for the purposes of a report of legal proceedings in which it has
been publicly disclosed;
(d) applies to information
that has been published or made public as mentioned in paragraphs (a) to
(c).
(7) Nothing
in this section applies to information obtained in exercise of the powers
conferred by section 196 of the 1990 Act (powers of entry and search).
(8) * * * * *
(9) * * * * *
(10) A
person who discloses information in contravention of this section is guilty of
an offence and shall be [liable to imprisonment for a term not exceeding two
years or to a fine or to both].
(11) * * * * *
(12) In
this section “legal proceedings” means civil or criminal proceedings in or
before any court, or proceedings before any tribunal established by or under
any enactment.
Notifications
etc. and electronic working
394 Service of notifications and other documents
(1) This
section applies where provision made (in whatever terms) by or under an
enactment specified in subsection (2) authorises or requires –
(a) a notification to be
given to any person; or
(b) a document of any other
description (including a copy of a document) to be sent to any person.
(2) Those
enactments are –
(a) this Act;
(b) the Office of Communications
Act 2002 (c. 11);
(c) the enactments relating
to the management of the radio spectrum (so far as not contained in this Act);
(d) Schedule 2 to the Telecommunications Act
1984 (c. 12);
(e) the 1990 Act; and
(f) the 1996 Act.
(3) The
notification or document may be given or sent to the person in question –
(a) by delivering it to him;
(b) by leaving it at his
proper address; or
(c) by sending it by post to
him at that address.
(4) The
notification or document may be given or sent to a body corporate by being
given or sent to the secretary or clerk of that body.
(5) The
notification or document may be given or sent to a firm by being given or sent
to –
(a) a partner in the firm; or
(b) a person having the
control or management of the partnership business.
(6) The
notification or document may be given or sent to an unincorporated body or
association by being given or sent to a member of the governing body of the
body or association.
(7) For
the purposes of this section and [Article 12 of the Interpretation (Jersey) Law 1954[12]] (service of documents by post) in its application to this section,
the proper address of a person is –
(a) in the case of body
corporate, the address of the registered or principal office of the body;
(b) in the case of a firm,
unincorporated body or association, the address of the principal office of the
partnership, body or association;
(c) in the case of a person
to whom the notification or other document is given or sent in reliance on any
of subsections (4) to (6), the proper address of the body corporate, firm or
(as the case may be) other body or association in question; and
(d) in any other case, the
last known address of the person in question.
(8) In
the case of –
(a) a company registered
outside the United Kingdom
[or the Bailiwick of Jersey],
(b) a firm carrying on
business outside the United
Kingdom [or the Bailiwick of Jersey], or
(c) an unincorporated body or
association with offices outside the United Kingdom [or the Bailiwick of
Jersey],
the references in
subsection (7) to its principal office include references to its principal
office within the United Kingdom [or the Bailiwick of Jersey] (if any).
(9) In
this section –
“document” includes
anything in writing; and
“notification” includes
notice;
and references in this
section to giving or sending a notification or other document to a person
include references to transmitting it to him and to serving it on him.
(10) This
section has effect subject to section 395.
395 Notifications and documents in electronic
form
(1) This
section applies where –
(a) section 394 authorises
the giving or sending of a notification or other document by its delivery to a
particular person (“the recipient”); and
(b) the notification or other
document is transmitted to the recipient –
(i) by means of an electronic communications
network; or
(ii) by other means but in a
form that nevertheless requires the use of apparatus by the recipient to render
it intelligible.
(2) The
transmission has effect for the purposes of the enactments specified in section
394(2) as a delivery of the notification or other document to the recipient,
but only if the requirements imposed by or under this section are complied
with.
(3) Where
the recipient is OFCOM –
(a) they must have indicated
their willingness to receive the notification or other document in a manner
mentioned in subsection (1)(b);
(b) the transmission must be
made in such manner and satisfy such other conditions as they may require; and
(c) the notification or other
document must take such form as they may require.
(4) Where
the person making the transmission is OFCOM, they may (subject to subsection
(5)) determine –
(a) the manner in which the
transmission is made; and
(b) the form in which the notification
or other document is transmitted.
(5) Where
the recipient is a person other than OFCOM –
(a) the recipient, or
(b) the person on whose
behalf the recipient receives the notification or other document,
must have indicated to the
person making the transmission the recipient’s willingness to receive
notifications or documents transmitted in the form and manner used.
(6) An
indication to any person for the purposes of subsection (5) –
(a) must be given to that
person in such manner as he may require;
(b) may be a general
indication or one that is limited to notifications or documents of a particular
description;
(c) must state the address to
be used and must be accompanied by such other information as that person
requires for the making of the transmission; and
(d) may be modified or
withdrawn at any time by a notice given to that person in such manner as he may
require.
(7) An
indication, requirement or determination given, imposed or made by OFCOM for
the purposes of this section is to be given, imposed or made by being published
in such manner as they consider appropriate for bringing it to the attention of
the persons who, in their opinion, are likely to be affected by it.
(8) Subsection
(9) of section 394 applies for the purposes of this section as it applies for
the purposes of that section.
396 Timing and location of things done
electronically
(1) The
Secretary of State may by order make provision specifying, for the purposes of
the enactments specified in section 394(2), the manner of determining –
(a) the times at which things
done under those enactments by means of electronic communications networks are
done; and
(b) the places at which such
things are so done, and at which things transmitted by means of such networks
are received.
(2) The
provision made by subsection (1) may include provision as to the country or
territory in which an electronic address is to be treated as located.
(3) An
order made by the Secretary of State may also make provision about the manner
of proving in any legal proceedings –
(a) that something done by
means of an electronic communications network satisfies the requirements of the
enactments specified in section 394(2) for the doing of that thing; and
(b) the matters mentioned in
subsection (1)(a) and (b).
(4) An
order under this section may provide for such presumptions to apply (whether
conclusive or not) as the Secretary of State considers appropriate.
Other
miscellaneous provisions
* *
*
*
*
*
*
Supplemental
399 Expenses
* *
*
*
*
*
*
400 Destination of licence fees and penalties
(1) This
section applies (subject to section 401) to the following amounts –
(a) an amount paid to OFCOM
in respect of a penalty imposed by them under Chapter 1 of Part 2
(including a penalty imposed by virtue of section 191(5));
(b) * * * * *
(c) an amount paid to OFCOM
in pursuance of an obligation imposed by or under [section 3 or 3A of] the
Wireless
Telegraphy Act 1998 (c. 6);
(d) an amount paid to OFCOM
in respect of a penalty imposed by them under section 175;
(e) a cash bid amount paid to
OFCOM under a Broadcasting Act licence for the first year falling within the
period for which the licence is in force;
(f) an amount paid to OFCOM
under such a licence for a subsequent year as the amount equal to a cash bid
amount increased by the appropriate percentage;
(g) an amount paid to OFCOM
under such a licence as an amount representing a percentage of relevant revenue
for an accounting period;
(h) an amount paid to OFCOM
in respect of a penalty imposed by them under Part 1 or 3 of the 1990 Act,
Part 1 or 2 of the 1996 Act or Part 3 of this Act.
[(2) OFCOM shall, after consultation with the Economic Development
Committee of the States of Jersey, pay to the Treasurer of the States to be
credited to the annual income of the States such proportion of the amount to
which this section applies as appears to OFCOM to be appropriate.]
(3) * * * * *
(4) OFCOM
must, in respect of each financial year, prepare an account showing –
(a) the amounts to which this
section applies that have been received by them during that year;
[(b) the sums paid to the Treasurer of the States;]
(c) the aggregate amount of
the sums received by them during that year that is retained in accordance with
a statement of principles under section 401 for meeting the costs of carrying
out functions mentioned in subsection (4) of that section during that year;
(d) the aggregate amount that
they estimate will fall to be so retained out of amounts due to them and likely
to be paid or recovered; and
(e) the cost to OFCOM of
carrying out during that year the functions in respect of which amounts are or
are to be retained in accordance with such a statement.
(5) OFCOM
must send that account to the Comptroller and Auditor General not later than
the end of the month of November following the financial year to which it
relates.
(6) * * * * *
(7) References
in this section to penalties imposed by OFCOM under Part 3 of this Act
include references to penalties which the BBC is liable to pay to OFCOM by
virtue of section 198(3).
(8) In
this section –
“the appropriate
percentage” has the same meaning as in section 19 of the 1990 Act;
“cash bid amount” means an
amount specified in a cash bid for a Broadcasting Act licence or the amount
determined by OFCOM for the purposes of any provision of the 1990 Act or this
Part to be what would have been the amount of a cash bid for a licence;
“financial year” has the
same meaning as in the Schedule to the Office of Communications Act 2002
(c. 11);
“numbering conditions”
means conditions the setting of which is authorised by section 58 or 59; and
“relevant revenue” means
any of the following –
(a) the amount which for the
purposes of section 19, 52(1), 102(1) or 118 (1) of the 1990 Act is the amount
of qualifying revenue for an accounting period;
(b) the amount which for the
purposes of section 13(1) or 55(1) of the 1996 Act is the amount of multiplex
revenue for an accounting period; or
(c) an amount which for the
purposes of paragraph 7 of Schedule 10 to this Act is the amount of
qualifying revenue for an accounting period.
[(9) Any fines imposed for offences under this Act shall be paid to
the Crown for the benefit of the Crown revenues in Jersey.]
401 Power of OFCOM to retain costs of carrying
out spectrum functions
* *
*
*
*
*
*
402 Power of Secretary of State to make orders
and regulations
(1) Every
power conferred by this Act on the Secretary of State to make orders or
regulations, other than the powers conferred by Schedule 4, is a power
exercisable by statutory instrument.
(2) A
statutory instrument containing an order or regulations made in exercise of any
such power, other than –
(a) an order under section 31
or 411,
(b) an order containing a
direction under section 156, or
(c) any order that is
required, by any provision of this Act, to be laid before Parliament and
approved in draft,
shall be subject to
annulment in pursuance of a resolution of either House of Parliament.
(3) Every
power of the Secretary of State to make an order or regulations under this Act,
other than an order under section 31 or 411 or an order made in exercise of a
power conferred by Schedule 4, includes power –
(a) to make different
provision for different cases (including different provision in respect of
different areas);
(b) to make provision subject
to such exemptions and exceptions as the Secretary of State thinks fit; and
(c) to make such incidental,
supplemental, consequential and transitional provision as the Secretary of
State thinks fit.
[403 Regulations and orders made by OFCOM
Any statutory instrument
made by OFCOM pursuant to this Act shall not have effect in the Bailiwick of
Jersey unless it is registered in the Royal Court of Jersey and where any such
statutory instrument is so registered, it shall have effect on the day
following the day of such registration or on the day of coming into force
specified in the instrument, whichever is the later.]
404 Criminal liability of company directors etc.
(1) Where
an offence under any enactment to which this section applies is committed by a
body corporate and 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 director, manager, secretary
or other similar officer of the body corporate, or
(b) a person who was
purporting to act in any such capacity,
he (as well as the body
corporate) is guilty of that offence and shall be liable to be proceeded
against and punished accordingly.
(2) * * * * *
(3) In
this section “director”, in relation to a body corporate whose affairs are
managed by its members, means a member of the body corporate.
(4) The
enactments to which this section applies are every enactment contained
in –
(a) this Act;
(b) the Wireless Telegraphy Act
1949 (c. 54);
(c) the Marine, &c.,
Broadcasting (Offences) Act 1967 (c. 41);
(d) the Wireless Telegraphy Act
1967 (c. 72); or
(e) * * * * *
(5) Section
14(2) of the Wireless Telegraphy Act
1949 (which is superseded by this section) shall cease to have effect.
[(6) A person who aids, abets, counsels, or procures the commission of
an offence under this Act shall also be guilty of the offence and liable in the
same manner as a principal officer to the penalty provided for that offence.]
405 General interpretation
(1) In
this Act, except in so far as the context otherwise requires –
“the 1990 Act” means the Broadcasting Act 1990 (c. 42);
“the 1996 Act” means the Broadcasting Act 1996 (c. 55);
“access” is to be
construed in accordance with subsection (4);
“apparatus” includes any
equipment, machinery or device and any wire or cable and the casing or coating
for any wire or cable;
“associated facility” has
the meaning given by section 32;
“the BBC” means the
British Broadcasting Corporation;
“body” (without more)
means any body or association of persons, whether corporate or unincorporate,
including a firm;
“broadcast” means
broadcast by wireless telegraphy, and cognate expressions are to be construed
accordingly;
“Broadcasting Act licence”
means a licence under Part 1 or 3 of the 1990 Act or under Part 1 or
2 of the 1996 Act;
“business” includes any
trade or profession;
“C4C” means the Channel
Four Television Corporation;
“communications provider”
means a person who (within the meaning of section 32(4)) provides an electronic
communications network or an electronic communications service;
“the Consumer Panel” means
the panel established under section 16;
“consumers” has the
meaning given by subsection (5);
“Content Board” means the
committee of OFCOM established and maintained under section 12;
“contravention” includes a
failure to comply, and cognate expressions are to be construed accordingly;
“customers”, in relation
to a communications provider or a person who makes an associated facility
available, means the following (including any of them whose use or potential
use of the network, service or facility is for the purposes of, or in
connection with, a business) –
(a) the persons to whom the
network, service or facility is provided or made available in the course of any
business carried on as such by the provider or person who makes it available;
(b) the persons to whom the
communications provider or person making the facility available is seeking to
secure that the network, service or facility is so provided or made available;
(c) the persons who wish to
be so provided with the network or service, or to have the facility so made
available, or who are likely to seek to become persons to whom the network,
service or facility is so provided or made available;
“distribute”, in relation
to a service, does not include broadcast, and cognate expressions shall be
construed accordingly;
“electronic communications
network” and “electronic communications service” have the meanings given by
section 32;
“enactment” includes any
enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland
legislation;
“the enactments relating
to the management of the radio spectrum” means –
(a) the Wireless Telegraphy Act
1949 (c. 54);
(b) the Marine, &c.,
Broadcasting (Offences) Act 1967 (c. 41);
(c) the Wireless Telegraphy Act
1967 (c. 72) (except Part 1);
(d) Part 6 of the Telecommunications Act
1984 (c. 12);
(e) the Wireless Telegraphy Act
1998 (c. 6);
(f) Chapter 2 of Part 2
of this Act; and
(g) the other provisions of
this Act so far as relating to any of the enactments mentioned in the preceding
paragraphs;
“frequency” includes
frequency band;
“holder”, in relation to a
Broadcasting Act licence, is to be construed in accordance with subsection (7),
and cognate expressions are to be construed accordingly;
“information” includes
accounts, estimates and projections and any document;
“intelligible” is to be
construed in accordance with subsection (9);
“international obligation
of the United Kingdom” includes
* * * any
obligation which will or may arise under any international agreement or
arrangements to which the United Kingdom [on behalf of the Bailiwick of Jersey]
is a party;
“modification” includes
omissions, alterations and additions, and cognate expressions are to be
construed accordingly;
“OFCOM” means the Office
of Communications;
“other member State”
means a member State other than the United Kingdom;
[“police officer” means a
member of the Honorary Police or the States of Jersey Police Force;]
“pre-commencement
regulator” means any of the following –
(a) the Broadcasting
Standards Commission;
(b) the Director General of
Telecommunications;
(c) the Independent
Television Commission;
(d) the Radio Authority;
“programme” includes an
advertisement and, in relation to a service, anything included in that service;
“programme service”
means –
(a) a television programme
service;
(b) the public teletext
service;
(c) an additional television
service;
(d) a digital additional
television service;
(e) a radio programme
service; or
(f) a sound service provided
by the BBC;
and expressions used in
this definition and in Part 3 have the same meanings in this definition as
in that Part;
“provide” and cognate
expressions, in relation to an electronic communications network, electronic
communications service or associated facilities, are to be construed in
accordance with section 32(4);
“purposes of public
service television broadcasting in the United Kingdom” shall be construed in
accordance with subsection (4) of section 264 and subsections (5) and
(6) of that section shall apply for the purposes of any provision of this Act
referring to such purposes as they apply for the purposes of a report under
that section;
“the radio transfer date”
means the date on which the Radio Authority’s functions under Part 3 of
the 1990 Act and Part 2 of the 1996 Act are transferred under this Act to
OFCOM;
“representation”, in
relation to a proposal or the contents of any notice or notification, includes
an objection to the proposal or (as the case may be) to the whole or any part
of those contents;
“subordinate legislation”
means –
(a) any subordinate
legislation, within the meaning of the Interpretation Act 1978 (c. 30); or
(b) * * * * *
“television and radio
services” means –
(a) programme services apart
from those provided by the BBC; and
(b) services provided by the
BBC in relation to which OFCOM have functions;
“television programme”
means any programme (with or without sounds) which –
(a) is produced wholly or
partly to be seen on television; and
(b) consists of moving or
still images or of legible text or of a combination of those things;
“the television transfer
date” means the date on which the Independent Television Commission’s functions
under Part 1 of the 1990 Act and Part 1 of the 1996 Act are
transferred under this Act to OFCOM;
“TV licence” means a
licence for the purposes of section 363;
[“standard scale” means
the standard scale of fines for the time being in the Criminal Justice (Standard Scale of Fines)
(Jersey) Law 1993;[13]]
* * * * *
“wireless telegraphy” has
the same meaning as in the Wireless
Telegraphy Act 1949 (c. 54);
“wireless telegraphy
licence” means a licence under section 1 of the Wireless Telegraphy Act 1949.
(2) Any
power under this Act to provide for the manner in which anything is to be done
includes power to provide for the form in which it is to be done.
(3) References
in this Act to OFCOM’s functions under an enactment include references to their
power to do anything which appears to them to be incidental or conducive to the
carrying out of their functions under that enactment.
(4) References
in this Act to access –
(a) in relation to an
electronic communications network or electronic communications service, are
references to the opportunity of making use of the network or service; and
(b) in relation to a
programme service, are references to the opportunity of viewing in an
intelligible form the programmes included in the service or (as the case may
be) of listening to them in such a form.
(5) For
the purposes of this Act persons are consumers in a market for a service,
facility or apparatus, if they are –
(a) persons to whom the
service, facility or apparatus is provided, made available or supplied (whether
in their personal capacity or for the purposes of, or in connection with, their
businesses);
(b) persons for whose benefit
the service, facility or apparatus is provided, made available or supplied or
for whose benefit persons falling within paragraph (a) arrange for it to
be provided, made available or supplied;
(c) persons whom the person
providing the service or making the facility available, or the supplier of the
apparatus, is seeking to make into persons falling within paragraph (a) or
(b); or
(d) persons who wish to
become persons falling within paragraph (a) or (b) or who are likely to
seek to become persons falling within one or both of those paragraphs.
(6) * * * * *
(7) In
this Act references, in relation to a time or a period, to the holder of a
Broadcasting Act licence or of a particular description of such licence are
references to the person who held that licence at that time or (as the case may
be) to every person who held that licence for the whole or a part of that
period.
(8) For
the purposes of this Act the fact that a service is not in an intelligible form
shall be disregarded, except where express provision is made to the contrary,
in determining whether it has been provided –
(a) for general reception;
(b) for reception by
particular persons; or
(c) for reception at a particular
place or in a particular area.
(9) For
the purposes of this Act something is not to be regarded as in an intelligible
form if it cannot readily be understood without being decrypted or having some
comparable process applied to it.
406 Minor and consequential amendments,
transitionals and repeals
(1) Schedule 17
(which provides for minor and consequential amendments in connection with the
other provision made by this Act) shall have effect.
(2) * * * * *
(3) * * * * *
(4) * * * * *
(5) * * * * *
(6) Schedule 18
(which contains transitional provisions in connection with the other provision
made by this Act) shall have effect.
(7) Subject
to the provisions of Schedule 18 and to the savings and commencement
provisions set out in the notes to Schedule 19, the enactments and
instruments specified in Schedule 19 (which include provisions that are
spent or have ceased to be of any practical utility) are hereby repealed or
revoked to the extent specified in the second column of that Schedule.
(8) * * * * *
(9) * * * * *
(10) This
section has effect subject to section 408.
407 Pre-consolidation amendments
* *
*
*
*
*
*
408 Transitional provision for anticipatory
carrying out of functions
* *
*
*
*
*
*
409 Modifications consequential on regulations
implementing Directives
* *
*
*
*
*
*
[410 Application of enactments to territorial sea
and other waters
The provisions of this
Act as extended to the Bailiwick of Jersey including any amendments or repeals
of any other enactments, shall apply in the Bailiwick of Jersey and the
territorial sea adjacent thereto.]
411 Short title, commencement and extent
(1) This
Act may be cited as the Communications
Act 2003.
(2) * * * * *
(3) * * * * *
(4) * * * * *
(5) * * * * *
(6) * * * * *
(7) * * * * *
(8) * * * * *
SCHEDULES
SCHEDULE
1
Section 2
Functions
transferred to OFcom
Wireless
telegraphy functions
1
(1) Subject
to sub-paragraphs (2) and (3), the functions of the Secretary of State
under the following enactments are transferred to OFCOM –
(a) the Wireless Telegraphy Act
1949 (c. 54);
(b) * * * * *
(c) * * * * *
(d) the Wireless Telegraphy Act
1998 (c. 6).
(2) The
following functions remain functions of the Secretary of State –
(a) his functions under
section 5 of the Wireless Telegraphy Act 1949
(misleading messages and interception and disclosure of wireless telegraphy
messages);
(b) his functions under
section 6 of that Act (regulations about apparatus on board ships etc.);
(c) his functions under
section 7 of that Act (powers as to wireless personnel).
(3) * * * * *
2
(1) The
functions of the Secretary of State under section 7A of the Marine, &c.,
Broadcasting (Offences) Act 1967 (c. 41) (powers of enforcement of marine
offences under that Act) shall (with the following exception) be exercisable
concurrently by the Secretary of State and OFCOM.
(2) The
exception is the functions of the Secretary of State under that section so far
as they relate to powers exercisable by virtue of subsection (7) of that
section.
Functions
in relation to the licensing etc. of television services
* *
*
*
* *
*
Functions
in relation to C4C
* *
*
*
*
*
*
Functions
in relation to the licensing of radio services
* *
*
*
*
*
*
Functions
in relation to the proscription of foreign satellite services
* *
*
*
*
*
*
Functions
in relation to Gaelic broadcasting
* *
*
*
*
*
*
Functions
in relation to the national television archive
* *
*
*
*
*
*
Warrants
to enter and search premises to enforce broadcasting licences provisions
* *
*
*
*
*
*
Variation
of existing Channel 3 and Channel 5 licences
* *
*
* *
*
*
Reports
for the purposes of the review of digital broadcasting
* *
*
*
*
*
*
Functions
in relation to reservation of digital capacity to the BBC
* *
*
*
*
*
*
Functions
in relation to listed events
* * *
*
*
*
*
Functions
relating to fairness and privacy in broadcasting
* *
*
*
*
*
*
SCHEDULE
2
Section 30
TRANSFER
SCHEMES
Contents
of transfer scheme
1
(1) A
transfer scheme –
(a) shall set out the
property, rights and liabilities to be transferred by the scheme; and
(b) may make incidental, supplemental,
consequential and transitional provision in connection with the transfer of
that property and of those rights and liabilities.
(2) The
provisions of the scheme setting out the property, rights and liabilities to be
transferred may do so in either or both of the following ways –
(a) by specifying them or
describing them in particular; or
(b) by identifying them
generally by reference to, or to a specific part of, an undertaking from which
they are to be transferred.
(3) The
property, rights and liabilities that are to be capable of being transferred by
a transfer scheme include –
(a) property, rights and
liabilities that would not otherwise be capable of being transferred or
assigned by the person from whom they are transferred;
(b) property acquired and
rights and liabilities arising in the period after the making of the scheme and
before it comes into force;
(c) rights and liabilities
arising subsequently in respect of matters occurring in that period;
(d) property situated
anywhere in the United Kingdom or elsewhere and rights and liabilities under
the law of any part of the United Kingdom or of any place outside the United
Kingdom; and
(e) rights and liabilities
under an enactment.
(4) The
provision that may be made under sub-paragraph (1)(b) includes provision
for the creation in favour of a pre-commencement regulator, the Secretary of
State or OFCOM of rights or liabilities over or in respect of property
transferred to OFCOM or property retained by a pre-commencement regulator or
the Secretary of State.
(5) The
transfers to which effect may be given by a transfer scheme, and the rights
that may be created by means of such a scheme, include transfers that are to
take effect, and rights that are to arise, in accordance with the scheme as if
there were –
(a) no such requirement to
obtain a person’s consent or concurrence,
(b) no such liability in
respect of any contravention of any other requirement, and
(c) no such interference with
any interest or right,
as there would be, in the
case of a transaction apart from this Act (whether under any enactment or
agreement or otherwise), by reason of any provision having effect in relation
to the terms on which a pre-commencement regulator or the Secretary of State is
entitled or subject to any property, right or liability.
Effect
of transfer scheme
2
(1) Property
transferred by a transfer scheme shall, on the coming into force of the scheme,
vest in OFCOM without further assurance.
(2) Where
any transfer scheme comes into force, any agreement made, transaction effected
or other thing done by or in relation to the person from whom any transfers for
which the scheme provides are made shall have effect, so far as necessary for
the purposes of those transfers, as if –
(a) it had been made,
effected or done by or in relation to OFCOM; and
(b) OFCOM were the same
person in law as the person from whom the transfer is made.
(3) Accordingly,
references in any agreement, document, process or instrument of any description
to the person from whom anything is transferred by means of a transfer scheme
shall have effect, so far as necessary for the purpose of giving effect to the
transfer from the coming into force of the scheme, as references to OFCOM.
(4) Where
any agreement, document, process or instrument of any description has effect,
in relation to anything transferred by means of a transfer scheme, as referring
(whether expressly or by implication) –
(a) to a member or to an
officer of a pre-commencement regulator, or
(b) to an officer of the
Secretary of State,
that agreement, document,
process or instrument shall have effect so far as necessary for the purposes of
the transfers effected by the scheme and in consequence of them, as referring
instead to the person mentioned in sub-paragraph (5).
(5) That
person is –
(a) the person nominated for
the purposes of the transfer by OFCOM; or
(b) in default of a
nomination, the member or employee of OFCOM who most closely corresponds to the
member or officer originally referred to.
(6) Nothing
in sub-paragraph (3) or (4) is to apply in relation to any reference in an
enactment or in subordinate legislation.
Retrospective
modification of a transfer scheme
3
(1) If
at any time after the coming into force of a transfer scheme it appears to the
Secretary of State that it is appropriate to do so, he may by order provide for
the scheme to be deemed to have come into force with such modifications
(including modifications retrospective to the time of the coming into force of
the scheme) as may be provided for in the order.
(2) The
power under this paragraph to provide by order for the modification of a
transfer scheme shall be exercisable for the purpose only of making provision
that could have been made by the scheme.
(3) Before
making an order under this paragraph the Secretary of State must consult OFCOM.
Compensation
4
(1) Where,
in consequence of any provision included in a transfer scheme, the interests,
rights or liabilities of a third party are modified as mentioned in
sub-paragraph (2), the third party is to be entitled to such compensation
as may be just in respect of –
(a) any diminution in the
value of any of his interests or rights, or
(b) any increase in the
burden of his liabilities,
which is attributable to
that modification.
(2) The
modifications mentioned in sub-paragraph (1) are modifications by virtue
of which –
(a) an interest of the third
party in any property is transformed into, or replaced by –
(i) an interest in only part of that property;
or
(ii) separate interests in
different parts of that property;
(b) a right of the third
party against any of the pre-commencement regulators or against the Secretary
of State is transformed into, or replaced by, two or more rights which do not
include a right which, on its own, is equivalent (disregarding the person
against whom it is enforceable) to the right against that regulator or (as the
case may be) against the Secretary of State; or
(c) a liability of the third
party to any of the pre-commencement regulators or to the Secretary of State is
transformed into, or replaced by, two or more separate liabilities at least one
of which is a liability enforceable by a person other than the person by whom
it was enforceable before being so transformed.
(3) Where –
(a) a third party would,
apart from any provision of a transfer scheme, have become entitled to, or to
exercise, any interest or right arising or exercisable in respect of the
transfer or creation in accordance with such a scheme of any property, rights
or liabilities, and
(b) the provisions of that
scheme have the effect of preventing that person’s entitlement to, or to
exercise, that interest or right from arising on any occasion in respect of
anything mentioned in paragraph (a), and
(c) provision is not made by
a transfer scheme for securing that an entitlement to, or to exercise, that
interest or right or an equivalent interest or right, is preserved or created
so as to arise in respect of the first occasion when corresponding
circumstances next occur after the coming into force of the transfers for which
the scheme provides,
the third party is to be
entitled to such compensation as may be just in respect of the extinguishment
of the interest or right.
(4) A
liability to pay compensation under this paragraph shall fall on the persons
mentioned in sub-paragraph (5) who (as the case may be) –
(a) have interests in the
whole or any part of the property affected by the modification in question,
(b) are subject to the rights
of the person to be compensated which are affected by the modification in
question,
(c) are entitled to enforce
the liabilities of the person to be compensated which are affected by that
modification, or
(d) benefit from the
extinguishment of the entitlement mentioned in sub-paragraph (3),
and that liability shall
be apportioned between those persons in such manner as may be appropriate
having regard to the extent of their respective interests, rights or
liabilities or the extent of the benefit they respectively obtain from the
extinguishment.
(5) Those
persons are the pre-commencement regulators and the Secretary of State.
(6) Sub-paragraph (4)
shall have effect subject to so much of any transfer scheme (including the one
that gives rise to the liability) as makes provision for the transfer of any
liability under that sub-paragraph to OFCOM.
(7) Any
dispute as to whether, or as to the person by whom, any compensation is to be
paid under this paragraph, and any dispute as to the amount of compensation to
be paid by a person, shall be referred to and determined –
(a) where the claimant
requires the matter to be determined in England and Wales or in Northern
Ireland, by an arbitrator appointed by the Lord Chancellor, or
(b) where the claimant
requires the matter to be determined in Scotland, by an arbiter appointed by
the Lord President of the Court of Session.
(8) In
this paragraph “third party”, in relation to provisions capable of giving rise
to compensation under this paragraph, means any person other than –
(a) a pre-commencement
regulator; and
(b) the Secretary of State.
Stamp
duty
* *
*
*
*
*
*
Interpretation
of Schedule
6
In this Schedule
“transfer scheme” means a scheme made by a pre-commencement regulator or by the
Secretary of State under section 30.
SCHEDULES
3 AND 4
* * * * * * *
SCHEDULE
5
Section 159
PROCEDURE
FOR GRANTS OF RECOGNISED SPECTRUM ACCESS
General
procedure for applications
1
(1) An
application for a grant of recognised spectrum access shall be determined in
accordance with procedures prescribed in regulations made by OFCOM.
(2) Section
403 applies to regulations made under this paragraph.
(3) The
procedures must include provision for-
(a) time limits for dealing
with applications for a grant of recognised spectrum access;
(b) requirements which must
be met before a grant is made;
(c) the restrictions and
conditions to which a grant may be made subject.
Information
to be provided in connection with applications
2
The grounds on which a
grant of recognised spectrum access may be refused by OFCOM include a failure
by the applicant to provide information which OFCOM reasonably require in order
to satisfy themselves that the applicant is able to comply with restrictions or
conditions to which the grant may be made subject.
Notice
of proposed refusal of application
3
(1) Where
OFCOM propose to refuse an application for a grant of recognised spectrum
access, they shall give notice to the applicant-
(a) stating the reasons for
their proposal; and
(b) specifying a period
within which representations may be made about the proposal.
(2) That
period must be a period ending not less than one month after the day of the
giving of the notice.
Duration
of grant
4
A grant of recognised
spectrum access continues in force, unless previously revoked by OFCOM, for
such period as may be specified in the notification by which the grant is made.
Revocation
or modification
5
OFCOM may revoke or modify
a grant of recognised spectrum access, or the restrictions or conditions to
which such a grant is subject, by a notice to the person to whom the grant was
made.
Notice
of proposed revocation or modification
6
(1) Where
OFCOM propose to revoke or modify a grant of recognised spectrum access or a
restriction or condition to which such a grant is subject, they shall give a
notification to the holder of the grant –
(a) stating the reasons for
their proposal; and
(b) specifying the period
during which the person notified has an opportunity to do the things specified
in sub-paragraph (2).
(2) Those
things are –
(a) making representations
about the proposal; and
(b) if the proposal is the
result of a contravention of a restriction or condition of the grant, complying
with it.
(3) Subject
to sub-paragraphs (4) to (6), the period for doing those things must be
the period of one month beginning with the day after the one on which the
notification was given.
(4) OFCOM
may, if they think fit, allow a longer period for doing those things
either –
(a) by specifying a longer
period in the notification; or
(b) by subsequently, on one
or more occasions, extending the specified period.
(5) The
person notified shall have a shorter period for doing those things if a shorter
period is agreed between OFCOM and the person notified.
(6) The
person notified shall also have a shorter period if –
(a) OFCOM have reasonable
grounds for believing that the case is a case of serious and repeated
contravention or an urgent case;
(b) they have determined
that, in the circumstances, a shorter period would be appropriate; and
(c) the shorter period has
been specified in the notification.
(7) A
case is an urgent case if the failure to revoke or modify the grant will result
in, or create an immediate risk of –
(a) a serious threat to the
safety of the public, to public health or to national security; or
(b) serious economic or
operational problems for persons, other than the person in contravention,
who –
(i) use stations or apparatus for wireless
telegraphy; or
(ii) are communications
providers or make associated facilities available.
(8) For
the purposes of this paragraph a contravention of a restriction or condition of
a grant of recognised spectrum access is a repeated contravention, in relation
to a proposal to revoke or modify the grant, if it falls within sub-paragraph (9).
(9) A
contravention falls within this sub-paragraph if –
(a) a previous notification
under sub-paragraph (1) has been given in respect of the same
contravention or in respect of any other contravention of a restriction or
condition of the same grant; and
(b) the subsequent
notification under that sub-paragraph is given no more than twelve months after
the day of the making by OFCOM of a determination for the purposes of sub-paragraph (10)
that the contravention to which the previous notification related did occur.
(10) Where
OFCOM have given a notification under sub-paragraph (1), they shall,
within the period of one month beginning with the end of the period for the
making of representations about the proposal contained in that
notification –
(a) decide whether or not to
revoke or modify the grant of recognised spectrum access in accordance with
their proposal, or in accordance with that proposal but with modifications; and
(b) give the holder of the
grant a notification of their decision.
(11) The
notification under sub-paragraph (10) –
(a) must be given no more
than one week after the making of the decision to which it relates; and
(b) must, in accordance with
that decision, either revoke or modify the grant or withdraw the proposal for
revocation or modification.
(12) Nothing
in this paragraph is to apply to –
(a) a revocation or
modification to be made at the request or with the consent of the holder of the
grant; or
(b) a revocation or
modification that appears to OFCOM to be necessary or expedient for the purpose
of securing compliance with an international obligation of the United Kingdom
[on behalf of the Bailiwick of Jersey].
(13) The
reference in sub-paragraph (9) to a contravention of a restriction or
condition of a grant includes a reference to a contravention of a restriction
or condition contained in any previous grant of which the grant in question is
a direct or indirect renewal.
Restriction
on powers of revocation and modification
7
(1) The
conditions that OFCOM may include in a grant of recognised spectrum access
include conditions restricting the exercise by them of their power to revoke or
modify that grant.
(2) Those
conditions include, in particular, conditions providing that the grant may not
be revoked or modified except –
(a) with the consent of the
holder of the grant; or
(b) in such other
circumstances, and on such grounds, as may be specified in the conditions.
(3) The
circumstances or grounds –
(a) may relate to matters
relevant for the purposes of any enactment (whether relating to wireless
telegraphy or not); and
(b) may, in particular, be
made dependent on the exercise of a statutory discretion under any enactment.
(4) Nothing
in any condition included in a grant of recognised spectrum access shall
restrict the power of OFCOM to revoke or modify a grant of recognised spectrum
access if it appears to OFCOM to be necessary or appropriate to do so –
(a) in the interests of
national security;
(b) in the interests of the
safety of the public or public health; or
(c) for the purpose of
securing compliance with any international obligation of the United Kingdom [on
behalf of the Bailiwick of Jersey].
Interpretation
8
In this Schedule,
“stations for wireless telegraphy” and “apparatus for wireless telegraphy” each
has the same meaning as in the Wireless Telegraphy Act
1949 (c. 54).
SCHEDULES
6 AND 7
* * * * * * *
SCHEDULE
8
Section 192
DECISIONS
NOT SUBJECT TO APPEAL
Prosecutions
and civil proceedings
1 A
decision to institute, bring or carry on any criminal or civil proceedings.
2 A
decision (other than one under section 119) to take preliminary steps for the
purpose of enabling any such proceedings to be instituted.
This Act
3 * * * * *
4 * * * * *
5 * * * * *
6 * * * * *
7 * * * * *
8 * * * * *
9 * * * * *
10 * * * * *
11 * * * * *
12 * * * * *
13 * * * * *
14 A
decision in exercise of the functions conferred on OFCOM by section 152 as
to –
(a) the services, records and
advice to be provided, maintained or given by them;
(b) the research to be
carried out or the arrangements made for carrying it out; or
(c) the making or terms of
any grant.
15 A
decision under section 155.
16 * * * * *
17 A
decision given effect to by regulations under section 159.
18 A
decision given effect to by regulations under section 162.
19 A
decision given effect to by an order under section 164.
20 A
decision given effect to by regulations under section 168.
21 A
decision given effect to by regulations under section 170 and any decision
under any such regulations.
22 * * * * *
23 * * * * *
24 A
decision given effect to by regulations under paragraph 1 of Schedule 5.
25 * * * * *
26 * * * * *
Wireless
Telegraphy Act 1949
27 A
decision given effect to by regulations under the proviso to section 1(1) of
the Wireless Telegraphy Act 1949
(c. 54).
28 A
decision given effect to by regulations under section 1D(3) of that Act.
29 A
decision given effect to by regulations under section 3 of that Act.
30 A
decision given effect to by regulations under section 10 of that Act.
31 A
decision relating to the making or revision of a statement under
section 13B of that Act.
32 A
decision for the purposes of section 15 of that Act.
Wireless
Telegraphy Act 1998
33 A
decision given effect to by regulations under section 1 of the Wireless Telegraphy Act 1998 (c.
6).
34 A
decision given effect to by regulations under section 3 of that Act.
35 A
decision given effect to by regulations under section 3A of that Act.
36 A
decision relating to the recovery of a sum payable to OFCOM under section 4A of
that Act.
SCHEDULE
9
Section 199
ARRANGEMENTS
ABOUT CARRYING ON OF C4C’S ACTIVITIES
Notification
of requirement to submit proposals
1
(1) It
shall be the duty of OFCOM to give a notification under this paragraph to
C4C –
(a) as soon as practicable
after the commencement of this Schedule, and
(b) as soon as practicable in
the last twelve months preceding each date on which the replacement licence
granted in accordance with section 231 would expire if not renewed.
(2) A
notification under this paragraph is one requiring C4C to submit proposals to
OFCOM in accordance with this Schedule for the relevant licence period.
(3) A
notification under this paragraph must specify the period within which C4C must
submit their proposals.
(4) The
period specified under sub-paragraph (3) must be a period ending not less
than three months after the day of the giving of the notification.
Submission
of proposed arrangements
2
(1) This
paragraph applies where C4C have received a notification under paragraph 1.
(2) C4C
must, within the period set out in the notification, submit proposals to OFCOM
for the arrangements under which they are proposing to secure, so far as
reasonably practicable, that all significant risks that their other activities
will have an adverse effect on the carrying out, during the relevant licence
period, of their primary functions are –
(a) identified;
(b) evaluated; and
(c) properly managed.
(3) The
proposals must include proposals for the arrangements that C4C consider
appropriate for securing the transparency objectives during the relevant
licence period.
(4) For
the purposes of this Schedule the transparency objectives are –
(a) an appropriate financial
and organisational separation between the activities of C4C that relate to the
carrying out of their primary functions and their other activities; and
(b) an appropriate degree of
transparency in financial and other reporting where resources are shared between
separated activities or where there is some other financial or practical
connection between otherwise separated activities.
(5) The
matters to which the proposals submitted under this paragraph may relate
include, in particular, the procedures and other practices to be followed by
C4C in the case of –
(a) the initiation and
management of new ventures;
(b) the exercise of
particular powers;
(c) the assessment of risks;
(d) the imposition of
charges; and
(e) the keeping of records.
(6) The
determination of what is appropriate for the purposes of sub-paragraphs (3)
and (4) is not to be confined to a determination of what is appropriate for
securing the matters mentioned in sub-paragraph (2).
(7) The
arrangements proposed by C4C must contain provision for compliance with the
arrangements to be checked regularly by a person appointed in accordance with
that provision.
(8) That
person must be a person other than the person for the time being holding an
appointment for the purposes of paragraph 12(2) of Schedule 3 to the 1990
Act (C4C’s auditor).
Consideration
and approval of proposals
3
(1) OFCOM
must consider every proposal or revised proposal submitted to them by C4C under
paragraph 2 or this paragraph and may do one of the following –
(a) approve the proposed
arrangements;
(b) approve them with such
modifications as they may notify to C4C;
(c) require C4C to submit
revised proposals in accordance with directions given by OFCOM.
(2) Before –
(a) making modifications of
proposed arrangements for the purpose of approving them, or
(b) requiring the submission
of revised proposals,
OFCOM must consult C4C.
Duration
of approval and modification of arrangements
4
(1) Arrangements
approved under this Schedule are to remain in force (subject to the following
provisions of this paragraph) throughout the licence period to which they
relate.
(2) The
arrangements for the time being approved under this Schedule for any licence
period may be modified, by agreement between OFCOM and C4C, at any time during
the licence period for which they apply.
(3) OFCOM
may carry out a review of the arrangements for the time being approved under
this Schedule.
(4) The
reviews that may be carried out under this paragraph in any one licence period
are confined to either –
(a) one review relating to
all the arrangements; or
(b) two reviews carried out
at separate times as follows –
(i) one (whether the first or second) relating
to the arrangements for securing the transparency objectives; and
(ii) the other relating to
other matters.
(5) On
a review under this paragraph, OFCOM may require C4C to submit proposals for
modifying the arrangements for the time being approved under this Schedule so
far as they relate to the matters under review.
(6) Paragraph
3 applies where proposals are submitted to OFCOM under sub-paragraph (5)
as it applies where they are submitted under paragraph 2.
Publication
of approved arrangements
5
(1) OFCOM
must publish all arrangements approved by them under this Schedule.
(2) The
publication of anything under this paragraph must be in such manner as OFCOM
consider appropriate for bringing it to the attention of members of the public.
Duty of
C4C to act in accordance with the approved arrangements
6
It shall be the duty of
C4C to act in accordance with the arrangements for the time being in force
under this Schedule.
Enforcement
of duties
7
(1) This
paragraph applies to –
(a) every duty of C4C under
this Schedule to submit proposals to OFCOM; and
(b) the duty imposed on C4C
by paragraph 6.
(2) Each
of those duties shall be enforceable in civil proceedings by OFCOM –
(a) for an injunction;
(b) * * * * *
(c) for any other appropriate
remedy or relief.
Penalty
for contravention of the arrangements
8
(1) OFCOM
may impose a penalty on C4C if C4C have contravened –
(a) a requirement of this
Schedule to submit proposals to OFCOM;
(b) a requirement of
arrangements for the time being approved under this Schedule.
(2) The
amount of the penalty must not exceed 3 per cent. of C4C’s qualifying
revenue for their last complete accounting period before the contravention.
(3) Before
imposing a penalty on C4C under this paragraph OFCOM must give C4C a reasonable
opportunity of making representations to OFCOM about their proposal to impose
the penalty.
(4) Where
OFCOM impose a penalty on C4C under this paragraph, they shall –
(a) notify C4C; and
(b) in that notification, fix
a reasonable period after it is given as the period within which the penalty is
to be paid.
(5) In
the case of a continuing contravention –
(a) separate penalties may be
imposed in respect of different periods during which the contravention
continues;
(b) the notification of the
penalty must specify the period in respect of which the penalty is imposed; and
(c) the reference in
sub-paragraph (2) to the last complete accounting period before the
contravention is a reference to the last complete accounting period before the
end of the period in respect of which the penalty is imposed.
(6) A
penalty imposed under this paragraph must be paid to OFCOM within the period
fixed by them.
(7) Section
19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act
(calculation of qualifying revenue), with any necessary modifications, have
effect in relation to C4C for the purposes of this paragraph as they have
effect in relation to the holder of a Channel 3 licence for the purposes
of Part 1 of that Act.
OFCOM’s
duty to take account of need to support C4C’s primary functions
9
In exercising their
powers under this Schedule OFCOM must have regard, in particular, to the need
to secure, so far as practicable, that all significant risks that C4C’s other
activities will have an adverse effect on the carrying out of their primary
functions are –
(a) identified;
(b) evaluated;
and
(c) properly
managed.
Interpretation
of Schedule
10
In this Schedule –
“arrangements” means
arrangements about the procedures and other practices to be followed by C4C and
about other matters connected with the carrying on by them of any of their
activities;
“licence period”
means –
(a) the period for which the
replacement licence is granted to C4C in accordance with section 231; or
(b) any subsequent period for
which it is renewed;
“primary functions” is to
be construed in accordance with section 199(2);
“relevant licence
period” –
(a) in relation to the first
notification to be given under paragraph 1, the licence period mentioned in
paragraph (a) of the definition of that period; and
(b) in relation to any other
such notification, the first licence period to begin after the giving of the
notification;
“transparency objectives”
is to be construed in accordance with paragraph 2(4).
SCHEDULE
10
Section 219
LICENSING
THE PUBLIC TELETEXT SERVICE
PART
1
APPLICATIONS FOR AND
AWARD OF LICENCE
Notice
of proposal to grant licence
1
(1) Where
OFCOM propose to grant a licence to provide the public teletext service they
must publish a notice stating that they are proposing to do so.
(2) The
notice must –
(a) specify the digital
capacity which is available for the public teletext service on television
multiplex services;
(b) specify whether the
licence will require the public teletext service to comprise a service to be
provided for broadcasting in analogue form;
(c) invite applications for the
licence;
(d) specify the closing date
for applications;
(e) specify the fee payable
on the making of an application for the licence; and
(f) specify the percentage
of qualifying revenue for each accounting period of the licence holder which
OFCOM have determined to be the percentage of that revenue that will have to be
paid to them.
(3) Where
the licence is to comprise an analogue teletext service the notice must
specify –
(a) the television
broadcasting service or services on whose frequency or frequencies the services
are to be provided; and
(b) the extent and nature of
the spare capacity which is to be allocated by the licence.
(4) For
the purposes of sub-paragraph (2)(f) –
(a) different percentages may
be determined and specified for different accounting periods; and
(b) the percentages that may
be determined and specified for an accounting period include a nil percentage.
(5) A
notice under this paragraph is to be published in such manner as OFCOM consider
appropriate.
Guidance
as to applications
2
(1) When
publishing a notice under paragraph 1, OFCOM must publish with it some general
guidance to applicants about what is likely to make proposals relating to the
matters mentioned in paragraph 3(1)(c) to (e) acceptable to them.
(2) Guidance
published under this paragraph must include examples.
Applications
for the licence
3
(1) An
application made in response to a notice under paragraph 1 must be accompanied
by –
(a) the fee specified in the
notice as payable on the making of the application;
(b) a technical plan
complying with sub-paragraph (2);
(c) the applicant’s proposals
for providing, or securing the provision of, a service that fulfils the public
service remit for the public teletext service;
(d) the applicant’s proposals
for including news items in the service and for securing that the news items
included in the service are up to date and regularly revised;
(e) the applicant’s proposals
for the inclusion in the service of material that is of particular interest to
persons living in different parts of the United Kingdom;
(f) the applicant’s cash bid
in respect of the licence; and
(g) such information as OFCOM
may reasonably require about the matters mentioned in sub-paragraph (3).
(2) The
technical plan must indicate –
(a) the nature of the public
teletext service which the applicant is proposing to provide; and
(b) the nature of any
services the provision of which, in accordance with proposals made by another
person, would be secured by the applicant in accordance with provision made
under section 220.
(3) The
matters about which OFCOM may require information under sub-paragraph (1)(g)
are –
(a) the applicant’s present
financial position; and
(b) his projected financial
position during the period for which the licence would be in force.
(4) At
any time after receiving an application under this Schedule and before
disposing of it, OFCOM may require the applicant to furnish additional
information about any one or more of the following –
(a) the matters that must be
indicated in the technical plan;
(b) the applicant’s proposals
with respect to the matters mentioned in sub-paragraph (1)(c) to (e); and
(c) the matters mentioned in
sub-paragraph (3).
(5) Any
information to be furnished to OFCOM under this paragraph must be in such form,
and must be verified, in such manner as they may require.
Notice
inviting public representations
4
(1) As
soon as reasonably practicable after the date specified in a notice under
paragraph 1 as the closing date for applications, OFCOM must
publish –
(a) the name of every person
who has made an application to them in response to their notice;
(b) particulars of the
technical plan submitted by each applicant;
(c) the proposals submitted
by each applicant with respect to the matters mentioned in paragraph 3(1)(c) to
(e);
(d) such other information
connected with each application as OFCOM consider appropriate; and
(e) a notice under
sub-paragraph (2).
(2) The
notice required by this paragraph is one that –
(a) invites representations
to be made to OFCOM with respect to the other matters published under this
paragraph; and
(b) specifies the manner in
which, and the time by which, such representations have to be made.
(3) Publication
of any information or notice under this paragraph is to be in such manner as
OFCOM consider appropriate.
Determination
of applications
5
(1) This
paragraph applies where, in response to a notice under paragraph 1, a person
has made an application for a licence to provide the public teletext service.
(2) OFCOM
must not proceed to consider whether to award the applicant the licence in
accordance with the following provisions of this paragraph unless it appears to
them –
(a) that the applicant’s
technical plan, in so far as it involves the use of an electronic
communications network, contains proposals that are acceptable to them;
(b) that the applicant’s
proposals with respect to the matters mentioned in paragraph 3(1)(c) to (e) are
acceptable to them; and
(c) that the services
proposed to be provided under the licence would be capable of being maintained
throughout the period for which the licence would be in force.
(3) In
determining whether it appears to them as mentioned in sub-paragraph (2),
OFCOM must take account of any representations made to them in response to the
invitation published under paragraph 4.
(4) Sections
17 and 17A of the 1990 Act (award of licence to highest cash bidder and
financial conditions) apply in relation to a licence to provide the public
teletext service as they apply in relation to a Channel 3 licence, but with the
modifications set out in sub-paragraphs (5) and (6).
(5) In
the application of section 17 of the 1990 Act in accordance with sub-paragraph (4) –
(a) any reference to an
applicant is to be construed as a reference to an applicant in whose case it
appears to OFCOM as mentioned in sub-paragraph (2);
(b) the provisions of
subsection (4) down to the end of paragraph (b) are to be omitted;
(c) in subsection (7)(a), the
reference to section 19(1) of the 1990 Act is to be construed as a reference to
paragraph 7 of this Schedule;
(d) subsection (12) shall
have effect with the substitution of the following paragraph for paragraph (b) –
“(b) the name of every other
applicant in whose case it appeared to OFCOM as mentioned in paragraph 5(2) of
Schedule 10 to the Communications Act 2003;”
(e) in subsection (14), the
references to a notice under section 15(1) of the 1990 Act and a notice under
Part 1 of that Act shall each have effect as a reference to a notice under
paragraph 1 of this Schedule.
(6) In
the application of section 17A of the 1990 Act in accordance with sub-paragraph (4) –
(a) the reference in
subsection (1)(b) to section 15(3)(g) of the 1990 Act shall have effect as a
reference to paragraph 3(1)(g) of this Schedule; and
(b) the reference in
subsection (3) to a notice under section 15(1) of the 1990 Act shall have
effect as a reference to a notice under paragraph 1 of this Schedule.
Revocation
of award
6
(1) This
paragraph applies if, at any time after a licence to provide the public
teletext service has been awarded to a person, but before it has come into
force –
(a) that person indicates to
OFCOM that he does not intend to provide, or secure the provision of, the
licensed service; or
(b) OFCOM have, for any other
reason, reasonable grounds for believing that the licensed service will not be
provided once the licence has come into force.
(2) OFCOM
must revoke the licence by serving a notice of revocation on the person to whom
it was awarded.
(3) OFCOM
may then award the licence again in accordance with section 17 of the 1990 Act
(as applied by paragraph 5 of this Schedule) as if the person whose licence is
revoked had not made an application.
(4) Sub-paragraph (3)
has effect subject to subsection (14) of section 17 of the 1990 Act (as so
applied) (re-publication of invitation to make applications) as if the
reference in that subsection to the following provisions of Part 1 of that
Act included a reference to that sub-paragraph.
(5) Before
acting under sub-paragraphs (2) and (3) in a case falling within sub-paragraph (1)(b),
OFCOM must serve a notice on the person awarded the licence stating their
grounds for believing that the licensed service will not be provided once the
licence has come into force.
(6) Where
such a notice is required to be given, OFCOM must not revoke the licence unless
they have given the person to whom it was awarded a reasonable opportunity of
making representations to them about the matters by reference to which they are
proposing to revoke it.
(7) In
the case of a licence to provide a service that must comprise both –
(a) an analogue teletext
service, and
(b) a teletext service
provided in digital form,
the references in
sub-paragraphs (1) and (5) to the licensed service are references to one
or both of those services.
PART
2
CONDITIONS AND
ENFORCEMENT OF LICENCE
Payments
to be made in respect of the public teletext service
7
(1) A
licence to provide the public teletext service must include conditions
requiring the licence holder to pay the following amounts to OFCOM (in addition
to any fees required to be so paid by virtue of section 4(1)(b) of the 1990
Act) –
(a) a specified amount in
respect of the first complete calendar year falling within the licence period;
(b) in respect of each
subsequent year falling wholly or partly within the licence period, that amount
increased by the appropriate percentage;
(c) in respect of each
accounting period of his falling within the licence period, an amount
representing a specified percentage of qualifying revenue for that accounting
period.
(2) The
amount specified for the purposes of sub-paragraph (1)(a) must be –
(a) in the case of the
replacement licence under section 221, the amount proposed in accordance with
subsection (5)(a) of that section;
(b) in the case of a licence
renewed under section 222, the amount determined under section 223(1)(a); and
(c) in any other case, the
amount specified in the licence holder’s cash bid.
(3) The
percentage specified for the purposes of sub-paragraph (1)(c) in respect
of an accounting period must be –
(a) in the case of the
replacement licence under section 221, nil;
(b) in the case of a licence
renewed under section 222, the percentage determined under section 223(1)(b);
and
(c) in any other case, the
percentage determined and specified for the purposes of paragraph 1(2)(f) of
this Schedule.
(4) A
licence to provide the public teletext service may also include
conditions –
(a) enabling OFCOM to
estimate before the beginning of an accounting period the amount due for that
period by virtue of any condition imposed under this paragraph; and
(b) requiring the licence
holder to pay the estimated amount by monthly instalments throughout that
period.
(5) Such
a licence may, in particular, include conditions –
(a) authorising OFCOM to
revise an estimate on one or more occasions;
(b) requiring them to alter
the amounts of the instalments payable by the licence holder to take account of
the revised estimate;
(c) providing for the
adjustment of an overpayment or underpayment.
(6) This
paragraph has effect subject to sections 225 and 226 and to the requirement in
section 221(5)(b).
(7) In
this paragraph “the appropriate percentage” has the same meaning as in section
19 of the 1990 Act.
Corrections
and statements of findings by the public teletext provider
8
(1) Section
40 of the 1990 Act (power to direct correction or a statement of findings)
shall have effect in relation to the public teletext service as it has effect
in relation to a Channel 3 service but as if the references in subsection (4)
to a programme were references to an item.
(2) OFCOM’s
powers by virtue of this paragraph in relation to any matter are not affected
by any prior exercise by them in relation to that matter of their powers under
either or both of paragraphs 9 and 10.
Enforcement
of the licence for the public teletext service
9
(1) If
OFCOM are satisfied that the holder of the licence to provide the public
teletext service has –
(a) contravened a condition
of the licence, or
(b) failed to comply with a
direction given to him by OFCOM under or by virtue of a provision of the 1990
Act, the 1996 Act or Part 3 of this Act,
they may serve on him a
notice requiring him to pay a specified financial penalty to them.
(2) The
maximum amount which a person may be required to pay by way of a penalty under
this paragraph is 5 per cent. of the qualifying revenue for his last complete
accounting period.
(3) Where
an accounting period by reference to which the maximum amount of a penalty
falls to be calculated has not ended when the penalty is imposed, the amount
taken into account in respect of that period is to be the amount estimated by
OFCOM.
(4) OFCOM
are not to serve a notice under this paragraph on any person unless they have
given him a reasonable opportunity of making representations to them about the
matters complained of.
(5) A
notice requiring a person to pay a penalty under this paragraph must specify
the period within which it is to be paid.
Power to
shorten licence period
10
(1) If
OFCOM are satisfied that the holder of the licence to provide the public teletext
service has –
(a) contravened a condition
of the licence, or
(b) failed to comply with a
direction given to him by OFCOM under or by virtue of any provision of the 1990
Act, the 1996 Act or Part 3 of this Act,
they may serve on him a
notice reducing the period for which the licence is to be in force by a
specified period not exceeding two years.
(2) OFCOM
are not to serve a notice under this paragraph on any person unless they have
given him a reasonable opportunity of making representations to them about the
matters in respect of which it is served.
(3) Where
a licence is due to expire on a particular date by virtue of a notice served on
a person under this paragraph, OFCOM may, on the application of that person,
revoke that notice by a further notice served on him at any time before that
date.
(4) OFCOM
may exercise their power under sub-paragraph (3) only if they are
satisfied that, since the date of the earlier notice, the conduct of the
licence holder in relation to the operation of the licensed service has been
such as to justify the revocation of that notice.
Revocation
for contravention of condition or direction
11
Section 42 of the 1990
Act (revocation for contravention) shall apply in relation to the licence to
provide the public teletext service as it applies in relation to a licence to
provide a Channel 3 service.
Penalty
on revocation
12
(1) Where
OFCOM revoke the licence to provide the public teletext service (whether under
paragraph 6 or a provision of the 1990 Act or 1996 Act), they must serve on the
licence holder a notice requiring him to pay a specified financial penalty to
them.
(2) The
maximum amount which a person may be required to pay by way of a penalty under
this paragraph is the maximum given by sub-paragraphs (3) and (4).
(3) In
a case where the licence is revoked under paragraph 6 or the penalty is imposed
before the end of the first complete accounting period of the licence holder to
begin in the licence period, the maximum penalty is whichever is the greater
of –
(a) £500,000; and
(b) 7 per cent. of the amount
which OFCOM estimate would have been the qualifying revenue for the first
complete accounting period of the licence holder falling within the period for
which the licence would have been in force.
(4) In
any other case, the maximum penalty is whichever is the greater of –
(a) £500,000; and
(b) 7 per cent. of
the qualifying revenue for the last complete accounting period of the licence
holder falling within the licence period.
(5) A
notice requiring a person to pay a penalty under this paragraph must specify
the period within which it is to be paid.
(6) A
financial penalty that must be paid by virtue of this paragraph by a body of
any description shall also be recoverable –
(a) as a debt due to OFCOM
from the person who controls the body; or
(b) if two or more persons
control it, as a debt due jointly and severally from them all.
(7) Sub-paragraph (6)
is in addition to the provision for the recovery of penalties contained in
section 346, but the amount recovered in respect of any one penalty must not
exceed the full amount of that penalty.
(8) References
in this paragraph to a person controlling a body are references to his
controlling it within the meaning of Schedule 2 to the 1990 Act.
Power to
modify penalties in paragraph 12
13
(1) The
Secretary of State may by order substitute a different sum for the sum for the
time being specified in paragraph 12(3)(a) or (4)(a).
(2) * * * * *
PART
3
INTERPRETATION OF
SCHEDULE
14
In this Schedule “licence
period”, in relation to a licence, means the period for which the licence is in
force.
15
(1) For
the purposes of this Schedule the qualifying revenue for an accounting period
of the holder of a licence to provide the public teletext service consists of
the aggregate of all the following amounts –
(a) the amounts received or
to be received by a person mentioned in sub-paragraph (2) in consideration
of the inclusion in the licensed service in that period of advertisements or
other items; and
(b) the amounts received or
to be received by such a person in respect of the provision of the service
from –
(i) a person authorised by the licence holder
to provide the whole or a part of the licensed service; or
(ii) a person who is a
connected person in relation to a person so authorised.
(2) Those
persons are –
(a) the licence holder; or
(b) a person who is a
connected person in relation to the licence holder without being a person
authorised by the licence holder to provide the whole or a part of the licensed
service.
(3) Part 1
of Schedule 7 to the 1990 Act applies for determining qualifying revenue
for the purposes of this Schedule as it applies for the purposes of Part 1
of that Act.
(4) Where,
in the case of the licence to provide the public teletext service –
(a) the first complete
accounting period of the licence holder to fall within the licence period does
not begin at the same time as the licence period, or
(b) the last complete accounting
period of his to fall within the licence period does not end at the same time
as the licence period,
references in this
Schedule to an accounting period of the licence holder include references to
such part of the accounting period preceding the first complete accounting
period, or (as the case may be) following the last complete accounting period,
as falls within the licence period.
(5) In
this paragraph “connected person” has the same meaning as in Schedule 2 to
the 1990 Act.
SCHEDULE
11
Sections 291 and 294
APPROVAL,
IMPOSITION AND MODIFICATION OF NETWORKING ARRANGEMENTS
Application
of Schedule
1
(1) This
Schedule applies where OFCOM’s approval of networking arrangements entered into
by the holders of regional Channel 3 licences is required –
(a) for the purposes of
conditions included in regional Channel 3 licences in accordance with section
291; or
(b) in order for networking
arrangements made by OFCOM to cease to have effect in accordance with section
292.
(2) This
Schedule also has effect as respects –
(a) the imposition by OFCOM
under section 292 of networking arrangements;
(b) the modification of such
arrangements following a review under section 293; and
(c) the making of proposals
for modifications of networking arrangements following such a review.
Approval
required for modifications
2
(1) Where
networking arrangements are approved by OFCOM for purposes mentioned in
paragraph 1(1), those arrangements are not to be modified unless OFCOM have
approved the modifications in accordance with this Schedule.
(2) This
paragraph does not apply to modifications proposed by OFCOM under section 293.
Procedure
for giving approval
3
(1) This
paragraph applies where arrangements or modifications are submitted to OFCOM
for their approval.
(2) OFCOM
must publish a description of the arrangements or modifications that have been
submitted.
(3) The
publication must be in such manner as OFCOM consider appropriate for bringing
the matters published to the attention of the persons who, in OFCOM’s opinion,
are likely to be affected by the arrangements or modifications.
(4) After
allowing a reasonable time after the publication for the making of
representations, OFCOM must consider the arrangements or modifications and
decide whether or not to approve them.
Decision
of OFCOM whether or not to approve arrangements or modifications
4
(1) The
decision made by OFCOM under paragraph 3(4) has to be one of the
following –
(a) a decision to approve the
arrangements or modifications unconditionally;
(b) a decision to give a
conditional approval to the arrangements or modifications;
(c) a decision to refuse
approval.
(2) A
conditional approval is one that has effect only if effect is given, in
relation to the proposed arrangements or modifications, to changes proposed by
OFCOM.
(3) Before
deciding to give a conditional approval, OFCOM must consult every holder of a
regional Channel 3 licence about the changes they are proposing.
(4) When
OFCOM have made their decision, they must prepare a report setting out –
(a) their decision; and
(b) their reasons for that
decision.
(5) OFCOM
must publish the report and send a copy of it to –
(a) the Office of Fair
Trading; and
(b) every person to whom the
relevant arrangements will apply, or do apply.
(6) The
relevant arrangements are –
(a) the arrangements for
which approval has been sought; or
(b) the arrangements which
are the subject of the modifications for which approval has been sought.
Notification
of decisions on imposition of arrangements
5
(1) Where
OFCOM impose arrangements they must prepare and publish a report setting out
details of the imposed arrangements.
(2) Where
OFCOM carry out a review under section 293, they must prepare and publish a
report setting out –
(a) their conclusions on the
review;
(b) their reasons for those
conclusions; and
(c) the modifications (if
any) that they are proposing, or intend to make, following the review.
(3) OFCOM
must send a copy of a report prepared under this paragraph to –
(a) the Office of Fair
Trading [and to the Economic Development Committee of the States of Jersey if
the subject matter of the report is concerned with anything connected with the
Bailiwick of Jersey]; and
(b) every person to whom the
relevant arrangements will apply or do apply.
(4) The
relevant arrangements are –
(a) the arrangements which
are imposed; or
(b) the arrangements which
are the subject of the modifications proposed by OFCOM or to be made by them.
Competition
tests applying to OFCOM’s decisions
6
* *
*
*
*
*
*
Other
matters to be taken into account
7
(1) OFCOM
must not –
(a) approve arrangements or
modifications,
(b) impose arrangements or
modify imposed arrangements, or
(c) propose modifications following a review under section 293,
unless they consider that
the arrangements, or the arrangements as proposed to be modified, are
satisfactory.
(2) OFCOM’s
consideration under sub-paragraph (1) must include consideration of the
following two factors.
(3) The
first factor is whether the arrangements, or the arrangements as proposed to be
modified, represent a satisfactory means of achieving the purpose set out in
section 290(4)(c).
(4) The
second factor is the likely effect of the arrangements, or the arrangements as modified,
on the ability of the persons who will be or are the holders of regional
Channel 3 licences, or of any of them, to maintain the quality and range
of –
(a) regional programmes
included in regional Channel 3 services; and
(b) the other programmes included
in such services which contribute to the regional character of the services.
(5) In
this paragraph “regional programme”, in relation to a regional Channel 3
service, means a programme (including a news programme) which is of particular
interest –
(a) to persons living within
the area for which the service is provided;
(b) to persons living within
a part of that area; or
(c) to particular communities
living within that area.
Duty to
refuse approval in certain cases
8
(1) This
paragraph applies to a decision by OFCOM –
(a) to approve arrangements
or modifications;
(b) to impose arrangements or
to modify imposed arrangements; or
(c) to propose modifications
following a review under section 293.
(2) OFCOM
must not make that decision if it appears to them that the arrangements, or the
arrangements as proposed to be modified, would be likely to be prejudicial to
the ability of holders of regional Channel 3 licences, or of any of them, to
comply with –
(a) their public service
remits;
(b) conditions imposed on
them under section 286;
(c) conditions imposed on
them under section 287; or
(d) conditions imposed on
them under section 352.
Appeals
against decisions relating to competition test
9
(1) A
person holding a regional Channel 3 licence may appeal to the [Royal Court of
Jersey] against the following decisions by OFCOM –
(a) a decision on how to
dispose of an application for the approval of arrangements or modifications;
(b) a decision to impose
arrangements or to modify imposed arrangements; or
(c) a decision to propose
modifications following a review under section 293.
(2) An
appeal can be made only by sending the [Royal Court of Jersey] a notice of
appeal within the period specified, in relation to the decision appealed
against, in [Royal Court of Jersey] rules.
(3) The
notice of appeal must set out the grounds of appeal.
(4) The
only grounds on which an appeal may be brought are –
(a) that OFCOM have wrongly
decided that a competition test is or is not satisfied in relation to
arrangements or modifications submitted to them for approval;
(b) that a competition test
is not satisfied in the case of arrangements proposed by OFCOM;
(c) that provisions contained
in arrangements proposed by OFCOM for satisfying a competition test are not
required for that purpose;
(d) that the requirement to
satisfy a competition test should be discharged in a different manner from that
in which it would be satisfied in accordance with arrangements proposed by
OFCOM.
(5) In
sub-paragraph (4) “arrangements proposed by OFCOM” means –
(a) arrangements or modified
arrangements as they will have effect after giving effect to changes proposed
by OFCOM in giving a conditional approval;
(b) arrangements imposed by
them;
(c) imposed arrangements as
modified by them;
(d) arrangements as modified
by proposals made by OFCOM following a review under section 293.
(6) The
holder of a regional Channel 3 licence is not required by the conditions of his
licence to take steps for giving effect to a decision of OFCOM at any time when
an appeal under this Schedule against that decision is pending.
Decisions
on an appeal
10
(1) Appeals
to the [Royal Court of Jersey] under paragraph 9 are to be disposed of in
accordance with this paragraph.
(2) The
[Royal Court of Jersey] shall decide the appeal on the merits and by reference
to the grounds of appeal set out in the notice of appeal.
(3) The
[Royal Court of Jersey] shall decide what (if any) is the appropriate decision
for OFCOM to have made in relation to the matters to which those grounds relate.
(4) The
[Royal Court of Jersey] shall then either –
(a) confirm OFCOM’s decision;
or
(b) remit the matter to OFCOM
with such directions (if any) as the [Royal Court of Jersey] considers
appropriate for giving effect to its decision.
(5) The
[Royal Court of Jersey] must not direct OFCOM to take any action which they
would not otherwise have had power to take in relation to the matter under
appeal.
(6) It
shall be the duty of OFCOM to comply with every direction given to them under
sub-paragraph (4).
(7) * * * * *
Appeals
against decisions of the Tribunal
11
(1) A
decision of the [Royal Court of Jersey] on an appeal under paragraph 9 may
itself be appealed.
(2) An
appeal under this [to the Jersey Court of Appeal].
(3) An
appeal under this paragraph may be brought by a party to the proceedings before
the [Royal Court of Jersey].
(4) An
appeal under this paragraph requires the [leave of the Royal Court of Jersey or
the Jersey Court of Appeal].
(5) In
this paragraph references to a decision of the Tribunal include references to a
direction given by it under paragraph 10(4).
Information
for OFCOM
12
(1) OFCOM
may by notice require a person –
(a) to produce to them such
documents specified or described in the notice, or
(b) to furnish them with such
other information so specified or described,
as they consider necessary
in order to determine for the purposes of section 293 or this Schedule whether
the competition tests are satisfied.
(2) A
requirement imposed by a notice under this paragraph has to be complied with by
producing the document, or by furnishing the required information, at the time
and place specified in the notice.
(3) If
the requirement is one for the furnishing of information otherwise than by the
production of a document, the information must be furnished in the manner
specified in the notice.
(4) The
only documents that a person is required to produce by a notice under this
paragraph are those that are in his custody or under his control –
(a) at the time of the
notice; or
(b) at a time between that
time and the time when the notice must be complied with.
Enforcement
of information provisions
13
(1) The
[Royal Court of Jersey] may, on an application by OFCOM, enquire into whether
any person (“the defaulter”) has refused or otherwise failed, without
reasonable excuse, to comply with a requirement contained in a notice under
paragraph 12.
(2) An
application under sub-paragraph (1) shall include details of the possible
failure which OFCOM consider has occurred.
(3) In
enquiring into a case under sub-paragraph (1), the [Royal Court of Jersey]
shall hear –
(a) any witness who may be
produced against or on behalf of the defaulter; and
(b) any statement which may
be offered in defence.
(4) Sub-paragraphs (5)
and (6) apply where the [Royal Court of Jersey] is satisfied, after hearing any
witnesses and statements as mentioned in sub-paragraph (3), that the
defaulter has refused or failed, without reasonable excuse, to comply with the
requirement contained in the notice under paragraph 12.
(5) The
[Royal Court of Jersey] may punish the defaulter as it would have been able to
punish him had he been guilty of contempt of court.
(6) Where
the defaulter is a body corporate, the power of the [Royal Court of Jersey] to
punish the defaulter includes power to punish a director or officer of the body
corporate.
(7) Where
the defaulter is a partnership constituted under the law of Scotland, the power
of the [Royal Court of Jersey] to punish the defaulter includes power to punish
a member of the partnership.
(8) A
person is guilty of an offence if he intentionally alters, suppresses or
destroys a document which he has been required to produce by a notice under
paragraph 12.
(9) A
person is guilty of an offence if –
(a) he supplies information
to OFCOM in purported compliance with a notice given to him under paragraph 12;
(b) the information is false
or misleading in a material respect; and
(c) he knows that it is false
or misleading in a material respect or is reckless as to whether it is false or
misleading in a material respect.
(10) A
person is guilty of an offence if –
(a) he supplies information
to another person knowing that the information is to be used for complying with
a notice under paragraph 12;
(b) the information is false
or misleading in a material respect; and
(c) he knows that it is false
or misleading in a material respect or is reckless as to whether it is false or
misleading in a material respect.
(11) A
person guilty of an offence under this paragraph shall be [liable to a fine or
to imprisonment for two years, or to both].
(12) * * * * *
Confidentiality
and defamation
14
(1) When
publishing a report prepared under paragraph 4 or 5, OFCOM must have regard to
the need to exclude from the publication, so far as practicable, the matters
which are confidential in accordance with sub-paragraphs (2) and (3).
(2) A
matter is confidential under this sub-paragraph if –
(a) it relates specifically
to the affairs of a particular body; and
(b) publication of that
matter would or might, in OFCOM’s opinion, seriously and prejudicially affect
the interests of that body.
(3) A
matter is confidential under this sub-paragraph if –
(a) it relates to the private
affairs of an individual; and
(b) publication of that
matter would or might, in OFCOM’s opinion, seriously and prejudicially affect
the interests of that individual.
(4) For
the purposes of the law of defamation absolute privilege attaches to every
report prepared under paragraph 4 or 5.
Interpretation
of Schedule
15
In this Schedule –
“competition test” is to
be construed in accordance with paragraph 6;
* * * * *
* * * * *
SCHEDULE
12
Section 338
CORRESPONDING
OBLIGATIONS OF THE BBC AND WELSH AUTHORITY
PART
1
THE BBC
Quotas
for independent productions
1
(1) It
shall be the duty of the BBC to secure that, in each year, not less than 25 per
cent. of the total amount of time allocated to the broadcasting of qualifying
programmes included in the television broadcasting services provided by the BBC
is allocated to the broadcasting of a range and diversity of independent
productions.
(2) In
this paragraph –
(a) a reference to qualifying
programmes is a reference to programmes of such description as the Secretary of
State may by order specify as describing the programmes that are to be
qualifying programmes for the purposes of this paragraph;
(b) a reference to
independent productions is a reference to programmes of such description as the
Secretary of State may by order specify as describing the programmes that are
to be independent productions for the purposes of this paragraph; and
(c) a reference to a range of
independent productions is a reference to a range of such productions in terms
of cost of acquisition as well as in terms of the types of programme involved.
(3) The
Secretary of State may by order amend sub-paragraph (1) by substituting a
different percentage for the percentage for the time being specified in that
sub-paragraph.
(4) The
Secretary of State may also by order provide for the BBC to have the duty set
out in sub-paragraph (5), either instead of or as well as the one set out
in sub-paragraph (1).
(5) That
duty is a duty to secure that, in each year, not less than the percentage
specified in the order of the programming budget for that year for the
television broadcasting services provided by the BBC is applied in the
acquisition of independent productions.
(6) The
power to make an order under sub-paragraph (4) includes power to provide
that the BBC are again to be subject to a duty to which they have previously
ceased to be subject by virtue of such an order, in addition to or instead of
the duty to which they are subject (apart from the exercise of that power) by
virtue of this paragraph.
(7) The
Secretary of State is not to make an order for the BBC to be or to cease to be
subject to the duty mentioned in sub-paragraph (1) or (5) unless –
(a) OFCOM have made a
recommendation to him that the BBC should be subject to that duty, or should
cease to be subject to it; and
(b) the order gives effect to
that recommendation.
(8) Where
television broadcasting services are designated by or under the BBC Charter and
Agreement –
(a) as services that must be
treated separately for the purposes of the duty imposed by sub-paragraph (1)
or a duty imposed under sub-paragraph (4), or
(b) as services that must be
included in a group of services that must be taken together for the purposes of
such a duty,
that duty is to have
effect in accordance with sub-paragraph (9).
(9) A
duty having effect in accordance with this sub-paragraph is to have effect as
if (instead of applying to all the television broadcasting services provided by
the BBC, taken together) it applied separately –
(a) in relation to each
service that is required to be treated separately; and
(b) in relation to each group
of services that are required to be taken together.
(10) The
BBC must comply with directions given to them by OFCOM for the purpose
of –
(a) carrying forward to one
or more subsequent years determined in accordance with the direction any
shortfall for any year in their compliance with the duties imposed by virtue of
sub-paragraph (1) or (4); and
(b) thereby increasing the
percentage applicable for the purposes of those duties to the subsequent year
or years.
(11) For
the purposes of this paragraph –
(a) the amount of the
programming budget for a year, and
(b) the means of determining
the amount of that budget that is applied for any purpose,
are to be computed in
accordance with such provision as may be set out in an order made by the
Secretary of State, or as may be determined by OFCOM in accordance with such an
order.
(12) Before
making an order under this paragraph the Secretary of State must consult OFCOM
and the BBC.
(13) * * * * *
(14) In
this paragraph –
“acquisition”, in relation
to a programme, includes commissioning and acquiring a right to include it in a
service or to have it broadcast; and
“programming budget” means
the budget for the production and acquisition of qualifying programmes.
Duty to
publicise complaints procedures etc.
2
(1) It
shall be the duty of the BBC to make arrangements for securing that the matters
mentioned in sub-paragraph (2) are brought to the attention of the public
(whether by means of broadcasts or otherwise).
(2) Those
matters are –
(a) OFCOM’s functions under
Part 5 of the 1996 Act in relation to services provided by the BBC; and
(b) any procedures
established by OFCOM or the BBC for the handling and resolution of complaints
about the observance by the BBC of standards set under section 319.
PART
2
* * * * * * *
SCHEDULE
13
Section 345
FINANCIAL
PENALTIES UNDER THE BROADCASTING ACTS
PART
1
BROADCASTING ACT 1990
Preliminary
1
The 1990 Act shall be
amended as follows.
Revocation
of television services licence
2
(1) In
subsection (3) of section 18[14] (penalty on revocation of television services licence), for “a
financial penalty of the prescribed amount” there shall be substituted “a
specified financial penalty”.
(2) For
subsection (4) of that section (amount of penalty) there shall be
substituted –
“(3A) The maximum amount which a person may be
required to pay by way of a penalty under subsection (3) is the maximum penalty
given by subsections (3B) and (3C).
(3B) In a case where the licence is revoked under
this section or the penalty is imposed before the end of the first complete
accounting period of the licence holder to fall within the period for which the
licence is in force, the maximum penalty is whichever is the greater of –
(a) £500,000; and
(b) 7 per cent. of the
amount which OFCOM estimate would have been the qualifying revenue for the
first complete accounting period of the licence holder falling within the
period for which the licence would have been in force.
(3C) In any other case, the maximum penalty is
whichever is the greater of –
(a) £500,000; and
(b) 7 per cent. of the
qualifying revenue for the last complete accounting period of the licence
holder falling within the period for which the licence is in force.
(3D) Section 19(2) to (6) applies for estimating or
determining qualifying revenue for the purposes of subsection (3B) or (3C)
above.”
(3) * * * * *
Licences
for Channel 3 services and for Channels 4 and 5
3
(1) For
subsection (2) of section 41[15] (penalties for failure by holder of licence for Channel 3 services,
Channel 4 or Channel 5 to comply with licence conditions or directions) there
shall be substituted –
“(1A) The amount of a financial penalty imposed on a
person in pursuance of subsection (1)(a) shall not exceed 5 per cent. of the
qualifying revenue for the licence holder’s last complete accounting period
falling within the period for which his licence has been in force (‘the relevant
period’).
(1B) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the
penalty is imposed, subsection (1A) is to be construed as referring to 5 per
cent. of the amount which OFCOM estimate to be the qualifying revenue for that
accounting period.
(1C) Section 19(2) to (6) applies for determining
or estimating qualifying revenue for the purposes of subsection (1A) or (1B)
above.”
(2) * * * * *
Restricted
services licences
4
(1) In
subsection (2) of section 42B[16] (application of sections 40 to 42 to licensing of restricted
services), for “subsections (3) and (4)” there shall be substituted
“subsections (3) to (3C)”.
(2) In
subsection (3) of that section –
(a) for “subsection (2)”
there shall be substituted “subsections (1A) to (1C)”; and
(b) for the words from “shall
not exceed whichever is the greater” onwards there shall be substituted “is the
maximum penalty given by subsection (3A).”
(3) For
subsection (4) of that section (penalties for failure to comply with conditions
or directions) there shall be substituted –
“(3A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent. of the
qualifying revenue for the licence holder’s last complete accounting period
falling within the period for which his licence has been in force (‘the
relevant period’).
(3B) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the
penalty is imposed, subsection (3A)(b) is to be construed as referring to 5 per
cent. of the amount which OFCOM estimate to be the qualifying revenue for that
accounting period.
(3C) Section 19(2) to (6) applies for determining
or estimating qualifying revenue for the purposes of subsection (3A) or (3B)
above.”
(4) * * * * *
Additional
television services licences
5
(1) For
subsection (2) of section 55[17] (penalties for failure by holder of licence for additional television
service to comply with licence conditions or directions) there shall be
substituted –
“(1A) The amount of a financial penalty imposed on a
person in pursuance of subsection (1) shall not exceed 5 per cent. of the
qualifying revenue for the licence holder’s last complete accounting period
falling within the period for which his licence has been in force (‘the
relevant period’).
(1B) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the penalty
is imposed, subsection (1A) is to be construed as referring to 5 per cent. of
the amount which OFCOM estimate to be the qualifying revenue for that
accounting period.
(1C) Section 52(2) applies for determining or
estimating qualifying revenue for the purposes of subsection (1A) or (1B)
above.”
(2) * * * * *
Revocation
of national sound broadcasting licence
6
(1) In
subsection (3) of section 101[18] (penalty on revocation of national sound broadcasting licence), for
“a financial penalty of the prescribed amount” there shall be substituted “a
specified financial penalty”.
(2) For
subsection (4) of that section (amount of penalty) there shall be substituted –
“(3A) The maximum amount which a person may be
required to pay by way of a penalty under subsection (3) is the maximum penalty
given by subsections (3B) and (3C).
(3B) In a case where the licence is revoked under
this section or the penalty is imposed before the end of the first complete
accounting period of the licence holder to fall within the period for which the
licence is in force, the maximum penalty is whichever is the greater of –
(a) £250,000; and
(b) 7 per cent. of the
amount which OFCOM estimate would have been the qualifying revenue for the
first complete accounting period of the licence holder falling within the
period for which the licence would have been in force.
(3C) In any other case, the maximum penalty is
whichever is the greater of –
(a) £250,000; and
(b) 7 per cent. of the
qualifying revenue for the last complete accounting period of the licence
holder falling within the period for which the licence is in force.
(3D) Section 102(2) to (6) applies for estimating
or determining qualifying revenue for the purposes of subsection (3B) or (3C)
above.”
(3) * * * * *
Licences
for analogue sound services
7
(1) For
subsection (2) of section 110[19] (penalties for failure by holder of national sound broadcasting
licence to comply with licence conditions or directions) there shall be
substituted –
“(1A) The maximum amount which the holder of a
national licence may be required to pay by way of a financial penalty imposed
in pursuance of subsection (1)(a) is the maximum penalty given by subsection
(1B).
(1B) The maximum penalty is whichever is the
greater of –
(a) £250,000; and
(b) 5 per cent. of the
qualifying revenue for his last complete accounting period falling within the
period for which his licence has been in force (‘the relevant period’).
(1C) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the
penalty is imposed, subsection (1B)(b) is to be construed as referring to 5 per
cent. of the amount which OFCOM estimate to be the qualifying revenue for that
accounting period.
(1D) Section 102(2) to (6) applies for determining
or estimating qualifying revenue for the purposes of subsection (1B) or (1C)
above.”
(2) In
subsection (3) of that section (maximum penalty for failure by holder of a
sound broadcasting licence that is not a national licence to comply with
licence conditions or directions), for “£50,000” there shall be substituted
“£250,000”.
(3) * * * * *
Additional
radio services licences
8
(1) For
subsection (2) of section 120[20] (penalties for failure by holder of additional radio services
licence to comply with licence conditions or directions) there shall be
substituted –
“(1A) The amount of a financial penalty imposed on a
person in pursuance of subsection (1) shall not exceed 5 per cent. of the
qualifying revenue for the licence holder’s last complete accounting period
falling within the period for which his licence has been in force (‘the
relevant period’).
(1B) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the
penalty is imposed, subsection (1A) is to be construed as referring to 5 per
cent. of the amount which OFCOM estimate to be the qualifying revenue for that
accounting period.
(1C) Section 118(2) applies for determining or
estimating qualifying revenue for the purposes of subsection (1A) or (1B)
above.”
(2) * * * * *
Power to
amend penalties under the 1990 Act
9
(1) The
Secretary of State may by order amend any of the provisions of the 1990 Act
specified in sub-paragraph (2) by substituting a different sum for the sum
for the time being specified in that provision.
(2) Those
provisions are –
(a) section 18(3B)(a) and
(3C)(a);
(b) section 42B(3A)(a);
(c) section 101(3B)(a) and
(3C)(a);
(d) section 110(1B)(a) and
(3).
(3) * * * * *
PART
2
BROADCASTING ACT 1996
Preliminary
10
The 1996 Act shall be
amended as follows.
Revocation
of television multiplex licences
11
(1) In
subsection (5) of section 11 (penalty on revocation of television multiplex
licence), the words from “not exceeding” onwards shall be omitted.
(2) For
subsection (6) of that section (amount of penalty) there shall be
substituted –
“(5A) The maximum amount which a person may be
required to pay by way of a penalty under subsection (5) is the maximum penalty
given by subsections (5B) and (5C).
(5B) In a case where the licence is revoked under
this section or the penalty is imposed before the end of the first complete
accounting period of the licence holder to fall within the period for which the
licence is in force, the maximum penalty is whichever is the greater of –
(a) £500,000; and
(b) 7 per cent. of the
amount which OFCOM estimate would have been the multiplex revenue for the first
complete accounting period of the licence holder falling within the period for
which the licence would have been in force.
(5C) In any other case, the maximum penalty is
whichever is the greater of –
(a) £500,000; and
(b) 7 per cent. of the
multiplex revenue for the last complete accounting period of the licence holder
falling within the period for which the licence is in force.
(5D) Section 14 applies for estimating or
determining multiplex revenue for the purposes of subsection (5B) or (5C)
above.”
(3) * * * * *
Attribution
of television multiplex revenue
12
(1) In
subsection (1) of section 15 (attribution of multiplex revenue for the purposes
of section 17(3)), for “17(3)” there shall be substituted “17(2A) and (2B)”.
(2) In
subsection (2) of that section (attribution for the purposes of sections 23(3) and
27(3)), for “section 23(3) or section 27(3)” there shall be substituted
“sections 23(2A) to (5) and 27(2A) to (5)”.
(3) This
paragraph has effect in relation only to cases in which section 17, 23 or 27
applies as amended by this Schedule.
Multiplex
licences
13
(1) In
subsection (2) of section 17 (penalty for failure by holder of television
multiplex licence to comply with licence conditions or directions), for the
words from “whichever is the greater” onwards there shall be substituted “the
maximum penalty given by subsection (2A).”
(2) For
subsection (3) of that section (maximum penalties) there shall be
substituted –
“(2A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent. of the
share of multiplex revenue attributable to the licence holder for his last
complete accounting period falling within the period for which his licence has
been in force (‘the relevant period’).
(2B) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the
penalty is imposed, subsection (2A)(b) is to be construed as referring to 5 per
cent. of the amount which OFCOM estimate to be the share of multiplex revenue
attributable to him for that accounting period.
(2C) Section 15(1) and (3) applies for determining
or estimating the share of multiplex revenue attributable to a person for the
purposes of subsection (2A) or (2B) above.”
(3) * * * * *
Digital
television programme licences
14
(1) In
subsection (2) of section 23 (penalty for failure by holder of digital
television programme licence to comply with licence conditions or directions),
for the words from “whichever is the greater” onwards there shall be
substituted “the maximum penalty given by subsection (2A).”
(2) For
subsection (3) of that section (maximum penalties) there shall be
substituted –
“(2A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent.
of the aggregate amount of the shares of multiplex revenue attributable to him
in relation to television multiplex services and general multiplex services in
respect of relevant accounting periods.”
(3) In
subsection (4) of that section (meaning of “relevant accounting period”),
for “subsection (3)(a)” there shall be substituted “subsection (2A)”.
(4) In
subsection (5) of that section, for “not yet ended, then for the purposes of
subsection (3)” there shall be substituted “not ended when the penalty is
imposed, then for the purposes of this section”.
(5) Before
subsection (6) of that section there shall be inserted –
“(5B) Section 15(2) and (3) applies for determining
or estimating the share of multiplex revenue attributable to a person for the purposes
of subsection (2A) or (5) above.”
(6) * * * * *
Digital
additional television services licences
15
(1) In
subsection (2) of section 27 (penalty for failure by holder of digital
additional services licence to comply with licence conditions or directions),
for the words from “whichever is the greater” onwards there shall be
substituted “the maximum penalty given by subsection (2A).”
(2) For
subsection (3) of that section (maximum penalties) there shall be
substituted –
“(2A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent. of the
aggregate amount of the shares of multiplex revenue attributable to him in
relation to television multiplex services and general multiplex services in
respect of relevant accounting periods.”
(3) In
subsection (4) of that section (meaning of “relevant accounting period”),
for “subsection (3)(a)” there shall be substituted “subsection (2A)”.
(4) In
subsection (5) of that section, for “not yet ended, then for the purposes of
subsection (3)” there shall be substituted “not ended when the penalty is
imposed, then for the purposes of this section”.
(5) Before
subsection (6) of that section there shall be inserted –
“(5B) Section 15(2) and (3) applies for determining
or estimating the share of multiplex revenue attributable to a person for the
purposes of subsection (2A) or (5) above.”
(6) * * * * *
Power to
amend digital television penalties
16
For section 36(2) and (3)
(provisions that may be amended and negative resolution procedure) there shall
be substituted –
“(2) The provisions referred to in subsection (1)
are –
(a) section 11(5B)(a) and
(5C)(a);
(b) section 17(2A)(a);
(c) section 23(2A)(a); and
(d) section 27(2A)(a).
Revocation
of radio multiplex licences
17
(1) In
section 53(5) (maximum penalty on revocation of radio multiplex licence), for
“£50,000”, in both places, there shall be substituted “£250,000”.
(2) * * * * *
Attribution
of radio multiplex revenue
18
(1) In
subsection (1) of section 57 (attribution of multiplex revenue for the purposes
of sections 59(3)), for “59(3)” there shall be substituted “59(2A) and (2B)”.
(2) In
subsection (2) of that section, (attribution for the purposes of
sections 62(3) and 66(3)), for “section 62(3) or section 66(3)” there
shall be substituted “sections 62(2A) to (5) and 66(2A) to (5)”.
(3) This
paragraph has effect in relation only to cases in which section 59, 62 or 66
applies as amended by this Schedule.
Contraventions
of conditions of radio multiplex licences
19
(1) In
subsection (2) of section 59 (penalty for failure by holder of radio multiplex
licence to comply with licence conditions or directions), for the words from
“whichever is the greater” onwards there shall be substituted “the maximum
penalty given by subsection (2A).”
(2) For
subsection (3) of that section (maximum penalties) there shall be
substituted –
“(2A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent. of the
aggregate amount of the share of multiplex revenue attributable to him for his
last complete accounting period falling within a period for which his licence
has been in force (‘the relevant period’).
(2B) In relation to a person whose first complete
accounting period falling within the relevant period has not ended when the
penalty is imposed, subsection (2A)(b) is to be construed as referring to 5 per
cent. of the amount which OFCOM estimate to be the share of multiplex revenue
attributable to him for that accounting period.
(2C) Section 57(1) and (3) applies for determining
or estimating the share of multiplex revenue attributable to a person for the
purposes of subsection (2A) or (2B) above.”
(3) In
subsection (4) of that section (maximum penalty to be imposed on holder of
local radio multiplex licences for failure to comply with conditions or
directions), for “£50,000” there shall be substituted “£250,000”.
(4) * * * * *
Digital
sound programme licences
20
(1) In
subsection (2) of section 62 (penalty for failure by holder of digital sound
programme licence to comply with licence conditions or directions), for the
words from “whichever is the greater” onwards there shall be substituted “the
maximum penalty given by subsection (2A).”
(2) For
subsection (3) of that section (maximum penalties) there shall be
substituted –
“(2A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent. of the
aggregate amount of the shares of multiplex revenue attributable to him in
relation to relevant multiplex services in respect of relevant accounting
periods.”
(3) In
subsection (4) of that section (meaning of “relevant accounting period”), for
“subsection (3)” there shall be substituted “subsection (2A)”.
(4) In
subsection (5) of that section, for “not yet ended, then for the purposes of
subsection (3)” there shall be substituted “not ended when the penalty is
imposed, then for the purposes of this section”.
(5) After
that subsection there shall be inserted –
“(5A) A determination or estimate for the purposes of
subsection (2A) or (5) above of the share of multiplex revenue attributable to
a person in relation to national radio multiplex services is to be in
accordance with section 57(2) and (3).
(5B) A determination or estimate for the purposes
of subsection (2A) or (5) above of the share of multiplex revenue attributable
to a person in relation to television multiplex services or general multiplex
services is to be in accordance with section 15(2) and (3).”
(6) In
subsection (6) of that section (maximum penalty where licence is a local
digital sound programme licence), for “£50,000” there shall be substituted
“£250,000”.
(7) * * * * *
Licences
for digital additional sound services
21
(1) In
subsection (2) of section 66 (penalty for failure by holder of digital
additional sound services licence to comply with licence conditions or
directions), for the words from “whichever is the greater” onwards there shall
be substituted “the maximum penalty given by subsection (2A).”
(2) For
subsection (3) of that section (maximum penalties) there shall be
substituted –
“(2A) The maximum penalty is whichever is the greater
of –
(a) £250,000; and
(b) 5 per cent. of the
aggregate amount of the shares of multiplex revenue attributable to him in
relation to relevant multiplex services in respect of relevant accounting
periods.”
(3) In
subsection (4) of that section (maximum penalty where licence is a local
digital sound programme licence), for “£50,000” there shall be substituted
“£250,000”.
(4) In
subsection (5) of that section (meaning of “relevant accounting period”) for
“subsection (3)” there shall be substituted “subsection (2A)”.
(5) In
subsection (6) of that section, for “not yet ended, then for the purposes of
subsection (3)” there shall be substituted “not ended when the penalty is
imposed, then for the purposes of this section”.
(6) After
that subsection there shall be inserted –
“(6A) A determination or estimate for the purposes of
subsection (2A) or (6) above of the share of multiplex revenue attributable to
a person in relation to national radio multiplex services is to be in
accordance with section 57(2) and (3).
(6B) A determination or estimate for the purposes
of subsection (2A) or (6) above of the share of multiplex revenue attributable
to a person in relation to general multiplex services is to be in accordance
with section 15(2) and (3).”
(7) * * * * *
Power to
amend digital television penalties
22
For section 69(2) and (3)
(provisions that may be amended and negative resolution procedure) there shall
be substituted –
“(2) The provisions referred to in subsection (1)
are –
(a) section 53(5)(a) and
(b)(i);
(b) section 59(2A)(a) and
(4);
(c) section 62(2A)(a) and
(6); and
(d) section 66(2A)(a) and
(4).
SCHEDULE
14
Section 350
MEDIA
OWNERSHIP RULES
PART
1
CHANNEL 3 SERVICES
Ban on
newspaper proprietors holding Channel 3 licences
1
(1) A
person is not to hold a licence to provide a Channel 3 service if –
(a) he runs a national
newspaper which for the time being has a national market share of 20 per cent.
or more; or
(b) he runs national
newspapers which for the time being together have a national market share of 20
per cent. or more.
(2) A
person is not to hold a licence to provide a regional Channel 3 service
if –
(a) he runs a local newspaper
which for the time being has a local market share of 20 per cent. or more in
the coverage area of the service; or
(b) he runs local newspapers
which for the time being together have a local market share of 20 per cent. or
more in that coverage area.
(3) For
the purposes of this paragraph, where there is a licence to provide a Channel 3
service, each of the following shall be treated as holding that licence –
(a) the actual licence
holder; and
(b) every person connected
with the actual licence holder.
Restrictions
on participation
2
(1) A
person who is –
(a) the proprietor of a
national newspaper which for the time being has a national market share of 20
per cent. or more, or
(b) the proprietor of
national newspapers which for the time being together have a national market
share of 20 per cent. or more,
is not to be a participant
with more than a 20 per cent. interest in a body corporate which is the holder
of a licence to provide a Channel 3 service.
(2) A
person who is the holder of a licence to provide a Channel 3 service is not to
be a participant with more than a 20 per cent. interest in a body corporate
which is a relevant national newspaper proprietor.
(3) A
body corporate is not to be a participant with more than a 20 per cent.
interest in a body corporate which holds a licence to provide a Channel 3
service if the first body corporate is one in which a relevant national
newspaper proprietor is a participant with more than a 20 per cent. interest.
(4) A
restriction imposed by this paragraph on participation in a body corporate which
is the holder of a Channel 3 licence applies equally to participation in a body
corporate which controls the holder of such a licence.
(5) Any
restriction on participation imposed by this paragraph –
(a) on the proprietor of a
newspaper, or
(b) on the holder of a
licence,
is to apply as if he and
every person connected with him were one person.
(6) In
this paragraph “a relevant national newspaper proprietor” means a person who
runs –
(a) a national newspaper
which for the time being has a national market share of 20 per cent. or more;
or
(b) national newspapers which
for the time being together have a national market share of 20 per cent. or
more.
National
and local newspapers and their respective national and local market shares
3
(1) In
this Part of this Schedule references to a national or local newspaper are
references to a national or local newspaper circulating wholly or mainly in the
United Kingdom [or the Bailiwick of Jersey] or in [the Bailiwick of Jersey].
(2) Where
a newspaper is published in different regional editions on the same day, OFCOM
have the power to determine whether those regional editions should be treated
for the purposes of this Part of this Schedule as constituting –
(a) one national newspaper;
(b) two or more local
newspapers; or
(c) one national newspaper
and one or more local newspapers.
(3) In
the case of a newspaper which would otherwise be neither a national nor a local
newspaper for the purposes of this Part of this Schedule, OFCOM have the power
to determine, if they consider it appropriate to do so in the light of –
(a) its circulation and
influence in the United Kingdom, or
(b) its circulation or
influence in a part of the United Kingdom,
that the newspaper is to
be treated as a national or as a local newspaper for such of those purposes as
they may determine.
(4) For
the purposes of this Part of this Schedule, the national market share of a
national newspaper at any time is the percentage of the total number of copies
of all national newspapers sold in the United Kingdom in the relevant six
months which is represented by the total number of copies of that newspaper
sold in the United Kingdom in that six months.
(5) For
the purposes of this Part of this Schedule, the local market share of a local
newspaper in any area at any time is the percentage of the total number of
copies of all local newspapers sold in that area in the relevant six months
which is represented by the total number of copies of that newspaper sold in
that area in that six months.
(6) In
sub-paragraphs (4) and (5) “the relevant six months” means the six months
ending with the last whole calendar month to end before the time in question.
(7) For
the purposes of sub-paragraphs (4) and (5), the number of copies of a
newspaper sold in the United Kingdom, or in a particular area, during any
period may be taken to be such number as is estimated by OFCOM –
(a) in such manner, or
(b) by reference to such
statistics prepared by any other person,
as they think fit.
(8) In
relation to a newspaper which is distributed free of charge (rather than sold),
references in this paragraph to the number of copies sold include references to
the number of copies distributed.
Construction
of references to running a newspaper
4
For the purposes of this
Part of this Schedule a person runs a national or local newspaper if –
(a) he
is the proprietor of the newspaper; or
(b) he
controls a body which is the proprietor of the newspaper.
Coverage
area for a Channel 3 service
5
For the purposes of this
Part of this Schedule the coverage area for a Channel 3 service is the area
that is determined by OFCOM to be the area of the United Kingdom within which
that service is capable of being received at a level satisfying such technical
standards as may have been laid down by them for the purposes of this
paragraph.
Power to
amend Part 1 of Schedule
[6
The Economic Development
Committee of the States of Jersey may, as respects the Bailiwick of Jersey, by
Order vary or repeal any of the restrictions
imposed by this Part of this Schedule.]
PART
2
RADIO MULTIPLEX
SERVICES
Restriction
on holding of national radio multiplex licences
7
A person is not to hold
more than one national radio multiplex licence at the same time.
Restriction
on holding of local radio multiplex licences
8
(1) A
person is not to hold any two local radio multiplex licences at the same time
where the coverage area of one of the licensed services overlaps with the
coverage area of the other in a way that means that the potential audience for
one of them is or includes at least half the potential audience of the other.
(2) For
the purposes of this paragraph the coverage area for a local radio multiplex
service is the area determined by OFCOM to be the area in the United Kingdom
within which that service is capable of being received at a level satisfying
such technical standards as may have been laid down by them for the purposes of
this sub-paragraph.
(3) Where
a person is in contravention of this paragraph in respect of the holding by him
of local radio multiplex licences, that contravention is to be disregarded in
relation to any time if –
(a) he held those licences
immediately before the commencement of this paragraph;
(b) his holding of those
licences immediately before the commencement of this paragraph was not in
contravention of paragraph 11(4) of Part 3 of Schedule 2 to the 1990
Act; and
(c) there has not been a
relevant change of circumstances between the commencement of this paragraph and
that time.
(4) There
is a relevant change of circumstances in the case of the person in contravention
if another person becomes the holder of the two pre-commencement licences in
relation to which the contravention arises.
(5) In
sub-paragraph (4) “pre-commencement licence”, in relation to a person and
a time, means a local radio multiplex licence held by him immediately before
the commencement of this paragraph and still held by him at that time.
Connected
persons rules etc.
9
For the purposes of this
Part of this Schedule, where there is a licence to provide a radio multiplex
service, each of the following shall be treated as holding that licence –
(a) the
actual licence holder; and
(b) every
person connected with the actual licence holder.
Power to
amend Part 2 of Schedule
[10
The Economic Development
Committee of the States of Jersey may, as respects the Bailiwick of Jersey, by
Order vary or repeal any of the restrictions
imposed under this Part of this Schedule.]
PART
3
LOCAL SOUND PROGRAMME
SERVICES
Restriction
on holding of local sound broadcasting licences
11
(1) The
[Economic Development Committee of the States of Jersey] may by order
impose –
(a) requirements prohibiting
the holding at the same time by the same person, in the circumstances described
in the order, of more than the number of local sound broadcasting licences that
is determined in the manner set out in the order;
(b) requirements prohibiting
a person from holding even one local sound broadcasting licence in the
circumstances described in the order.
(2) The
circumstances by reference to which a person may be prohibited under sub-paragraph (1)
from holding a local sound broadcasting licence, and the factors that may be
used for determining the number of such licences that he may hold, include, in
particular –
(a) whether and to what
extent the coverage areas of different services provided by that person under
different local sound broadcasting licences would overlap;
(b) the sizes of the
potential audiences for those services and the times when those services would
be made available;
(c) whether and to what
extent members of the potential audiences for those services would also be
members of the potential audiences for services provided under local sound
broadcasting licences held by other persons;
(d) in a case in which
members of potential audiences for services so provided by that person would
also be members of the potential audiences for services so provided by other
persons –
(i) the number of those other persons;
(ii) the coverage areas of
their services;
(iii) the sizes of the
potential audiences for their services; and
(iv) the times when their
services are or will be made available;
(e) whether that person runs
one or more national newspapers, and their national market share;
(f) whether and to what
extent the whole or a part of the coverage area for a service for which that
person would hold a local sound broadcasting licence is or includes an area in
which one or more local newspapers run by him is circulating, and the
newspapers’ local market share;
(g) whether and to what
extent the whole or a part the coverage area for which that person would hold a
local sound broadcasting licence is or is included in the coverage area of a
regional Channel 3 service for which he also holds a licence.
(3) For
the purposes of this paragraph the coverage area for a service provided under a
local sound broadcasting licence or a Channel 3 licence is the area in the
United Kingdom within which that service is capable of being received at a
level satisfying such technical standards as may have been laid down by OFCOM
for the purposes of the provisions of an order under this paragraph.
Restriction
applying to local digital sound programme services
12
(1) The
[Economic Development Committee of the States of Jersey] may by order impose
requirements, on persons holding local digital sound programme licences,
prohibiting the provision by the same person, in the circumstances described in
the order, of more than the number of local digital sound programme services
that is determined in the manner set out in the order.
(2) The
circumstances by reference to which a person may be prohibited under
sub-paragraph (1) from providing a local digital sound programme service,
and the factors that may be used for determining the number of such services
that he may provide, include, in particular –
(a) whether and to what
extent the coverage areas of different local digital sound programme services
provided by that person would overlap;
(b) the capacity used by
those services on the relevant multiplexes;
(c) the sizes of the
potential audiences for those services and the times when those services would
be made available;
(d) whether and to what
extent members of the potential audiences for those services would also be
members of the potential audiences for local digital sound programme services
provided by other persons;
(e) in a case in which
members of the potential audiences for the services provided by that person
would also be members of the potential audiences for local digital sound
programme services provided by other persons –
(i) the number of those other persons;
(ii) the coverage areas of
their services;
(iii) the capacity used by
their services on the relevant multiplexes;
(iv) the sizes of the
potential audiences for their services; and
(v) the times when their services are or will
be made available.
(3) For
the purposes of this paragraph the coverage area for a service provided under a
local digital sound programme licence is the area in the United Kingdom within
which the relevant multiplex is capable of being received at a level satisfying
such technical standards as may have been laid down by OFCOM for the purposes
of the provisions of an order under this paragraph.
(4) In
this paragraph “the relevant multiplex”, in relation to a service provided
under a local digital sound programme licence, means the local radio multiplex
service in which the service provided under that licence is or is to be
included.
(5) For
the purposes of this paragraph a person who holds a licence to provide local
digital sound programme services provides such a service if, and only if –
(a) the service is one
provided by him and is included in a local radio multiplex service for which he
holds a local radio multiplex licence; or
(b) under a contract between
that person and a person who holds a licence to provide a local radio multiplex
service, the person holding the licence to provide the radio multiplex service
is required to include that local digital sound programme service in that
multiplex service.
Powers
supplemental to powers under paragraphs 11 and 12
13
(1) An
order under paragraph 11 or 12 may make provision for treating –
(a) persons who are connected
with a person who holds a licence,
(b) persons who are
associates of a person who holds a licence or of a person who is connected with
a person who holds a licence, and
(c) persons who (whether
alone or together with such persons as may be described in the order)
participate in a body which holds a licence or is treated as doing so by virtue
of paragraph (a) or (b),
as if each of them were
also a holder of the licence for the purposes of a requirement imposed under
that paragraph.
(2) An
order under paragraph 12 may make provision for treating –
(a) persons who are connected
with a person who provides a local digital sound programme service,
(b) persons who are
associates of a person who provides such a service or of a person who is
connected with a person who provides such a service, and
(c) persons who (whether
alone or together with such persons as may be described in the order)
participate in a body who provides such a service or is treated as doing so by
virtue of paragraph (a) or (b),
as if each of them were
also a person providing the service for the purposes of a requirement imposed
under that paragraph.
(3) An
order under paragraph 11 or 12 may also make provision for treating –
(a) persons who are connected
with each other,
(b) persons who are
associates of each other, and
(c) persons who (whether
alone or together with such persons as may be described in the order)
participate in a body,
as if they and such other persons
who are connected with, associates of or participators in any of them as may be
described in the order were the same person for the purposes of a requirement
imposed under that paragraph.
(4) An
order under paragraph 11 may make provision –
(a) as to the circumstances
in which a newspaper is to be treated as a national newspaper or a local
newspaper for the purposes of a requirement imposed under that paragraph;
(b) as to the person or
persons who are to be treated for any such purposes as running a newspaper;
(c) as to the determination
for any such purposes of the area within which a local newspaper is
circulating; and
(d) as to what is to
constitute the national market share or local market share of any newspaper or
of a number of newspapers taken together;
and provision made by
virtue of this paragraph may apply, with or without modifications, any of the
provisions of paragraph 3 or 4 of this Schedule.
(5) Power
to make provision with respect to any matter by any order under paragraph 11 or
12 includes power –
(a) to make provision with
respect to that matter by reference to the making or giving by OFCOM, in
accordance with the order, of any determination, approval or consent; and
(b) to confer such other
discretions on OFCOM as the Secretary of State thinks fit.
(6) Sub-paragraph (5)
of paragraph 12 applies for the purposes of this paragraph as it applies
for the purposes of that paragraph.
Transitional
provision for orders under paragraphs 11 and 12
14
(1) This
paragraph applies where –
(a) immediately after the
coming into force of an order under paragraph 11 or 12, a person (“the person
in contravention”) is in contravention, in any respect, of a requirement
imposed under that paragraph; and
(b) immediately before the
coming into force of the order, that person –
(i) held one or more relevant licences; but
(ii) was not, in that
respect, in contravention of a requirement imposed under that paragraph.
(2) This
paragraph does not apply in the case of the first order to be made under
paragraph 11 or 12 if the person in contravention was, immediately before the
coming into force of the order, in contravention, in relation to one or more of
the relevant licences, of a requirement imposed under Part 3 or 4 of
Schedule 2 to the 1990 Act.
(3) In
sub-paragraphs (1) and (2) the reference to a relevant licence is –
(a) in relation to the coming
into force of an order under paragraph 11, a local sound broadcasting licence;
and
(b) in relation to the coming
into force of an order under paragraph 12, a local digital sound programme
licence.
(4) The
contravention mentioned in sub-paragraph (1)(a), to the extent that it
arises by reason of the coming into force of the order, is to be disregarded
(in the case of the person in contravention) in relation to any time which
falls –
(a) after the coming into
force of the order; and
(b) before there is a
relevant change of circumstances.
(5) Where
the contravention is one arising under paragraph 11 in the case of a person who
held one or more local sound broadcasting licences immediately before the
coming into force of the order, there is a relevant change of circumstances
if –
(a) another person becomes
the holder of any of those licences, otherwise than in consequence of a
transaction under which the person in contravention ceases to be a holder of
the licence; or
(b) the person in
contravention becomes the holder of another local sound broadcasting licence.
(6) A
change of circumstances is not a relevant change of circumstances by virtue of
sub-paragraph (5)(b) unless the licence of which the person in
contravention becomes the holder is one the holding of which, with the holding
of licences already held by him, would (apart from sub-paragraph (4))
constitute a contravention of a requirement imposed under paragraph 11.
(7) Where
the contravention is one arising under paragraph 12 in the case of a person
who, under a local digital sound programme licence, was providing one or more
local digital sound programme services immediately before the coming into force
of the order, there is a relevant change of circumstances if –
(a) another person becomes
the holder of that licence, otherwise than in consequence of a transaction
under which the person in contravention ceases to be a holder of the licence;
or
(b) the person in contravention
becomes the provider of another local digital sound programme service provided
under that licence.
(8) A
change of circumstances is not a relevant change of circumstances by virtue of
sub-paragraph (7)(b) unless the service of which the person in contravention
becomes the provider is one the provision of which, with the services already
provided by him, would (apart from sub-paragraph (4)) constitute a
contravention of a requirement imposed under paragraph 12.
(9) For
the purposes of this paragraph, in its application in relation to a
contravention of a requirement imposed under paragraph 11 or 12 –
(a) references to holding a
licence or providing a local digital sound programme service are to be
construed in accordance with the provision having effect for the purposes of
that requirement; and
(b) the persons who are taken
to be holding a local digital sound programme licence immediately before the
coming into force of the order include every person who at that time would, in
accordance with that provision, be treated as providing local digital sound
programme services that were being provided at that time under that licence.
PART
4
RELIGIOUS BODIES ETC.
Approval
required for religious bodies etc. to hold licences
15
(1) A
person mentioned in paragraph 2(1) of Part 2 of Schedule 2 to the
1990 Act (religious bodies etc.) is not to hold a Broadcasting Act licence not
mentioned in paragraph 2(1A) of that Part unless –
(a) OFCOM have made a
determination in his case as respects a description of licences applicable to
that licence; and
(b) that determination
remains in force.
(2) OFCOM
are to make a determination under this paragraph in a person’s case and as
respects a particular description of licence if, and only if, they are
satisfied that it is appropriate for that person to hold a licence of that
description.
(3) OFCOM
are not to make a determination under this paragraph except on an application
made to them for the purpose.
(4) OFCOM
must publish guidance for persons making applications to them under this
paragraph as to the principles that they will apply when determining for the
purposes of sub-paragraph (2) what is appropriate.
(5) OFCOM
must have regard to guidance for the time being in force under sub-paragraph (4)
when making determinations under this paragraph.
(6) OFCOM
may revise any guidance under sub-paragraph (4) by publishing their
revisions of it.
(7) The
publication of guidance under sub-paragraph (4), or of any revisions of
it, is to be in whatever manner OFCOM consider appropriate.
Power to
amend Part 4 of Schedule
[16
The Economic Development
Committee of the States of Jersey may, as respects the Bailiwick of Jersey, by
Order repeal or otherwise modify the restriction
imposed by this Part of this Schedule.]
PART
5
SUPPLEMENTAL PROVISIONS
OF SCHEDULE
Procedure
for orders
17
(1) Before
making an order under any provision of this Schedule (other than one that is
confined to giving effect to recommendations made by OFCOM in a report of a
review under section 391), the Secretary of State must consult OFCOM.
(2) * * * * *
Interpretation
of Schedule
18
(1) Part 1
of Schedule 2 to the 1990 Act applies for construing this Schedule as it
applies for construing Part 2 of that Schedule.
(2) References
in this paragraph to an area overlapping another include references to its
being the same as, or lying wholly inside, the other area.
SCHEDULE
15
Section 360
AMENDMENTS
OF BROADCASTING ACTS
PART
1
AMENDMENTS OF THE 1990
ACT
Licences
under Part 1
1
(1) Section
3 of the 1990 Act[21] (licensing under Part 1) shall be amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1), for “Chapter II, III, IV or V of this Part” there shall be
substituted “Chapter 2 or 5 of this Part or section 235 of the Communications Act 2003”.
(4) For
subsection (8) (saving for telecommunications licences) there shall be
substituted –
“(8) The holding by a person of a licence under
this Part shall not relieve him of –
(a) any liability in
respect of a failure to hold a licence under section 1 of the Wireless Telegraphy Act
1949; or
(b) any obligation to
comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications
services).”
General
licence conditions
2
(1) Section
4 of the 1990 Act[22] (general licence conditions) shall be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), in each of paragraphs (a) and (c), after “this Act” there
shall be inserted “, the Broadcasting
Act 1996 or the Communications
Act 2003”.
(4) In
subsection (3) (fixing of fees), the words from “and the amount” onwards shall
be omitted.
(5) In
subsection (5) (provision of false information to be breach of
condition) –
(a) for “imposed under this
Part” there shall be substituted “contained in the licence”; and
(b) after “and 42” there
shall be inserted “or (as the case may be) sections 237 and 238 of the Communications Act 2003 (enforcement of television licensable content service licences)”.
Restrictions
on licence holding
3
(1) Section
5 of the 1990 Act[23] (restrictions on licence holding) shall be amended as follows.
(2) For
“The Commission” and “the Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2) (incidental requirements to provide information), after
paragraph (d) there shall be inserted –
“(da) impose conditions in a
licence requiring the licence holder, if a body corporate, to give OFCOM
notice, after they have occurred and irrespective of whether proposals for them
have fallen to be notified, of changes, transactions or events affecting –
(i) shareholdings in the body; or
(ii) the directors of the body;
(db) impose conditions in a
licence enabling OFCOM to require the licence holder to provide them with such
information as they may reasonably require for determining –
(i) whether the licence holder is a
disqualified person in relation to that licence by virtue of Part 2 of
Schedule 2; or
(ii) whether any such requirements as are
mentioned in subsection (1)(b) have been and are being complied with by or in
relation to the licence holder;”.
(4) In
subsection (6) –
(a) in paragraph (a),
for “complained of” there shall be substituted “constituting their grounds for
revoking the licence”; and
(b) in paragraph (b)(i),
for “Parts III and IV of Schedule 2” there shall be substituted “the
requirements imposed by or under Schedule 14 to the Communications Act 2003,”.
(5) In
subsection (6A) –
(a) paragraph (a) shall
cease to have effect; and
(b) in paragraph (b),
for “Part IV of that Schedule” there shall be substituted “Part 1 of
Schedule 14 to the Communications Act 2003”.
(6) Subsection
(6B) shall cease to have effect.
(7) In
subsection (7), for the words from “a failure” to the end of paragraph (c)
there shall be substituted “a disqualification under Part 2 of Schedule 2
to this Act or a contravention of a requirement imposed by or under Schedule 14
to the Communications Act 2003”.
Repeal
of previous regulatory regime
4
Sections 6 to 12 of the
1990 Act[24] (which contain the mechanism for regulation in relation to licences
under Part 1 of that Act) shall cease to have effect.
Prohibition
on providing television services without a licence
5
(1) Section
13 of the 1990 Act[25] (prohibition on providing television services without a licence)
shall be amended as follows.
(2) In
subsection (1) (offence of providing such service without a licence), for
“service falling within section 2(1)(a), (aa), (b), (c), (cc) or (d)” there
shall be substituted “relevant regulated television service”.
(3) After
that subsection there shall be inserted –
“(1A) In subsection (1) “relevant regulated
television service” means a service falling, in pursuance of section 211(1) of
the Communications Act 2003,
to be regulated by OFCOM, other than a television multiplex service.”
(4) In
subsection (2) (exemption orders made after consulting the ITC), for “the
Commission” there shall be substituted “OFCOM”.
Television
broadcasting on Channel 3
6
In section 14 of the
1990 Act[26] (establishment of Channel 3), for “The Commission” and “the
Commission”, wherever occurring, there shall be substituted “OFCOM”.
Applications
for Channel 3 licences
7
(1) Section 15
of the 1990 Act[27] (applications for Channel 3 licences) shall be amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2), for “specified in section 16(2) or (3) (as the case may be)”
there shall be substituted “that have to be imposed under Chapter 4 of Part 3
of the Communications Act 2003
by conditions relating to –
(a) the public service remit
for that service,
(b) programming quotas,
(c) news and current affairs
programmes, and
(d) programme production and
regional programming.”
(4) In
subsection (3) –
(a) in paragraph (b),
for “specified in section 16(2) or (3) (as the case may be)” there shall be
substituted “that have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to –
(i) the public service remit for that service,
(ii) programming quotas,
(iii) news and current affairs
programmes, and
(iv) programme production and
regional programming”;
(b) paragraphs (c) to
(e) shall be omitted.
(5) After
subsection (3) there shall be inserted –
“(3A) For the purposes of subsection
(1)(d)(ii) –
(a) different percentages
may be specified for different accounting periods; and
(b) the percentages that
may be specified for an accounting period include a nil percentage.”
(6) In
subsection (4), for “paragraphs (b) to (e)” there shall be substituted
“paragraphs (b)”.
Procedure
on consideration of applications for Channel 3 licences
8
(1) Section
16 of the 1990 Act[28] (consideration of applications for Channel 3 licences) shall
be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), for “specified in subsection (2) or (3) below (as the case may
be)” there shall be substituted “that have to be imposed under Chapter 4 of
Part 3 of the Communications
Act 2003 by conditions relating to –
(i) the public service remit for that service,
(ii) programming quotas,
(iii) news and current affairs
programmes, and
(iv) programme production and
regional programming”.
(4) Subsections
(2) and (3) of that section shall cease to have effect.
(5) In
subsection (4) of that section –
(a) for “specified in
subsection (2) or (3) (as the case may be),” there shall be substituted “that
have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to –
(a) the public service remit
for that service,
(b) programming quotas,
(c) news and current affairs
programmes, and
(d) programme production and
regional programming,”;
(b) the words from “and in
applying” onwards shall be omitted.
(6) Subsections
(5) to (8) shall cease to have effect.
Television
broadcasting on Channel 3
9
(1) Section 17
of the 1990 Act[29] (award of licences to person submitting highest bid) shall be
amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (12)(b), for “specified in section 16(2) or (3) (as the case may
be)” there shall be substituted “that have to be imposed under Chapter 4 of
Part 3 of the Communications
Act 2003 by conditions relating to –
(i) the public service remit for that service,
(ii) programming quotas,
(iii) news and current affairs
programmes, and
(iv) programme production and
regional programming”.
Financial
conditions of licence and failures to begin a service
10
In sections 17A to 19 of
the 1990 Act[30] (financial conditions in Channel 3 licences and failures to
begin a service), for “The Commission” and “the Commission”, wherever
occurring, there shall be substituted “OFCOM”.
Changes
of control in period after award of licence
11
(1) Section
21 of the 1990 Act[31] (changes of control in period immediately after award of licence)
shall be amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2), in the definition of “associated programme provider”, for the
words from “appears” to “inclusion” there shall be substituted “is or is likely
to be involved, to a substantial extent, in the provision of the programmes
included”.
Temporary
provision of Channel 3 service for an additional area
12
In section 22 of the
1990 Act[32] (temporary provision of regional Channel 3 Service for additional
area), for “the Commission”, wherever occurring, there shall be substituted
“OFCOM”.
Appointment
of members of C4 Corporation
13
In section 23 of the
1990 Act[33] (appointment of C4C members), for “the Commission”, wherever
occurring, there shall be substituted “OFCOM”.
Channel
4 licence
14
In section 24(3) of the
1990 Act[34] (Channel 4 licence), for “the Commission” there shall be substituted
“OFCOM”.
Channel
5
15
In section 28 of the
1990 Act[35] (Channel 5), for “The Commission” and “the Commission”, wherever
occurring, there shall be substituted “OFCOM”.
Application
to Channel 5 of Channel 3 provisions
16
(1) In
section 29 of the 1990 Act[36] (application to Channel 5 of Channel 3 provisions) –
(a) subsection (2)(b) and the
word “and” immediately preceding it, and
(b) subsection (3),
shall cease to have
effect.
(2) In
subsection (2)(a) of that section, for “the Commission” there shall be
substituted “OFCOM”.
Announcement
of programme Schedules
17
In section 37(1) of
the 1990 Act[37] (conditions requiring announcement of programme Schedules), for
“the Commission” there shall be substituted “OFCOM”.
Enforcement
of conditions of Channel 3, Channel 4 and Channel 5 licences
18
(1) In
sections 40 to 42 of the 1990 Act[38] (enforcement of licences), for “the Commission” and “The
Commission”, wherever occurring, there shall be substituted “OFCOM”.
(2) In
sections 41(1) and 42(1)(a) of that Act[39] (which contain provisions relating to the enforcement of directions
under Part 1 of that Act), after “this Part”, in each place, there shall
be inserted “, Part 5 of the Broadcasting Act 1996 or Part 3
of the Communications Act 2003”.
Restricted
services
19
In section 42B(1) of the
1990 Act[40] (licensing of restricted services), for “the Commission”, wherever
occurring, there shall be substituted “OFCOM”.
Additional
television services
20
(1) Section
48 of the 1990 Act[41] (additional services) shall be further amended as follows.
(2) In
subsection (1) –
(a) for “telecommunication”
there shall be substituted “electronic”; and
(b) for paragraphs (a)
and (b) there shall be substituted “on a relevant frequency”.
(3) In
subsection (2), for paragraphs (a) and (b) there shall be substituted “any
part of the signals which –
(a) is not required for the
purposes of the television broadcasting service for the purposes of which the
frequency has been made available; and
(b) is determined by OFCOM to
be available for the provision of additional services;”.
(4) After
that subsection there shall be inserted –
“(2A) For the purposes of this Part, if they consider
it appropriate to do so, OFCOM may, while an additional services licence is in
force, from time to time modify the determination made under subsection (2)(b)
for the purposes of that licence in any manner that does not reduce the amount
of spare capacity made available for the licensed services; and when so
modified any such licence shall have effect accordingly.”
(5) In
subsection (3) –
(a) for “The Commission”
there shall be substituted “OFCOM”; and
(b) for “(2)(a)” there shall
be substituted “(2)(b)”; and
(c) for paragraphs (a)
to (c) there shall be substituted –
“(a) to the obligations
contained in any code under section 303 of the Communications Act 2003 by virtue of subsection (5) of that section; and
(aa) to any need of the
person providing the television broadcasting service in question to be able to
use part of the signals carrying it for providing services (in addition to
those provided for satisfying those obligations) which –
(i) are ancillary to programmes included in
the service and directly related to their contents; or
(ii) relate to the promotion or listing of such
programmes.”
(6) In
subsection (4), for paragraphs (a) and (b) there shall be
substituted –
“(a) to provide services for
the satisfaction in his case of obligations mentioned in subsection (3)(a); and
(b) to provide in relation
to his television broadcasting service any such services as are mentioned in
subsection (3)(aa).”
(7) For
subsection (6) there shall be substituted –
‘electronic signals’ means signals within the meaning of section 32
of the Communications Act 2003;
‘relevant frequency’ means a frequency made available by OFCOM for
the purposes of a television broadcasting service.”
(8) * * * * *
Licensing
of additional television services
21
(1) Section
49 of the 1990 Act[42] (licensing of additional television services) shall be amended as
follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), for the words from “of the following” to “48(1)(b)” there shall
be substituted “relevant frequency”.
(4) For
subsections (2) and (3) there shall be substituted –
“(1A) An additional services licence is not required
for an additional service that is comprised in the public teletext service
(within the meaning of Part 3 of the Communications Act 2003).”
(5) In
subsection (10), at the end there shall be inserted “and ‘relevant
frequency’ has the same meaning as in section 48.”
Applications
for additional services licences
22
(1) Section
50 of the 1990 Act[43] (applications for additional services licences) shall be amended as
follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1)(b)(ii), the words “(subject to the approval of the Secretary of
State)” shall be omitted.
(4) Subsection
(7) shall cease to have effect.
Procedure
on application etc. for additional television services licences
23
(1) Section
51 of the 1990 Act[44] (consideration of applications for licences for additional
television services) shall be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), for paragraph (a) (requirement of approval of technical
plans) there shall be substituted –
“(a) that the technical plan
submitted under section 50(3)(b), in so far as it involves the use of an
electronic communications network (within the meaning of the Communications Act 2003), contains proposals that are acceptable to them; and”.
(4) Subsections
(2) and (7) shall cease to have effect.
Additional
payments in respect of additional television services licences
24
In section 52 of the 1990
Act[45] (additional payments in respect of additional television services
licences), for “the Commission”, wherever occurring, there shall be substituted
“OFCOM”.
Duration
of additional television services licences
25
(1) Section
53 of the 1990 Act[46] (duration and renewal of additional television services licences)
shall be amended as follows.
(2) In
subsection (1), for the words before paragraph (a) there shall be
substituted –
“(1) A licence to provide additional services on
a frequency which is a relevant frequency for the purposes of section 48 or (in
the case of a licence granted before the television transfer date) was assigned
under section 65- “.
(3) In
subsection (2), after “not later than” there shall be inserted “the day falling
three months before”.
(4) In
subsections (4) to (11), for “the Commission”, wherever occurring, there shall
be substituted “OFCOM”.
(5) In
subsection (8), for the words from “payable” onwards there shall be substituted
“the cash bid of the licence holder were the licence (instead of being renewed)
to be granted for the period of the renewal on an application made in
accordance with section 50(3).”
(6) After
that subsection there shall be inserted –
“(8A) For the purposes of subsection (7)(b) –
(a) different percentages
may be specified for different accounting periods; and
(b) the percentages that
may be specified for an accounting period include a nil percentage.”
(7) After
subsection (11) there shall be inserted –
“(12) A determination for the purposes of subsection
(11) –
(a) must be made at least
one year before the date determined; and
(b) must be notified by
OFCOM to the person who holds the licence in question.
(13) In this section ‘the television transfer
date’ has the same meaning as in the Communications Act 2003.”
Additional
television services not to interfere with other transmissions
26
(1) Section
54 of the 1990 Act[47] (additional television services not to interfere with other
transmissions) shall be amended as follows.
(2) In
subsection (1), for “the Commission” there shall be substituted “OFCOM”.
(3) Subsection
(2) shall cease to have effect.
Enforcement
of additional television services licences
27
(1) Section
55 of the 1990 Act[48] (further provision in relation to additional television services
licences) shall be amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (4) at the end there shall be inserted “and, in the case of a
licence renewed under section 53 as if the reference in section 42(4) to the
end of the period for which the licence is to continue in force were a
reference to the end of the period for which it has been renewed.”
The
Welsh Authority
* *
*
*
*
*
*
Distribution
of licensed public service channels
29
(1) Section
66 of the 1990 Act[49] (requirements relating to transmission and distribution of
services) shall be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsections (1) and (2), for “for general reception” there shall be substituted
“so as to be available for reception by members of the public”.
(4) After
subsection (2) there shall be inserted –
“(2A) In subsections (1) and (2) ‘available for
reception by members of the public’ shall be construed in accordance with
section 361 of the Communications
Act 2003”.
Enforcement
of licences held by BBC companies
30
In section 66A of the
1990 Act[50] (enforcement of licences held by BBC companies), for “the
Commission”, wherever occurring, there shall be substituted “OFCOM”.
Interpretation
of Part 1
31
(1) Section
71 of the 1990 Act[51] (interpretation) shall be amended as follows.
(2) * * * * *
(3) For
the definitions of “television broadcasting service” and “television programme
service” there shall be substituted –
“ ‘television broadcasting service’, ‘television licensable content
service’ and ‘television programme service’ each has the same meaning as in
Part 3 of the Communications Act
2003;”.
Licensing
functions of OFCOM
32
(1) Section
85 of the 1990 Act[52] (licensing of independent radio services) shall be amended as
follows.
(2) In
subsections (1) and (2), for “the Authority” and “The Authority”, wherever
occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), for “such licences to provide independent radio services as
they may determine” there shall be substituted “licences to provide relevant
independent radio services”.
(4) [Subsection (3)]
(duty to secure the meeting of a variety of tastes and interests and to ensure
fair and effective competition) shall cease to have effect.
(5) After
subsection [(6)] there shall be inserted –
“(8) In this section ‘relevant independent radio
services’ means the following services so far as they are services falling to
be regulated under section 245 of the Communications Act 2003 –
(a) sound broadcasting
services;
(b) radio licensable
content services;
(c) additional radio
services.”
Licences
under Part 3 of the 1990 Act
33
(1) Section
86 of the 1990 Act[53] (licences under Part 3) shall be amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) For
subsection (9) of that section there shall be substituted –
“(9) The holding of a licence by a person shall
not relieve him of –
(a) any liability in
respect of a failure to hold a licence under section 1 of the Wireless Telegraphy Act
1949; or
(b) any obligation to
comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications
services).”
General
licence conditions
34
(1) Section
87 of the 1990 Act[54] (general licence conditions)shall be amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), in each of paragraphs (a) and (d), after “this Act”
there shall be inserted “, the Broadcasting
Act 1996 or the Communications
Act 2003”.
(4) In
subsection (2), sub-paragraph (ii) of paragraph (b) and the word
“or” immediately preceding it shall be omitted.
(5) In
subsection (3) (fixing of fees), the words from “and the amount” onwards
shall be omitted.
Restrictions
on holding licences
35
(1) Section
88 of the 1990 Act[55] (restrictions on the holding of licences) shall be amended as
follows.
(2) For
“The Authority” and “the Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2) (incidental requirements to provide information), after paragraph (d)
there shall be inserted –
“(da) impose conditions in a
licence requiring the licence holder, if a body corporate, to give OFCOM
notice, after they have occurred and irrespective of whether proposals for them
have fallen to be notified, of changes, transactions or events affecting –
(i) shareholdings in the body; or
(ii) the directors of the body;
(db) impose conditions in a
licence enabling OFCOM to require the licence holder to provide them with such
information as they may reasonably require for determining –
(i) whether the licence holder is a
disqualified person in relation to that licence by virtue of Part 2 of
Schedule 2; or
(ii) whether any such requirements as are
mentioned in subsection (1)(b) have been and are being complied with by or in
relation to the licence holder;”.
(4) In
subsection (6) –
(a) in paragraph (a),
for “complained of” there shall be substituted “constituting their grounds for
revoking the licence”; and
(b) in paragraph (b)(i),
for “Parts III and IV of Schedule 2” there shall be substituted “the
requirements imposed by or under Schedule 14 to the Communications Act 2003”.
(5) In
subsection (6A) –
(a) paragraph (a) shall
cease to have effect; and
(b) in paragraph (b),
for “Part IV of that Schedule” there shall be substituted “Part 1 of
Schedule 14 to the Communications Act 2003”.
(6) Subsection
(6B) shall cease to have effect.
(7) In
subsection (7), for the words from “a failure” to the end of paragraph (c)
there shall be substituted “a disqualification under Part 2 of Schedule 2
to this Act or a contravention of a requirement imposed by or under Schedule 14
to the Communications Act 2003,”.
Disqualification
of persons convicted of transmission offences
36
(1) Section
89 of the 1990 Act[56] (offences giving rise to disqualification) shall be amended as
follows.
(2) In
subsection (1), for paragraph (a) there shall be substituted –
“(a) an offence under
section 1(1) of the Wireless Telegraphy Act 1949 (‘the
1949 Act’) consisting in the establishment or use of a station for wireless telegraphy,
or the installation or use of wireless telegraphy apparatus, for the purpose of
making a broadcast (within the meaning of section 9 of the Marine, &c.,
Broadcasting (Offences) Act 1967);
(aa) an offence under
section 1A of the 1949 Act (keeping wireless telegraphy station or
apparatus available for unauthorised use) where the relevant contravention of
section 1 would constitute an offence falling within paragraph (a);
(ab) an offence under
section 1B or 1C of the 1949 Act (unlawful broadcasting offences);”.
(3) In
subsection (3), for the words from “concerned” onwards there shall be
substituted “concerned in –
(a) the provision of the
licensed service or the making of programmes included in it; or
(b) the operation of a
station for wireless telegraphy used for broadcasting the service.”
(4) This
paragraph does not impose a disqualification in respect of any offence
committed before the commencement of this paragraph.
Offence
of providing regulated radio services
37
(1) Section
97 of the 1990 Act[57] (prohibition on providing services without a licence) shall be
amended as follows.
(2) In
subsection (1), for the words from “independent” to “84(1)(d), (e) or (f)”
there shall be substituted “relevant regulated radio service”.
(3) After
that subsection there shall be inserted –
“(1A) In subsection (1) ‘relevant regulated radio
service’ means a service falling to be regulated by OFCOM under section 245 of
the Communications Act 2003,
other than a radio multiplex service.”
(4) In
subsection (2) (exemption orders made after consulting the Radio Authority),
for “the Authority” there shall be substituted “OFCOM”.
Applications
for national licences
38
(1) Section
98 of the 1990 Act[58] (applications for national licences) shall be amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (3)(a) (proposals to accompany application) –
(a) the word “both”, and
(b) sub-paragraph (ii)
and the word “and” immediately preceding it,
shall be omitted.
(4) After
subsection (3) there shall be inserted –
“(3A) For the purposes of subsection
(1)(d)(ii) –
(a) different percentages
may be specified for different accounting periods; and
(b) the percentages that
may be specified for an accounting period include a nil percentage.”
(5) In
subsection (4) (provision of further information), after “paragraphs (a),”
there shall be inserted “(aa),”.
(6) In
subsection (6)(b) (publication of details of successful applicant), after
“subsection (3)(a)” there shall be inserted “and (aa)”.
Consideration
of applications for a national licence
39
(1) Section 99
of the 1990 Act[59] (consideration of applications for national licence) shall be
amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
paragraph (a) of subsection (1) (proposals to accompany
application) –
(a) the word “both”, and
(b) sub-paragraph (ii)
and the word “and” immediately preceding it,
shall be omitted.
(4) In
paragraph (b) of that subsection, after “maintain that service” there
shall be inserted “and any proposed simulcast radio service corresponding to
that service”.
Award of
national licences
40
In section 100 of the
1990 Act[60] (award of national licences to person submitting highest cash bid),
for “the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
Failure
to begin providing licensed service
41
(1) Section
101 of the 1990 Act[61] (failure to begin providing licensed service) shall be amended as
follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1) –
(a) in paragraph (a) for
“the service in question” there shall be substituted “the licensed national
service or that he does not intend to provide a corresponding simulcast radio
service that he is required to provide by a condition imposed under section
100A”; and
(b) in paragraph (b),
for “that service” there shall be substituted “the licensed national service or
any such simulcast radio service”.
(4) In
subsection (2), for “the service in question” there shall be substituted “the
licensed national service or the simulcast radio service”.
Additional
payments in respect of national licences
42
In section 102 of
the 1990 Act[62] (additional payments in respect of national licences), for “the
Authority”, wherever occurring, there shall be substituted “OFCOM”.
Restrictions
affecting change in control of holder of national licence
43
(1) Section
103 of the 1990 Act[63] (restrictions on change of control of national licence) shall be
amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2) (interpretation) –
(a) in the definition of
“associated programme provider”, for the words from “appears” to “inclusion”
there shall be substituted “is or is likely to be involved, to a substantial
extent, in the provision of the programmes included”; and
(b) in the words after the
definition of “the relevant period”, for the words from “as if” onwards there
shall be substituted “as it has effect for the purposes of that Schedule.”
Renewal
of national licences
44
(1) Section
103A of the 1990 Act[64] (renewal of national licences) shall be amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), for “eight” there shall be substituted “twelve”.
(4) In
subsection (2), after “not later than” there shall be inserted “the day falling
three months before”.
(5) In
subsection (3), paragraph (a) and in paragraph (b) the words “in any
other case” shall cease to have effect.
(6) In
subsection (4), for paragraph (b) there shall be substituted –
“(b) the applicant gave
notice to OFCOM, within the period of one month beginning with the commencement
of section 42 of the Broadcasting Act 1996, of his
intention to provide a simulcast radio service, and”.
(7) For
subsection (7) there shall be substituted –
“(7) The amount determined under subsection
(6)(b) must be equal to the amount which, in OFCOM’s opinion, would have been
the cash bid of the licence holder were the licence (instead of being renewed)
to be granted for the period of the renewal on an application made in
accordance with section 98.
(7A) For the purposes of subsection (6)(c) –
(a) different percentages
may be specified for different accounting periods; and
(b) the percentages that
may be specified for an accounting period include a nil percentage.”
(8) After
subsection (10) there shall be inserted –
“(10A) In the case of a
pre-transfer national licence (including one for a period extended under
section 253 of the Communications
Act 2003) –
(a) the licence is not to
be capable of being renewed under this section if it has already been renewed
under this section before the radio transfer date; and
(b) on the renewal of the
licence, it shall be the duty of OFCOM to secure that the renewed licence
contains only such provision as would be included in a national licence granted
by OFCOM under this Part after the radio transfer date.”
(9) After
subsection (11) there shall be inserted –
“(12) A determination for the purposes of subsection
(11) –
(a) must be made at least
one year before the date determined; and
(b) must be notified by
OFCOM to the person who holds the licence in question.”
Applications
for local licences
45
(1) Section
104 of the 1990 Act[65] (application for local licences) shall be amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (6), for the words from the beginning to “shall be made” there shall
be substituted “An application for a licence to provide a restricted service
shall be made”.
Renewal of
local licences
46
(1) Section
104A of the 1990 Act[66] (renewal of local licences) shall be amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1), for “eight” there shall be substituted “twelve”.
(4) In
subsection (3), after “not later than” there shall be inserted “the day falling
three months before”.
(5) After
subsection (12) there shall be inserted –
“(12A) In the case of a
pre-transfer local licence (including one for a period extended under section
253 of the Communications
Act 2003) –
(a) the licence is not to
be capable of being renewed under this section if it has already been renewed
under this section before the radio transfer date; and
(b) on the renewal of the
licence, it shall be the duty of OFCOM to secure that the renewed licence
contains only such provision as would be included in a local licence granted by
OFCOM under this Part after the radio transfer date.”
(6) In
subsection (13)(d), for “paragraph 3A of Part I of Schedule 2” there shall
be substituted “paragraph 8(2) of Schedule 14 to the Communications Act 2003”.
(7) After
subsection (13) there shall be inserted –
“(14) A determination for the purposes of subsection
(13)(c) –
(a) must be made at least
one year before the date determined; and
(b) must be notified by
OFCOM to the person who holds the licence in question.”
Special
procedure for applications for local licences
47
(1) Section
104B of the 1990 Act[67] (special procedure for applications for local licences) shall be
amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) After
subsection (1) there shall be inserted –
“(1A) In subsection (1)(c) the reference to the
service in question, in relation to a case in which it is a pre-transfer local
licence that is due to expire, is a reference to the equivalent local service
for which a licence is capable of being granted at times on or after the radio
transfer date.”
Special
requirements relating to grant of local licences
48
(1) Section
105 of the 1990 Act[68] (special requirements relating to grant of local licences) shall be
amended as follows.
(2) For
“the Authority” there shall be substituted “OFCOM”.
(3) For
paragraph (d) (duty to have regard to the extent to which proposed service
supported by persons living in the area) there shall be substituted –
“(d) the extent to which
there is evidence that, amongst persons living in that area or locality, there
is a demand for, or support for, the provision of the proposed service.”
Requirements
as to character and coverage of services
49
In subsections (1) to (4)
and (6) of section 106 of the 1990 Act[69] (requirements as to character and coverage of services), for “the
Authority”, wherever occurring, there shall be substituted “OFCOM”.
Enforcement
of licences
50
In sections 109 to 111A
of the 1990 Act[70] (enforcement of licences), for “the Authority” and “The Authority”,
wherever occurring, there shall be substituted “OFCOM”.
Power to
suspend licences to provide radio licensable content services from a satellite
51
(1) Section
111B of the 1990 Act[71] (power to suspend licence to provide satellite service) shall be
amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1) –
(a) in paragraph (a),
for “satellite service” there shall be substituted “radio licensable content
service”;
(b) in paragraph (b),
for the words from “included in the licence” to the end of the paragraph there
shall be substituted “which in compliance with section 263 of the Communications Act 2003 is included in the licence for the purpose of securing the
objective mentioned in section 319(2)(b) of that Act, and”.
Additional
radio services
52
(1) Section
114 of the 1990 Act[72] (additional radio services) shall be amended as follows.
(2) In
subsection (1) –
(a) for “telecommunication”
there shall be substituted “electronic”; and
(b) for paragraphs (a)
and (b) there shall be substituted “on a relevant frequency”.
(3) In
subsection (2), for paragraphs (a) and (b) there shall be substituted “any
part of the signals which –
(a) is not required for the
purposes of the sound broadcasting service for the purposes of which the
frequency has been made available; and
(b) is determined by OFCOM to
be available for the provision of additional services;”.
(4) After
that subsection there shall be inserted –
“(2A) At any time while an additional services
licence is in force, OFCOM may, if they consider it appropriate to do so,
modify or further modify the determination made for the purposes of that
licence under subsection (2)(b); and where there has been such a modification
or further modification, the licence shall have effect accordingly.
(2B) A modification or further modification under
subsection (2A) must not reduce the amount of spare capacity made available for
the licensed services.”
(5) In
subsection (3), for the words from the beginning to “subsection (2)(a)” there
shall be substituted “OFCOM shall, when determining under subsection (2)”.
(6) For
subsection (6) there shall be substituted –
“(6) In this section ‘electronic signal’ means a signal
within the meaning of section 32 of the Communications Act 2003.
(7) In this section and section 115 ‘relevant
frequency’ means a frequency made available by OFCOM for the purposes of a
sound broadcasting service.”
(7) This
paragraph does not affect the validity of a licence granted or last renewed
before the radio transfer date, or the services licensed by any such licence.
Licensing
of additional radio services
53
(1) Section
115 of the 1990 Act[73] (licensing of additional radio services) shall be amended as
follows.
(2) For
“The Authority” and “the Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1), for the words from “of the following” to “114(1)(b)” there shall
be substituted “relevant frequency”.
(4) In
subsection (4), at the end there shall be inserted “and who would not be in
contravention of the requirements imposed by or under Schedule 14 to the Communications Act 2003 if he held
such a licence”.
(5) In
subsection (8), for “local, restricted or satellite service” there shall be
substituted “local or restricted service or to provide a radio licensable
content service”.
Applications
for additional radio services licences
54
(1) Section
116 of the 1990 Act[74] (applications for additional radio services licences) shall be
amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1)(b)(iii), the words “(subject to the approval of the
Secretary of State)” shall be omitted.
Procedure
for awarding additional radio services licences
55
(1) Section
117 of the 1990 Act[75] (procedure for awarding additional radio services licences) shall
be amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), for paragraph (a) (requirement of approval of technical
plans) there shall be substituted –
“(a) that the technical plan
submitted under section 116(3)(b), in so far as it involves the use of an
electronic communications network (within the meaning of the Communications Act 2003), contains proposals that are acceptable to them; and”.
(4) Subsections
(2) and (7) shall cease to have effect.
Additional
payments in respect of additional radio services licences
56
In section 118 of the
1990 Act[76] (additional payments in respect of additional radio services
licences), for “the Authority”, wherever occurring, there shall be substituted
“OFCOM”.
Additional
radio services not to interfere with other transmissions
57
(1) Section
119 of the 1990 Act[77] (additional radio services not to interfere with other
transmissions) shall be amended as follows.
(2) In
subsection (1), for “the Authority” there shall be substituted “OFCOM”.
(3) Subsection
(2) shall cease to have effect.
Enforcement
of additional radio services licences
58
In section 120 of
the 1990 Act[78] (enforcement of additional radio services licences), for “the
Authority” and “The Authority”, wherever occurring, there shall be substituted
“OFCOM”.
Interpretation
59
In subsection (1) of
section 126 of the 1990 Act[79] (interpretation of Part 3) –
(a) for
the definition of “independent radio service” there shall be substituted –
“ ‘independent radio service’ means a service falling to be
regulated under section 245 of the Communications
Act 2003;”;
(b) for
the definitions of “local service”, “national service”, “restricted service”
and “satellite service” there shall be substituted –
“ ‘local service’, ‘national service’ and ‘restricted service’ each
has the same meaning as in section 245 of the Communications Act 2003;
‘pre-transfer local licence’ and ‘pre-transfer national licence’
each has the same meaning as in section 253 of that Act;
‘radio licensable content service’ has the same meaning as in Part 3
of that Act;
‘radio transfer date’ has the same meaning as in that Act;”;
(c) in
the definition of “sound broadcasting service” for the words from “(as defined”
to the end there shall be substituted “(within the meaning of Part 3 of
the Communications Act 2003);”.
Duty to
provide advance information about programmes
60
In column 1 of the Table
in section 176(7) of the 1990 Act[80] (persons who are the providers of services for the purposes of the
obligations to give advance information about programmes) –
(a) for
“regulation by the Independent Television Commission” there shall be
substituted “regulation by OFCOM”;
(b) * * * * *
(c) for
“section 84(2)(a)(i)” there shall be substituted “section 126(1)”;
(d) for
“the Radio Authority”, in both places, there shall be substituted “OFCOM”.
Proscription
of foreign satellite services
61
(1) Section
177 of the 1990 Act[81] (proscription of foreign satellite stations) shall be amended as
follows.
(2) In
subsection (2), for “the Independent Television Commission or the Radio
Authority consider that the quality of any relevant” there shall be substituted
“OFCOM consider that the quality of any”.
(3) In
subsection (3), for the words from the beginning to “Authority” there shall be
substituted “OFCOM”.
(4) In
subsection (6), the definition of “relevant foreign satellite service” shall be
omitted.
Financing
of Gaelic Broadcasting
* *
*
*
*
*
*
Gaelic
Broadcasting in Scotland
* *
*
*
*
*
*
Maintenance
of the national television archive
64
(1) In
section 185 of the 1990 Act[82] (maintenance of the national television archive) –
(a) for “The Commission” and
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(b) in subsection (5), the
definition of “the Commission” shall be omitted.
(2) This
paragraph so far as it relates to subsection (1) of that section has effect in
relation only to financial years beginning after the television transfer date.
Modification
of networking arrangements
65
(1) Section
193 of the 1990 Act[83] (modification of networking arrangements in consequence of
competition legislation) shall be amended as follows.
(2) In
subsection (1), for the words from “the Office of Fair Trading” to “relevant
authority’)” there shall be substituted “the relevant authority”.
(3) After
subsection (2) there shall be inserted –
“(2A) In subsection (1), ‘relevant authority’
means –
(a) in relation to a
relevant order falling within subsection (2)(a), the Office of Fair
Trading, the Competition Commission or (as the case may be) the Secretary of
State;
(b) in relation to a
relevant order falling within subsection (2)(b), the Office of Fair
Trading, the Competition Commission, the Secretary of State or (as the case may
be) OFCOM.”
(4) In
subsection (4), for “section 39(1) above” there shall be substituted “section
290(4) of the Communications Act
2003”.
Search
warrants
66
(1) Section
196 of the 1990 Act[84] (grant of search warrant to person authorised by the Independent
Television Commission or the Radio Authority) shall be amended as follows.
(2) In
subsection (1), for “the relevant authority” there shall be substituted
“OFCOM”.
[(3) In subsection (2) (definition of “relevant authority”), omit
all the words after “police force.”]
Notices
67
In section 199(5) of the
1990 Act[85] (publication of notices), for paragraphs (a) and (b) there
shall be substituted “by OFCOM under section 21, 41, 42, 55, 103, 109, 110, 111
or 120”.
Interpretation
68
(1) Section
202 of the 1990 Act[86] (general interpretation) shall be amended as follows.
(2) In
subsection (1), after the definition of “modifications” there shall be
inserted –
“ ‘OFCOM’ means the Office of Communications;”.
(3) After
subsection (6) there shall be inserted –
“(6A) Subsections (2) and (3) of section 362 of the Communications Act 2003
(persons by whom services provided) are to apply for the purposes of this Act
as they apply for the purposes of Part 3 of that Act.”
Disqualified
persons
69
(1) Schedule 2
to the 1990 Act[87] (restrictions on the holding of licences) shall be amended as
follows.
(2) In
paragraph 1(1) of Part 1, after the definition of “associate” there shall
be inserted –
“ ‘Broadcasting Act licence’ means a licence under Part 1 or 3
of this Act or Part 1 or 2 of the Broadcasting Act 1996;”.
(3) In
paragraph 1(6) of Part 1 (meaning of “more than a
20 per cent. interest”), for “20 per cent.”, wherever
occurring, there shall be substituted “5 per cent.”.
(4) In
Part 2 (disqualified persons), for “a licence granted by the Commission or
the Authority”, wherever occurring, there shall be substituted “a Broadcasting
Act licence”.
(5) In
paragraph 1(1)(i) of Part 2 (bodies controlled by persons falling
within paragraphs (a) to (g)), for “(a)” there shall be substituted “(c)”.
(6) In
paragraph 3(1) of Part 2, for “by the Authority” there shall be
substituted “under Part 3 of this Act or Part 2 of the Broadcasting Act 1996”.
(7) In
paragraph 4(1) of Part 2, for “that body” there shall be substituted
“OFCOM”.
(8) In
paragraph 4(2) of Part 2 –
(a) in paragraph (a), for
“by the Commission, means a body” there shall be substituted “under Part 1
of this Act or Part 1 of the Broadcasting Act 1996, means a person”; and
(b) in paragraph (b),
for “by the Authority, means a body” there shall be substituted “under Part 3
of this Act or Part 2 of the Broadcasting Act 1996, means a person”.
(9) In
paragraph 5A of Part 2 –
(a) in sub-paragraph (1)(a),
the words “granted by the Commission”,
(b) sub-paragraph (1)(b)
and the word “and” immediately preceding it,
(c) in sub-paragraph (2),
the words “granted by the Authority”,
shall be omitted.
C4C
70
(1) Schedule 3
to the 1990 Act[88] (provision about constitution and management of C4C) shall be
amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
paragraph 2(1) (persons disqualified from membership of the Corporation),
for paragraphs (b) to (d) there shall be substituted “or
(b) a member or employee of
OFCOM.”
The
Welsh Authority
* *
*
*
*
*
*
Computation
of qualifying revenue
72
(1) Schedule 7
to the 1990 Act[89] (computation of “qualifying revenue”) shall be amended as follows.
(2) In
Part 1, for “the Commission” and “The Commission”, wherever occurring,
there shall be substituted “OFCOM”.
(3) In
Part 2, for “the Authority” and “The Authority”, wherever occurring, there
shall be substituted “OFCOM”.
The
Gaelic Television Committee
* *
*
*
*
*
*
PART
2
AMENDMENTS OF THE 1996
ACT
Multiplex
services and digital programme services
74
(1) Section
1 of the 1996 Act (interpretation) shall be amended as follows.
(2) For
subsection (1) there shall be substituted –
“(1) In this Part ‘multiplex service’ means
(except where the context otherwise requires) a television multiplex service.”
(3) In
subsection (4), for “for general reception” there shall be substituted “so as
to be available for reception by members of the public”.
(4) [After
subsection (4) there shall be inserted] –
“(4A) In subsection (4), ‘available for reception by
members of the public’ means available for reception by members of the public
(within the meaning of Part 3 of the Communications Act 2003) in the
United Kingdom or another EEA State [or the Bailiwick of Jersey], or in an area
of the United Kingdom or of such a State [or the Bailiwick of Jersey].”
(5) For
subsection (7) of that section there shall be substituted –
“(7) In this section ‘broadcast’ means broadcast
otherwise than from a satellite.”
Meaning
of qualifying service
75
In section 2 of the 1996
Act (meaning of “qualifying service” etc.), for subsections (2) to (6) there
shall be substituted –
“(2) In this Part ‘qualifying service’ means any
of the following, so far as they are provided with a view to their being
broadcast in digital form –
(a) a television
broadcasting service included in Channel 3;
(b) Channel 4;
(c) Channel 5;
(d) * * * * *
(e) * * * * *
(f) the digital public
teletext service.”
Licences
under Part 1
76
(1) Section
3 of the 1996 Act (licences under Part 1 of that Act) shall be amended as
follows.
(2) In
subsection (1), for “the Independent Television Commission (in this Part
referred to as the ‘the Commission’)” there shall be substituted “OFCOM”.
(3) In
subsections (3) to (7), for “The Commission” and “the Commission”, wherever
occurring, there shall be substituted “OFCOM”.
(4) For
subsection (8) there shall be substituted –
“(8) The holding by a person of a licence under
this Part shall not relieve him of –
(a) any liability in
respect of a failure to hold a licence under section 1 of the Wireless Telegraphy Act
1949; or
(b) any obligation to
comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications
services).”
Licence
conditions
77
(1) Section
4 of the 1996 Act (general licence conditions) shall be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1), in each of paragraphs (a) and (c), for “the 1990 Act or
this Act” there shall be substituted “this Act, the 1990 Act or the Communications Act 2003”.
(4) In
subsection (3) (fixing fees), the words from “and the amount” onwards shall be
omitted.
Restrictions
on digital licence holding
78
(1) Section
5 of the 1996 Act (restrictions on holding licences) shall be amended as
follows.
(2) For
“The Commission” and “the Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2) (incidental requirements to provide information), after
paragraph (d) there shall be inserted –
“(da) impose conditions in a
licence requiring the licence holder, if a body corporate, to give OFCOM
notice, after they have occurred and irrespective of whether proposals for them
have fallen to be notified, of changes, transactions or events affecting –
(i) shareholdings in the body; or
(ii) the directors of the body;
(db) impose conditions in a
licence enabling OFCOM to require the licence holder to provide them with such
information as they may reasonably require for determining –
(i) whether the licence holder is a
disqualified person in relation to that licence by virtue of Part 2 of
Schedule 2 to the 1990 Act; or
(ii) whether any such requirements as are mentioned
in subsection (1)(b) have been and are being complied with by or in relation to
the licence holder;”.
(4) In
subsection (6) –
(a) in paragraph (a),
for “complained of” there shall be substituted “constituting their grounds for
revoking the licence”.
(b) in paragraph (b)(i),
for “Parts III and IV of Schedule 2 to the 1990 Act” there shall be
substituted “the requirements imposed by or under Schedule 14 to the Communications Act 2003”.
(5) In
subsection (7) –
(a) paragraph (a) shall
cease to have effect; and
(b) in paragraph (b),
for “Part IV of that Schedule” there shall be substituted “Part 1 of
Schedule 14 to the Communications Act 2003”.
(6) In
subsection (8), for the words from “a failure” to the end of paragraph (c)
there shall be substituted “a disqualification under Part 2 of Schedule 2
to the 1990 Act or a contravention of a requirement imposed by or under
Schedule 14 to the Communications
Act 2003,”.
Multiplex
licences
79
(1) Section 7
of the 1996 Act (multiplex licences) shall be amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (4) –
(a) after paragraph (c)
there shall be inserted –
“(ca) the applicant’s
proposals as to the number (if any) of digital sound programmes services which
are to be broadcast, as to the characteristics of each of those services and as
to the areas in which they would be provided;”
(b) in paragraph (d) for
“those services” there shall be substituted “the services mentioned in
paragraphs (c) and (ca)”.
Award of
multiplex licences
80
(1) Section
8 of the 1996 Act (award of multiplex licences) shall be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (2)(f), after “digital programme service” there shall be inserted “,
digital sound programme service”.
Power to
require two or more multiplex licences to be granted to one person
81
In section 9 of the 1996
Act (grant of two or more multiplex licences to one person), for “The
Commission” and “the Commission”, wherever occurring, there shall be
substituted “OFCOM”.
Award of
multiplex licences subject to conditions
82
(1) Section
10 of the 1996 Act (award of multiplex licences subject to conditions) shall be
amended as follows.
(2) For
“The Commission” and “the Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1)(a), for “the 1990 Act or this Act” there shall be substituted
“this Act, the 1990 Act or Part 3 of the Communications Act 2003”.
Failure
to provide licensed service and revocation
83
In section 11 of the
1996 Act (failure to provide licensed service and revocation), for “the
Commission”, wherever occurring, there shall be substituted “OFCOM”.
Conditions
attached to multiplex licences
84
In section 12 of the 1996
Act (conditions attached to multiplex licences), for “the Commission”, wherever
occurring, there shall be substituted “OFCOM”.
Additional
payments in respect of multiplex licences
85
In section 13 of the 1996
Act (additional payments in respect of multiplex licences), for “the
Commission”, wherever occurring, there shall be substituted “OFCOM”.
Multiplex
revenue
86
(1) Section
14 of the 1996 Act (multiplex revenue) shall be amended as follows.
(2) In
subsection (1) –
(a) for “section 13(1)” there
shall be substituted “this Part”;
(b) for “the holder of a
multiplex licence” there shall be substituted “the person who is the multiplex
provider in relation to any television multiplex service or any general
multiplex service”;
(c) in paragraph (a),
for “the multiplex service to which the licence relates” there shall be
substituted “the relevant multiplex”;
(d) in paragraph (b) for
“of any qualifying service by means of the multiplex service” there shall be substituted
“by means of the multiplex service of any service which is a qualifying service
or which (without being a qualifying service) is provided by the BBC”;
(e) in paragraphs (c)
and (d), for “the holder of the multiplex licence” and “the multiplex service”,
in each place where they occur there shall be substituted, respectively, “the
multiplex provider” and “the relevant multiplex”.
(3) In
subsections (2) to (8) –
(a) for the words “the holder
of the multiplex licence” and “the licence holder”, wherever occurring, there
shall be substituted, in each case, “the multiplex provider”; and
(b) for “the Commission”,
wherever occurring, there shall be substituted “OFCOM”.
(4) In
subsection (9) –
(a) for “a multiplex
licence”, in each place, there shall be substituted “a television multiplex
service or a general multiplex service”;
(b) for “the multiplex
service to which the licence relates”, in each place, there shall be
substituted “that multiplex service”;
(c) after the definition of
“additional services provider” there shall be inserted –
“ ‘multiplex provider’ –
(a) in relation to a
television multiplex service for which a person holds a licence under this
Part, means the licence holder; and
(b) in relation to a
television multiplex service which is not licensed under this Part or a general
multiplex service, means the person who provides that service;”
(d) after the definition of
“programme provider” there shall be inserted –
“ ‘the relevant multiplex’ –
(a) in relation to a
multiplex provider falling within paragraph (a) of the definition of that
expression, means the television multiplex service to which his licence
relates; and
(b) in relation to any
other multiplex provider, means the television multiplex service or general
multiplex service which is provided by him;
and this section and section 15 shall have effect as if references
in this section to digital programme services included references to digital
sound programme services and references to digital additional services included
references to digital additional services within the meaning of Part 2.”
Attribution
of multiplex revenue to multiplex providers
87
(1) Section
15 of the 1996 Act (attribution of multiplex revenue to licence holder) shall
be amended as follows.
(2) In
subsection (1) –
(a) for “the holder of a
multiplex licence” there shall be substituted “the person who is the multiplex
provider in relation to any television multiplex service”;
(b) for “of multiplex
services in that period,” there shall be substituted “in that period of television
multiplex services,”;
(c) for “the holder of the
multiplex licence” there shall be substituted, “the multiplex provider”.
(3) In
subsection (2) –
(a) for “a multiplex service”
there shall be substituted “a television multiplex service or a general
multiplex service”;
(b) for “the holder of the
multiplex licence”, wherever occurring, there shall be substituted “the
multiplex provider”.
(4) In
subsection (3) –
(a) for “the Commission”
there shall be substituted “OFCOM”; and
(b) for “the holder of the
multiplex licence” there shall be substituted “the multiplex provider”.
(5) In
subsection (4) –
(a) after ‘additional
services provider’ there shall be inserted “, ‘multiplex provider’”; and
(b) for “a multiplex licence”
there shall be substituted “a television multiplex service or a general
multiplex service”.
Duration
of multiplex licences
88
(1) Section
16 of the 1996 Act (duration and renewal of multiplex licences) shall be
amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (3), after “not later than” there shall be inserted “the day falling
three months before”.
(4) After
subsection (12), there shall be inserted –
“(12A) A determination for the
purposes of subsection (12) –
(a) must be made at least
one year before the date determined; and
(b) must be notified by
OFCOM to the person who holds the licence in question.”
Enforcement
of multiplex licences
89
In section 17 of the
1996 Act (enforcement of multiplex licences), for “the Commission” and “The
Commission”, wherever occurring, there shall be substituted “OFCOM”.
Licensing
of digital programme services
90
(1) Section
18 of the 1996 Act (licensing of digital programme services) shall be amended
as follows.
(2) In
subsections (1) to (4), for “the Commission”, wherever occurring, there shall
be substituted “OFCOM”.
(3) Subsections
(5) and (6) (application of sections 6 to 12 of the 1990 Act) shall cease to
have effect.
Conditions
of licences for digital programme services
91
(1) Section
19 of the 1996 Act (conditions of licences for digital programme services)
shall be amended as follows.
(2) In
subsection (3) –
(a) for “the Commission”,
wherever occurring, there shall be substituted “OFCOM”;
(b) in paragraphs (a)
and (c), for “the holder of a multiplex licence” there shall be substituted, in
each case, “the provider of a television multiplex service or general multiplex
service”;
(c) in paragraph (a),
for “by means of a multiplex service” there shall be substituted “by means of
that provider’s service”; and
(d) in paragraph (a)(i),
for “the identity of the multiplex service” there shall be substituted “the
identity of the service by means of which it will be broadcast”.
(3) Subsections
(2) and (4) to (10) of that section shall cease to have effect.
Duration
and enforcement of multiplex licenses
92
(1) Section
23 of the 1996 Act (enforcement of digital programme licences) shall be amended
as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be substituted
“OFCOM”.
(3) In
subsection (4), for the words from “multiplex service” onwards there shall be
substituted “television multiplex service or general multiplex service, means
the last accounting period of the multiplex provider”.
(4) In
subsection (5), for “multiplex service, the first accounting period of the
holder of the multiplex licence” there shall be substituted “television
multiplex service or general multiplex service, the first accounting period of
the multiplex provider”.
(5) After
that subsection there shall be inserted –
“(5A) In subsections (4) and (5) ‘multiplex provider’
has the same meaning as in section 14.”
(6) In
subsection (8) for “apology” there shall be substituted “statement of
findings”.
Digital
additional services
93
(1) Section
24 of the 1996 Act (digital additional services) shall be amended as follows.
(2) In
subsection (1), for paragraphs (a) and (b) there shall be
substituted –
“(a) is provided by a person
with a view to its being broadcast in digital form (whether by him or some
other person) so as to be available for reception by members of the public;
(b) is so provided with a
view either –
(i) to the broadcasting being by means of a
television multiplex service or by means of a general multiplex service; or
(ii) to the members of the public in question
being or including members of the public in an EEA State other than the United
Kingdom [and the Bailiwick of Jersey], or in an area of such a State;
and
(c) is not a Channel 3
service, Channel 4, Channel 5,
* * * the
digital public teletext service, a digital programme service, a digital sound
programme service, an ancillary service or a technical service.”
(3) In
subsection (2) (meaning of ancillary service) –
(a) for “an independent
analogue broadcaster” there shall be substituted “a relevant public service
broadcaster”; and
(b) for paragraphs (a)
and (b) there shall be substituted –
“(a) assistance for disabled
people in relation to some or all of the programmes included in a digital
programme service or qualifying service provided by him;
(b) a service (apart from
advertising) that relates to the promotion or listing of programmes included in
such a service or in a digital sound programme service so provided; or
(c) any other service
(apart from advertising) that is ancillary to one or more programmes so
included, and relates directly to their contents.”
(4) In
subsection (3)(a), after “digital programme services” there shall be inserted
“, digital sound programme services”.
(5) After
subsection (3) there shall be inserted –
‘assistance for disabled people’ has the same meaning as in Part 3
of the Communications Act 2003;
‘available for reception by members of the public’ shall be
construed in accordance with section 361 of that Act;
* * * * *
‘relevant public service broadcaster’ means any of the
following –
(a) a person licensed under
Part 1 of the 1990 Act to provide a Channel 3 service;
(b) the Channel 4
Corporation;
(c) a person licensed under
Part 1 of the 1990 Act to provide Channel 5;
(d) the BBC;
(e) * * * * *
(f) the public teletext
provider.”
Licensing
of digital additional services
94
(1) Section
25 of the 1996 Act (licensing of digital additional services) shall be amended
as follows.
(2) In
subsections (1) to (4), for “the Commission”, wherever occurring, there shall
be substituted “OFCOM”.
(3) After
subsection (4) there shall be inserted –
“(4A) A digital additional services licence is not
required for a service that is or is comprised in a qualifying service.”
(4) Subsections
(5) and (6) (application of sections 6 to 12 of the 1990 Act) shall cease to
have effect.
Conditions
of digital additional services licence
95
(1) Section
26 of the 1996 Act (conditions of licences for digital additional services)
shall be amended as follows.
(2) In
subsection (2) –
(a) for “the Commission”,
wherever occurring, there shall be substituted “OFCOM”;
(b) in paragraphs (a)
and (c), for “the holder of a multiplex licence” there shall be substituted, in
each case, “the provider of a television multiplex service or general multiplex
service”;
(c) in paragraph (a),
for “by means of a multiplex service” there shall be substituted “by means of
that provider’s service”; and
(d) in paragraph (a)(i),
for “the identity of the multiplex service” there shall be substituted “the
identity of the service by means of which it will be broadcast”.
Enforcement
of digital additional television services licences
96
(1) Section
27 of the 1996 Act (enforcement of digital additional television services
licences) shall be amended as follows.
(2) For
“the Commission” and “The Commission”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (4), for the words from “multiplex service” onwards there shall be
substituted “television multiplex service or general multiplex service, means
the last accounting period of the multiplex provider”.
(4) In
subsection (5), for “multiplex service, the first accounting period of the
holder of the multiplex licence” there shall be substituted “television
multiplex service or general multiplex service, the first accounting period of
the multiplex provider”.
(5) After
that subsection there shall be inserted –
“(5A) In subsections (4) and (5) ‘multiplex provider’
has the same meaning as in section 14.”
Digital
broadcasting of Gaelic programmes
* * * * * * *
Review
of digital television broadcasting
98
(1) Section
33 of the 1996 Act (review of digital television broadcasting) shall be amended
as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1)(a)(ii), for the words “services specified in section 2(3), S4C
Digital, the qualifying teletext service” there shall be substituted “following
services, namely, Channel 3 services, Channel 4, Channel 5,
* * * the
digital public teletext service”.
Enforcement
of licences held by BBC companies
99
In section 35 of the
1996 Act (enforcement of licences held by BBC companies), for “the Commission”,
wherever occurring, there shall be substituted “OFCOM”.
Interpretation
of Part 1
100
In section 39(1)
(interpretation of Part 1) –
(a) after
the definition of “digital programme service” there shall be inserted –
“ ‘digital public teletext service’ has the same meaning as in Part 3
of the Communications Act 2003;
‘digital sound programme service’ has the same meaning as in Part 2
of this Act;
‘general multiplex service’ has the same meaning as in that Part;”.
(b) for
the definition of “public teletext provider” there shall be substituted –
“ ‘public teletext provider’ means the person for the time being
licensed under Part 1 of the 1990 Act to provide the public teletext
service (within the meaning of Part 3 of the Communications Act 2003);”
(c) * * * * *
(d) after
the definition of “technical service” there shall be inserted –
“ ‘television multiplex service’ has the meaning given by
section 241 of the Communications
Act 2003.”
Radio multiplex
services
101
(1) Section
40 of the 1996 Act (radio multiplex services) shall be amended as follows.
(2) For
subsections (1) to (3) there shall be substituted –
“(1) In this Part ‘radio multiplex service’ means
a radio multiplex service within the meaning of Part 3 of the Communications Act 2003.”
(3) In
subsection (4) (local and national multiplex services), the words “provided on
a frequency or frequencies assigned to the Authority under section 45(1)” shall
be omitted.
(4) In
subsection (5), for “for general reception” there shall be substituted “so as
to be available for reception by members of the public”.
(5) For
subsection (8) of that section there shall be substituted –
‘available for reception by members of the public’ shall be
construed in accordance with section 361 of the Communications Act 2003;
‘broadcast’ means broadcast otherwise than from a satellite.”
Licences
under Part 2 of the 1996 Act
102
(1) Section
42 of the 1996 Act (licences under Part 2) shall be amended as follows.
(2) In
subsection (1), for “the Radio Authority (in this Part referred to as ‘the
Authority’)” there shall be substituted “OFCOM”.
(3) In
subsections (2), (5) and (6), for “The Authority” and “the Authority”, wherever
occurring, there shall be substituted “OFCOM”.
(4) For
subsection (3) (variation of licences) there shall be substituted –
“(3) OFCOM may vary a licence by a notice served
on the licence holder.
(3A) OFCOM shall not vary –
(a) the period for which a
licence having effect for a specified period is to continue in force, or
(b) increase the total
amount of digital capacity specified in a national radio multiplex licence for
the purposes of section 48(1A),
unless the licence holder consents.
(3B) OFCOM shall not make any other variation of a
licence unless the licence holder has been given a reasonable opportunity of
making representations to OFCOM about the variation.”
(5) In
subsection (4) (exceptions from power to vary licences), for “Paragraph (a)
of subsection (3)” there shall be substituted “Paragraph (a) of subsection
(3A)”.
(6) For
subsection (7) there shall be substituted –
“(7) The holding of a licence by a person shall
not relieve him –
(a) of any liability in
respect of a failure to hold a licence under section 1 of the Wireless Telegraphy Act
1949; or
(b) of any obligation to
comply with requirements imposed by or under Chapter 1 of Part 2 of
the Communications
Act 2003 (electronic communications networks and
electronic communications services).”
General
licence conditions
103
(1) Section
43 of the 1996 Act (general licence conditions) shall be amended as follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (1) (conditions may include conditions to give effect to duties
imposed by or under 1990 Act or 1996 Act) –
(a) in paragraph (a),
for “the 1990 Act or this Act” there shall be substituted “this Act, the 1990
Act or the Communications
Act 2003”; and
(b) in paragraph (d),
after “this Act” there shall be inserted “, the 1990 Act or the Communications Act 2003”.
(4) In
subsection (2), sub-paragraph (ii) of paragraph (b) and the word “or”
immediately preceding it shall be omitted.
(5) In
subsection (3) (fixing of fees), the words from “and the amount” onwards shall
be omitted.
Restrictions
on holding licences
104
(1) Section
44 of the 1996 Act (restrictions on the holding of licences) shall be amended
as follows.
(2) For
“The Authority” and “the Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (2) (incidental requirements to provide information), after
paragraph (d) there shall be inserted –
“(da) impose conditions in a
licence requiring the licence holder, if a body corporate, to give OFCOM
notice, after they have occurred and irrespective of whether proposals for them
have fallen to be notified, of changes, transactions or events affecting –
(i) shareholdings in the body; or
(ii) the directors of the body;
(db) impose conditions in a
licence enabling OFCOM to require the licence holder to provide them with such
information as they may reasonably require for determining –
(i) whether the licence holder is a
disqualified person in relation to that licence by virtue of Part 2 of
Schedule 2 to the 1990 Act; or
(ii) whether any such requirements as are
mentioned in subsection (1)(b) have been and are being complied with by or
in relation to the licence holder;”.
(4) In
subsection (6) –
(a) in paragraph (a),
for “complained of” there shall be substituted “constituting their grounds for revoking
the licence”; and
(b) in paragraph (b)(i),
for “Parts III and IV of Schedule 2 to the 1990 Act” there shall be
substituted “the requirements imposed by or under Schedule 14 to the Communications Act 2003”.
(5) In
subsection (7) –
(a) paragraph (a) shall
cease to have effect; and
(b) in paragraph (b),
for “Part IV of that Schedule” there shall be substituted “Part 1 of
Schedule 14 to the Communications Act 2003”.
(6) In
subsection (8), for the words from “a failure” to the end of paragraph (c)
there shall be substituted “a disqualification under Part 2 of Schedule 2
to the 1990 Act or a contravention of a requirement imposed by or under
Schedule 14 to the Communications
Act 2003,”.
National
radio multiplex licences
105
(1) Section
46 of the 1996 Act (national radio multiplex licences) shall be amended as
follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1)(d), for “a direction” there shall be substituted “a condition”.
Award of
national radio multiplex licences
106
In section 47 of the 1996
Act (award of national radio multiplex licences), for “the Authority”, wherever
occurring, there shall be substituted “OFCOM”.
Reservation
of capacity for independent national broadcasters
107
(1) Section 48
of the 1996 Act (reservation of digital capacity for independent broadcasters)
shall be amended as follows.
(2) For
subsections (1) to (3) there shall be substituted –
“(1A) OFCOM must ensure that the conditions included
in national radio multiplex licences (taken together) secure that an amount of
digital capacity on the multiplex frequencies is reserved for every independent
national broadcaster for the broadcasting of a simulcast radio service provided
by that broadcaster.
(1B) Where the conditions of a licence for a
national radio multiplex service reserve capacity on the frequency made
available for that service for the broadcasting of a simulcast radio service
provided by an independent national broadcaster, those conditions must also
include the condition specified in subsection (1C).
(1C) That condition is the condition that OFCOM
consider appropriate for securing that, in consideration of the making by the
independent national broadcaster of the payments which –
(a) are agreed from time to
time between him and the licence holder, or
(b) in default of
agreement, are determined under this section,
the licence holder uses, for the broadcasting of a simulcast radio
service provided by that broadcaster, such of the reserved digital capacity as
may be requested, from time to time, by that broadcaster.
(1D) Where conditions are included under this
section in a national radio multiplex licence reserving capacity for an
independent national broadcaster, OFCOM may include conditions relating to the
broadcasting of the simulcast radio service in the licence for the national
service provided by that broadcaster.”
(3) In
subsections (4) to (6), for “the Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(4) In
subsection (4), for “subsection (3)(a)” there shall be substituted “subsection
(1C)”.
(5) After
subsection (6) there shall be inserted –
“(7) In this section ‘the multiplex frequencies’
means the frequencies made available for the purposes of licensed national
radio multiplex services.”
Reservation
of digital capacity for BBC
108
(1) Section
49 of the 1996 Act (reservation of digital capacity for BBC) shall be amended
as follows.
(2) In
subsections (1) to (3) and (6), for “the Authority”, wherever occurring, there
shall be substituted “OFCOM”.
(3) In
subsection (4) (determination of capacity to be reserved), for the words from
“If the BBC” to “the Secretary of State, who may” there shall be substituted
“If the BBC do not give their consent to the proposals within such period as
OFCOM may specify in their notice under subsection (3), OFCOM shall”.
(4) In
subsection (5), for [the] words from “the Secretary of State” onwards there
shall be substituted “OFCOM shall give the BBC an opportunity of making
representations to them about their proposals.”
(5) In
subsection (6), after “and the BBC” there shall be inserted “or (in default of
agreement) determined under this section”.
(6) After
that subsection there shall be inserted –
“(7) Where the holder of the licence and the BBC
fail to agree –
(a) the payments to be made
under a condition included in the licence in accordance with subsection (6), or
(b) the other terms that
are to apply in relation to the use of digital capacity in accordance with such
a condition,
either of them may refer the matter to OFCOM for determination.
(8) Before making a determination under
subsection (7), OFCOM must give the licence holder and the BBC an
opportunity of making representations to them about the matter.
(9) In making any determination under subsection (7),
OFCOM shall have regard to –
(a) the expenses incurred,
or likely to be incurred, by the licence holder in providing the local radio
multiplex service in question, and
(b) the terms on which
persons providing local radio multiplex services contract with persons
providing local digital additional services for the broadcasting of those
services.”
Local
radio multiplex licences
109
(1) Section
50 of the 1996 Act (local radio multiplex licences) shall be amended as
follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (1)(b), for “the Secretary of State has” there shall be
substituted “OFCOM have”.
(4) In
subsection (2)(d), for “direction under section 49” substitute
“determination under section 49(4)”.
Award of
local multiplex licences
110
(1) Section
51 of the 1996 Act (award of local multiplex licences) shall be amended as
follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (2), for paragraph (f) there shall be substituted –
“(f) the extent to which
there is evidence that, amongst persons living in that area or locality, there
is a demand for, or support for, the provision of the proposed service; and”.
Power to
require two or more local radio multiplex licences to be granted to
one person
111
In section 52 of the
1996 Act (power to require two or more local radio multiplex licences to be
granted to one person), for “The Authority” and “the Authority” there shall be
substituted “OFCOM”.
Failure
to begin to provide licensed service
112
In section 53 of the 1996
Act (failure to provide licensed service), for “the Authority”, wherever
occurring, there shall be substituted “OFCOM”.
Conditions
which may be attached to radio multiplex licences
113
In section 54 of the 1996
Act (conditions which may be attached to a radio multiplex licence), for “the
Authority”, wherever occurring, there shall be substituted “OFCOM”.
Additional
payments to be made in respect of national radio multiplex licences
114
In section 55 of the 1996
Act (additional payments to be made in respect of national radio multiplex
licences) for “the Authority”, wherever occurring, there shall be substituted
“OFCOM”.
Multiplex
revenue
115
(1) Section
56 of the 1996 Act (multiplex revenue) shall be amended as follows.
(2) In
subsection (1) –
(a) for “section 55(1)” there
shall be substituted “this Part”;
(b) for “the holder of a
national radio multiplex licence” there shall be substituted “the person who is
the multiplex provider in relation to a national radio multiplex service”;
(c) in paragraph (a)(i),
“to which the licence relates” shall be omitted;
(d) in paragraphs (c)
and (d), for “the holder of the radio multiplex licence” there shall be
substituted “the multiplex provider”.
(3) In
subsections (2) to (8) –
(a) for “the holder of the
radio multiplex licence”, “the licence holder” and “the holder of the multiplex
licence”, wherever occurring, there shall be substituted, in each case, “the
multiplex provider”; and
(b) for “the Authority”,
wherever occurring, there shall be substituted “OFCOM”.
(4) In
subsection (9) –
(a) for “a national radio
multiplex licence”, in each place, there shall be substituted “a national radio
multiplex service”;
(b) for “the radio multiplex
service to which the licence relates”, in each place, there shall be
substituted “that radio multiplex service”;
(c) after the definition of
“additional services provider” there shall be inserted –
“ ‘multiplex provider’ –
(a) in relation to a
national radio multiplex service for which a person holds a licence under this
Part, means the licence holder; and
(b) in relation to a
national radio multiplex service which is not licensed under this Part, means
the person who provides that service.”
Attribution
of radio multiplex revenue
116
(1) Section
57 of the 1996 Act (attribution of radio multiplex revenue) shall be amended as
follows.
(2) In
subsection (1) –
(a) for “the holder of a
national radio multiplex licence” there shall be substituted “the person who is
the multiplex provider in relation to a national radio multiplex service”; and
(b) for “the holder of the
national radio multiplex licence” there shall be substituted “the multiplex
provider”.
(3) In
subsection (2), for “the holder of the radio multiplex licence”, wherever
occurring, there shall be substituted “the multiplex provider”.
(4) In
subsection (3) –
(a) for “the Authority” there
shall be substituted “OFCOM”; and
(b) for “the holder of the
national radio multiplex licence” there shall be substituted “the multiplex
provider”.
(5) In
subsection (4) –
(a) after “ ‘additional
services provider’ ” there shall be inserted “ ‘, multiplex
provider’ ”; and
(b) for “a national radio
multiplex licence” there shall be substituted “a national radio multiplex
service”.
Duration
and renewal of radio multiplex licences
117
(1) Section
58 of the 1996 Act (duration and renewal of radio multiplex licences) shall be
amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (3), after “not later than” there shall be inserted “the day falling
three months before”.
(4) Subsection
(5) (consent of the Secretary of State for exercise of certain powers in
connection with renewal) shall cease to have effect.
(5) After
subsection (12) there shall be inserted –
“(12A) A determination for the
purposes of subsection (12) –
(a) must be made at least
one year before the date determined; and
(b) must be notified by
OFCOM to the person who holds the licence in question.”
Enforcement
of radio multiplex licences
118
In section 59 of the 1996
Act (enforcement of radio multiplex licences), for “the Authority” and “The
Authority”, wherever occurring, there shall be substituted “OFCOM”.
Digital
sound programme licensing
119
(1) Section
60 of the 1996 Act (digital sound programme licensing) shall be amended as
follows.
(2) For
“the Authority”, wherever occurring, there shall be substituted “OFCOM”.
(3) After
subsection (6), there shall be inserted –
“(6A) Section 89 of the 1990 Act (disqualification
from being licence holder or concerned with the provision of a programme
service if convicted of a transmitting offence) shall apply in relation to a
licence under this section as it applies to a licence under Part 3 of that
Act, but with the omission of paragraph (b) of subsection (3) of that
section and of the word ‘or’ immediately before that paragraph.”
(4) Sub-paragraph (3)
does not impose a disqualification in respect of any offence committed before
the commencement of that sub-paragraph.
Conditions
of digital sound programme licences
120
(1) Section 61
of the 1996 Act (conditions of licences for digital sound programme services)
shall be amended as follows.
(2) In
subsection (2) –
(a) for “the Authority”,
wherever occurring, there shall be substituted “OFCOM”;
(b) in paragraphs (a)
and (c), for “the holder of a radio multiplex licence”, there shall be
substituted, in each case, “the provider of a radio multiplex service, of a
television multiplex service or of a general multiplex service”;
(c) in paragraph (a) for
“by means of a radio multiplex service” there shall be substituted “by means of
the multiplex service”; and
(d) in paragraph (a)(i)
for “radio multiplex service” there shall be substituted “multiplex service”.
Enforcement
of digital sound programme licences
121
(1) Section
62 of the 1996 Act (enforcement of digital sound programme licences) shall be
amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (4), for the words from “national radio multiplex service” onwards
there shall be substituted “relevant multiplex service, means the last
accounting period of the multiplex provider”.
(4) In
subsection (5) –
(a) for “national radio
multiplex service” there shall be substituted “relevant multiplex service”;
(b) for “holder of the
national radio multiplex licence” there shall be substituted “multiplex
provider”; and
(c) for “the radio multiplex
service” and “that radio multiplex service” there shall be substituted “that
relevant multiplex service”.
(5) After
subsection (5A) (inserted by Schedule 13) there shall be inserted –
“(5B) For the purposes of this section, a service is
a relevant multiplex service if it is –
(a) a national radio
multiplex service;
(b) a television multiplex
service; or
(c) a general multiplex
service.
(5C) In this section, “multiplex provider” –
(a) in relation to a
national radio multiplex service, means the multiplex provider within the
meaning of section 56; and
(b) in relation to a
television multiplex service or a general multiplex service, means the
multiplex provider within the meaning of section 14.”
(6) In
subsection (10) for “apology” there shall be substituted “statement of
findings”.
Digital
additional sound services
122
In section 64 of the 1996
Act (licensing of digital additional sound services), for “the Authority”,
wherever occurring, there shall be substituted “OFCOM”.
Conditions
of digital additional sound service
123
(1) Section
65 of the 1996 Act (conditions of licences for digital additional sound
services) shall be amended as follows.
(2) In
subsection (2) –
(a) for “the Authority”,
wherever occurring, there shall be substituted “OFCOM”;
(b) in paragraphs (a) and
(c), for “the holder of a radio multiplex licence”, there shall be substituted,
in each case, “the provider of a radio multiplex service or of a general
multiplex service”;
(c) in paragraph (a) for
“by means of a radio multiplex service” there shall be substituted “by means of
the multiplex service”; and
(d) in paragraph (a)(i)
for “radio multiplex service” there shall be substituted “multiplex service”.
Enforcement
of digital additional sound services licences
124
(1) Section
66 of the 1996 Act (enforcement of digital additional services licences) shall
be amended as follows.
(2) For
“the Authority” and “The Authority”, wherever occurring, there shall be
substituted “OFCOM”.
(3) In
subsection (4), for “national radio multiplex service” there shall be substituted
“relevant multiplex service”.
(4) In
subsection (5), for the words from “national radio multiplex service” onwards
there shall be substituted “relevant multiplex service, means the last
accounting period of the multiplex provider”.
(5) In
subsection (6) –
(a) for “national radio
multiplex service” there shall be substituted “relevant multiplex service”;
(b) for “holder of the
national radio multiplex licence” there shall be substituted “multiplex
provider”; and
(c) for “the radio multiplex
service” and “that radio multiplex service” there shall be substituted “that
relevant multiplex service”.
(6) After
subsection (6A) (inserted by Schedule 13) there shall be inserted –
“(6B) For the purposes of this section, a service is
a relevant multiplex service if it is –
(a) a national radio
multiplex service; or
(b) a general multiplex
service.
(6C) In this section, “multiplex provider” –
(a) in relation to a
national radio multiplex service, means the multiplex provider within the
meaning of section 56; and
(b) in relation to a
general multiplex service, means the multiplex provider within the meaning of
section 14.”
(7) In
subsection (10) for “apology” there shall be substituted “statement of
findings”.
Review
of digital radio broadcasting
125
In section 67 of the 1996
Act (review of digital radio broadcasting), for “the Authority”, wherever
occurring, there shall be substituted “OFCOM”.
Interpretation
126
In section 72(1) of the
1996 Act (interpretation), for the definition of “radio multiplex service” there
shall be substituted –
“ ‘radio multiplex service’ means a radio multiplex service within
the meaning of Part 3 of the Communications
Act 2003;
‘the radio transfer date’ has the same meaning as in the Communications Act 2003;”.
Listed
events
127
(1) Section
98 of the 1996 Act (categories of service for the purposes of Part 4 of
that Act) shall be amended as follows.
(2) * * * * *
(3) In
subsection (5), for “The Commission” there shall be substituted “OFCOM”.
(4) In
subsection (6), for “transmission for general reception of television
programmes by satellite” there shall be substituted “broadcasting of television
programmes from a satellite so as to be available for reception by members of
the public (within the meaning of Part 3 of the Communications Act 2003)”.
128
In sections 101, 101B,
102 and 103 of the 1996 Act (restrictions on, and penalties for, televising
listed and designated events), for “The Commission” and “the Commission”,
wherever occurring, there shall be substituted “OFCOM”.
129
(1) Section
104 of the 1996 Act (code of guidance) shall be amended as follows.
(2) For
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
(3) In
subsection (4)(d), the words “by the Commission” and “by them” shall be
omitted.
130
In section 104A of the
1996 Act (provision of information about listed and designated events), for
“the Commission”, wherever occurring, there shall be substituted “OFCOM”.
131
In section 105(1) of the
1996 Act (interpretation of Part 4 etc.), the definition of “the
Commission” shall be omitted.
Broadcasting
standards
132
(1) Part 5
of the 1996 Act (the Broadcasting Standards Commission) shall be amended as
follows.
(2) For
“the BSC” and “The BSC”, wherever occurring in any of sections 107, 110, 111,
114, 115, 118 to 121 there shall be substituted “OFCOM”.
133
* *
*
*
*
*
*
134
In section 115 of the
1996 Act (consideration of fairness complaints) –
(a) in
subsection (2)(d), for “to (c)” there shall be substituted “or (b)”; and
(b) in
subsection (8), for “they shall send a statement of” there shall be substituted
“OFCOM shall send a copy of”.
135
In section 117 of the
1996 Act (duty of broadcasting body to retain recordings of programmes), for
“sections 115 and 116” there shall be substituted “section 115”.
136
(1) For
subsections (1) and (2) of section 119 of the 1996 Act there shall be
substituted –
“(1) Where OFCOM have considered and adjudicated
upon a fairness complaint, they may direct the relevant person to publish the
matters mentioned in subsection (3) in such manner, and within such period, as
may be specified in the directions.”
(2) In
that section –
(a) in subsection (4), for
“subsection (2)” there shall be substituted “subsection (1)”;
(b) in subsection (5), for
“(3)(a), (b) or (c)” there shall be substituted “(3)(a) or (b)”;
(c) in subsection (6), for
“broadcasting or regulatory body” there shall be substituted “relevant person”
and for “them” there shall be substituted “him”;
(d) in subsection (8), the
words “or standards complaint” and in paragraph (c) the words “, a
regulatory body” shall be omitted;
(e) in subsection (10), for
paragraphs (a) and (b) there shall be substituted “a relevant person”; and
(f) subsection (12) shall
cease to have effect.
(3) After
subsection (11) of that section there shall be inserted –
“(11A) In this section “relevant person” means –
(a) in a case where the
relevant programme was broadcast by a broadcasting body, that body; and
(b) in a case where the
relevant programme was included in a licensed service, the licence holder
providing that service.”
137
In section 130(1) of the 1996
Act (interpretation of Part 5), for paragraphs (b) and (c) of the
definition of “licensed service” there shall be substituted –
“(aa) the public teletext
service,
(b) any relevant
independent radio service (within the meaning of section 85 of the 1990 Act),
(c) any additional service
(within the meaning of Part 1 of the 1990 Act) which is licensed under
that Part,”.
Disqualification
on grounds related to political objects
138
(1) Section
143 of the 1996 Act (disqualification on grounds related to political objects)
shall be amended as follows.
(2) In
each of subsections (1) and (2) –
(a) for “the Independent
Television Commission” and “the Commission” there shall be substituted “OFCOM”;
and
(b) for “section 5(1) of the
1990 Act, or as the case may be section 5(1) of this Act” there shall be
substituted “section 5(1) or 88(1) of the 1990 Act or section 5(1) or 44(1) of
this Act”.
(3) In
subsection (1), for “Part I or II of the 1990 Act or Part I of this Act” there
shall be substituted “Part 1 or 3 of the 1990 Act or Part 1 or 2 of
this Act,”.
(4) In
subsection (2), for “Parts I or II of the 1990 Act or Part I of this Act” there
shall be substituted “Part 1 or 3 of the 1990 Act or Part 1 or 2 of
this Act,”.
(5) Subsections
(3) and (4) shall cease to have effect.
(6) In
subsection (5), for “to (4)” there shall be substituted “and (2)”.
(7) In
subsection (6), for paragraphs (a) and (b) there shall be substituted “the
duties imposed on OFCOM by sections 5(1) and 88(1) of the 1990 Act and sections
5(1) and 44(1) of this Act.”
Offence
of providing false information
139
(1) Section
144 of the 1996 Act (offence of providing false information) shall be amended
as follows.
(2) In
subsection (1), for “to the relevant authority a statement”, in each place,
there shall be substituted “a statement to OFCOM”.
(3) In
subsection (2), for “the relevant authority” there shall be substituted
“OFCOM”.
(4) Subsection
(5) shall cease to have effect.
Disqualification
for supplying false information
140
(1) Section
145 of the 1996 Act (disqualification for offence of supplying false
information) shall be amended as follows.
(2) In
subsection (5), for “the relevant authority” there shall be substituted
“OFCOM”.
(3) In
subsection (7) –
(a) for “5(1)(a) and
88(1)(a)” there shall be substituted “5(1)(a) and (2)(db), 32(12) and 88(1)(a)
and (2)(db)”; and
(b) for “5(1)(a) and
44(1)(a)” there shall be substituted “5(1)(a) and (2)(db) and 44(1)(a) and
(2)(db)”.
(4) In
subsection (8) of that section, for the definition of “licence” there shall be
substituted –
“ ‘licence’ means a licence under Part 1 or 3 of the 1990 Act
or under Part 1 or 2 of this Act;”.
Interpretation
141
In section 147(1) of the
1996 Act (general interpretation), after the definition of “the BBC” there
shall be inserted –
“ ‘OFCOM’ means the Office of Communications;”.
Computation
of qualifying revenue
142
(1) Schedule 1
to the 1996 Act (computation of “multiplex revenue” etc.) shall be amended as
follows.
(2) In
Part 1, for “the Commission” and “The Commission”, wherever occurring,
there shall be substituted “OFCOM”.
(3) In
Part 2, for “the Authority” and “The Authority”, wherever occurring, there
shall be substituted “OFCOM”.
SCHEDULE
16
* * * * * * *
SCHEDULE
17
Section 406
MINOR
AND CONSEQUENTIAL AMENDMENTS
Interpretation
1
(1) In
any Act or instrument amended by this Schedule –
“communications service”
means any of the following services –
(a) an electronic
communications service;
(b) the provision of
directory information by means of an electronic communications network for the
purpose of facilitating the use of an electronic communications service
provided by means of that network;
(c) the installation,
maintenance, adjustment, repair, alteration, moving, removal or replacement of
apparatus which is or is to be connected to an electronic communications
network;
“electronic communications
apparatus” has the same meaning as in the electronic communications code;
“the electronic
communications code” has the same meaning as in Chapter 1 of Part 2 of
this Act;
“electronic communications
code network” means –
(a) so much of an electronic
communications network or conduit system provided by an electronic
communications code operator as is not excluded from the application of the
electronic communications code by a direction under section 106; and
(b) an electronic
communications network which the Secretary of State or a Northern Ireland
department is providing or proposing to provide;
“electronic communications
code operator” means a person in whose case the electronic communications code
is applied by a direction under section 106;
“electronic communications
network” and “electronic communications service” each has the same meaning as
in this Act;
“former PTO” means a
person –
(a) who is a provider of a
public electronic communications network or a public electronic communications
service which, immediately before the date on which the repeal by this Act of
section 7 of the Telecommunications Act 1984
(c. 12) comes into force, was designated as a public telecommunication
system under section 9 of that Act; and
(b) who, immediately before
that date, was authorised to provide that network or service by a licence to
which section 8 of that Act applied;
“operator”, in relation to
an electronic communications code network, means –
(a) the electronic
communications code operator providing that network; or
(b) the Secretary of State or
a Northern Ireland department, to the extent that they are providing or
proposing to provide that network;
“provide” and cognate
expressions, in relation to an electronic communications network, an electronic
communications service or associated facilities, are to be construed in
accordance with section 32(4) of this Act;
“public electronic
communications network” and “public electronic communications service” each has
the same meaning as in Chapter 1 of Part 2 of this Act.
(2) In
this paragraph –
(a) “conduit system” has the
same meaning as in the electronic communications code and references to
providing a conduit system shall be construed in accordance with
paragraph 1(3A) of that code;
(b) “electronic
communications code”, “electronic communications code network”, “electronic communications
code operator”, “public electronic communications network” and “public
electronic communications service” each has the meaning given in sub-paragraph (1).
Official
Secrets Act 1911
* *
*
*
*
*
*
Law of
Property Act 1925
* *
*
*
*
*
*
Public
Health Act 1925
* *
*
*
*
*
*
London
Overground Wires, etc Act 1933
* *
*
*
*
*
*
Wireless
Telegraphy Act 1949
6
(1) Section
1 of the Wireless Telegraphy Act
1949[90] (c. 54) (licensing wireless telegraphy) shall be amended as
follows.
(2) In
subsection (1) –
(a) for paragraphs (a)
and (b) there shall be substituted “by OFCOM;”; and
(b) in the proviso, for the words
from “Provided” to “by regulations” there shall be substituted “Provided that
OFCOM may by regulations”.
(3) After
subsection (1) there shall be inserted –
“(1AA) Subsection (1) shall
not apply to the use of a television receiver (within the meaning of Part 4
of the Communications Act 2003)
for receiving a television programme or to the installation of a television
receiver for use solely for that purpose.”
(4) In
subsection (2), for paragraphs (a) and (b) there shall be substituted “as
OFCOM think fit,”.
(5) In
subsection (3), for the words from “revoked by” to “BBC” there shall be
substituted “revoked by OFCOM”.
(6) In
subsection (4), for the words from “notice in writing of” to “served”, in the
first place where it occurs, there shall be substituted “notice in writing from
OFCOM served by them”.
(7) In
subsection (5), for the words from “surrendered” to “so to do” there shall be
substituted “surrendered to OFCOM if required by them to do so”.
7
In section 1C of
that Act[91] (prohibition on Acts facilitating unauthorised broadcasting), for
subsection (4) there shall be substituted –
“(4) The cases in which a person is to be taken
for the purposes of this section as advertising by means of a broadcast include
any case in which he causes or allows it to be stated, suggested or implied
that entertainment included in the broadcast –
(a) has been supplied by
him; or
(b) is provided wholly or
partly at his expense.”
[8
After section 1C of that Act[92] there shall be inserted –
1D Procedures for the grant of licences
(1) An application for the grant of a wireless
telegraphy licence shall be determined in accordance with procedures prescribed
in regulations made by OFCOM.
(2) Where the person applying for a licence
fails to provide any information which OFCOM reasonably require in order to
satisfy themselves that the applicant is able to comply with the terms,
provisions and limitations in the licence, OFCOM may refuse to grant the
licence.
(3) No statutory instrument made by OFCOM under
this section shall have effect in the Bailiwick of Jersey until it has been
registered in the Royal Court and where any such instrument is so registered,
it shall have effect on the day following the day of such registration or on
the day of coming into force specified in the instrument, whichever is the
later.”]
9
(1) Section 3
of that Act[93] (regulations as to wireless telegraphy) shall be amended as
follows.
(2) In
subsection (1), for the words before paragraph (a) there shall be
substituted “OFCOM may make regulations- “.
(3) After
subsection (2) there shall be inserted –
“(2A) The approval of the Secretary of State is
required for the making by OFCOM of any regulations under this section.
(2B) A statutory instrument containing regulations
made by OFCOM under this section shall be subject to annulment in pursuance of
a resolution of either House of Parliament.”
10
No appeal shall be
brought to the tribunal established under section 9 of that Act[94] (appeals tribunal in relation to decisions about interference) in
respect of any decision made after the coming into force of section 192 of this
Act.
11
(1) Section 10
of that Act[95] (regulations as to radiation of electro-magnetic energy etc.) shall
be amended as follows.
(2) In
subsection (1), for the words before paragraph (a) there shall be
substituted “OFCOM may make regulations for either or both of the following
purposes –”.
(3) In
subsection (2), for the words from the beginning to “fit” there shall be
substituted “The requirements prescribed under subsection (1) shall be
such as OFCOM think fit”.
(4) After
subsection (4) there shall be inserted –
“(4A) The approval of the Secretary of State is
required for the making by OFCOM of any regulations under this section.
(4B) A statutory instrument containing regulations
made by OFCOM under this section shall be subject to annulment in pursuance of
a resolution of either House of Parliament.”
12
(1) Section
11 of that Act[96] (enforcement of regulations as to apparatus) shall be amended as
follows.
(2) In
subsection (1) –
(a) for the words before
paragraph (a) there shall be substituted “If OFCOM are of the opinion- “;
(b) for “he considers” there
shall be substituted “they consider”;
(c) for “he may” there shall
be substituted “OFCOM may”;
(d) for the words from “or,
if” to “fit” there shall be substituted “or, if OFCOM think fit”;
(e) in paragraph (ii) of
the proviso, for the words from the beginning to “satisfied” there shall be
substituted “if OFCOM are satisfied”.
(3) In
subsection (2), for the words from “notice in writing by” to “served”, in the
first place where it occurs, there shall be substituted “notice in writing from
OFCOM served by them”.
(4) In
subsection (7), for the words from “notice” to “section” there shall be
substituted “notice from OFCOM under this section”.
13
(1) Section
12 of that Act[97] (enforcement of regulations as to sales etc.) shall be amended as
follows.
(2) In
subsection (1) –
(a) for the words from the
beginning to “opinion” there shall be substituted “If OFCOM are of the
opinion”; and
(b) for “he” there shall be
substituted “OFCOM”.
(3) In
subsection (5), for the words from “by” onwards there shall be substituted
“by OFCOM, be guilty of an offence.”
14
(1) Section 14
of that Act[98] (penalties and legal proceedings) shall be amended as follows.
(2) In
subsection (1), for paragraph (a) substitute –
“(a) any offence under
section 5(1)(a) of this Act; or”.
(3) In
subsection (1A) –
(a) in paragraph (c),
for “of the Secretary of State” there shall be substituted “from OFCOM”; and
(b) paragraph (e) shall
cease to have effect.
(4) In
subsection (3) –
(a) paragraph (b) shall
cease to have effect; and
(b) for “the Secretary of
State” there shall be substituted “OFCOM”.
(5) In
subsections (3A), (3B), (3D) and (3E), for “the Secretary of State” there shall
be substituted “OFCOM”.
(6) In
subsection (3B), for “he thinks” there shall be substituted “they think”.
(7) In
subsection (3D), for “him” there shall be substituted “them”.
(8) In
subsection (7) (enforcement by civil proceedings) –
(a) after the words “the
Crown”, in the first place where they occur, there shall be inserted “or by
OFCOM,”;
* * *
(b) * * * * *
15
(1) Section
15 of that Act[99] (powers of entry) shall be amended as follows.
(2) In
subsection (1), for paragraphs (a) and (b) and the words “, with or
without any constables,” there shall be substituted “[any police officer] or
any person or persons authorised for the purpose by OFCOM or the Secretary of
State”.
(3) After
that subsection there shall be inserted –
“(1A) Where a person authorised by OFCOM or the
Secretary of State is authorised by a warrant under subsection (1) to enter any
premises, [shall execute the warrant accompanied by one or more police
officers].”
(4) In
subsection (2) –
(a) in paragraph (b),
for the words from “enable” to “decide” there shall be substituted “enable
OFCOM to decide”;
(b) in paragraph (c),
for the words from “behalf” to “producing” there shall be substituted “behalf
by OFCOM and producing”;
(c) in the words after
paragraph (c), for the words from “behalf” to “with” there shall be
substituted “behalf by OFCOM, with”;
(d) in paragraph (i) of
the proviso, for the words from “that”, in the first place where it occurs, to
“satisfied” there shall be substituted “that OFCOM are satisfied”.
(5) In
subsection (2A) for “the BBC” there shall be substituted “OFCOM”.
16
(1) Section
16 of that Act[100] (regulations and orders) shall be amended as follows.
(2) After
subsection (1) there shall be inserted –
[“(1A) No statutory instrument
made by OFCOM under this Act shall have effect in the Bailiwick of Jersey
unless it has been registered in the Royal Court and where any such instrument
is so registered, it shall have effect on the day following the day of such
registration or on the day of coming into force specified in the instrument,
whichever is the later.”]
(3) In
subsection (2), for the words from the beginning to “him” there shall be
substituted “Any power conferred on the Secretary of State”.
17
In section 19 of that Act[101] (interpretation), after subsection (2) there shall be
inserted –
“(2AA) In this Act ‘OFCOM’ means the Office of
Communications.”
18
In Schedule 1 to
that Act[102] (procedures in relation to wireless personnel), for paragraph 3
there shall be substituted –
“3 The Secretary of State is to pay –
(a) the expenses incurred
by an advisory committee under this Schedule, to the extent determined by him;
and
(b) such sums as he may
determine in respect of the expenses of the members of the committee.”
Coast
Protection Act 1949
* *
*
*
*
*
*
National
Parks and Access to the Countryside Act 1949
* *
*
*
*
*
*
London
County Council (General Powers) Act 1949
* *
*
*
*
*
*
Local
Government (Miscellaneous Provisions) Act 1953
* *
*
*
*
*
*
Army Act
1955
* *
*
*
*
*
*
Air
Force Act 1955
* *
*
*
*
*
*
Lough
Neagh and Lower Bann Drainage and Navigation Act (Northern Ireland) 1955
* *
*
*
*
*
*
Naval
Discipline Act 1957
* *
*
*
*
*
*
Opencast
Coal Act 1958
* *
*
*
*
*
*
Pipe-lines
Act 1962
* *
*
*
*
*
*
London
County Council (General Powers) Act 1963
* *
*
*
*
*
*
Harbours
Act 1964
* *
*
*
*
*
*
New
Towns Act (Northern Ireland) 1965
* *
*
*
*
*
*
Marine,
&c;., Broadcasting (Offences) Act 1967
32
* *
*
*
*
*
*
33
(1) Section
5 [of the Marine etc. Broadcasting (Offences) Act 1967][103] of that Act shall be further amended as follows.
(2) In
subsection (3) (offences of doing things with intent that an unlawful broadcast
may be made) –
(a) in paragraph (a),
for “with intent that a broadcast of it may” there shall be substituted
“knowing, or having reasonable cause to believe, that a broadcast of it is to”;
(b) in paragraph (b),
for “with intent that a broadcast of the work may” there shall be substituted
“knowing, or having reasonable cause to believe, that a broadcast of the work
is to”;
(c) in paragraph (c),
for “with intent that the work may” there shall be substituted “knowing, or
having reasonable cause to believe, that the work is to”.
(3) For
subsection (4) (presumption as to advertising) there shall be
substituted –
“(4) The cases in which a person is to be taken
for the purposes of this section as advertising by means of a broadcast include
any case in which he causes or allows it to be stated, suggested or implied
that entertainment included in the broadcast –
(a) has been supplied by
him; or
(b) is provided wholly or
partly at his expense.”
34
In section 6(5) of
that Act[104] (restrictions on prosecutions), after the words “otherwise than”,
wherever occurring, there shall be inserted “by OFCOM or”.
35
(1) Section 7A
of that Act[105] (powers of enforcement in relation to marine offences) shall be
amended as follows.
(2) In
subsection (1), after “the Secretary of State” there shall be inserted “or
OFCOM”.
(3) In
subsections (2) and (4), for “the Secretary of State has issued a written
authorisation” there shall be substituted “a written authorisation has been
issued by the Secretary of State or OFCOM”.
(4) In
subsection (3)(a), for “the Secretary of State has issued an
authorisation” there shall be substituted “an authorisation has been issued by
the Secretary of State or OFCOM”.
(5) In
subsection (7), after “powers” there shall be inserted “except so far as
exercisable by virtue of an authorisation issued by OFCOM”.
36
In section 9(1) of that
Act[106] (interpretation), after the definition of “the high seas” there
shall be inserted –
“ ‘OFCOM’ means the Office of Communications;”.
Wireless
Telegraphy Act 1967
* *
*
*
*
*
*
Countryside
Act 1968
*
*
*
*
*
*
*
Greater
London Council (General Powers) Act 1969
* *
*
*
*
*
*
Harbours
Act (Northern Ireland) 1970
* *
*
*
*
*
*
Thames
Barrier and Flood Prevention Act 1972
* *
*
*
*
*
*
Fair
Trading Act 1973
* *
*
*
*
*
*
Drainage
(Northern Ireland) Order 1973
* *
*
*
*
*
*
Water
and Sewerage Services (Northern Ireland) Order 1973
* *
*
*
*
*
*
Consumer
Credit Act 1974
* *
*
*
*
*
*
House of
Commons Disqualification Act 1975
* *
*
*
*
*
*
Northern
Ireland Assembly Disqualification Act 1975
* *
*
*
*
*
*
Welsh
Development Agency Act 1975
* *
*
*
*
*
*
Building
Regulations (Northern Ireland) Order 1979
* *
*
*
*
*
*
Local
Government, Planning and Land Act 1980
* *
*
*
*
*
*
Highways
Act 1980
* *
*
*
*
*
*
New
Towns Act 1981
* *
*
*
*
*
*
Acquisition
of Land Act 1981
* *
*
*
*
*
*
Housing
(Northern Ireland) Order 1981
* *
*
*
*
*
*
Civil
Aviation Act 1982
* *
*
*
*
*
*
Representation
of the People Act 1983
* *
*
*
*
*
*
Telecommunications
Act 1984
63
* *
*
*
*
*
*
[64
In sections 79 and 83 of
the Telecommunications
Act 1984 (wireless telegraphy provisions), for
the words “The Secretary of State” wherever occurring there shall be
substituted “OFCOM”.]
[65
After section 79(6)(a) of
that Act (seizure of apparatus) insert the following paragraph –
“(b) any proceedings for
forfeiture under Schedule 7 to the Communications Act 2003.”]
66
(1) Section
83 of that Act (disposal of seized apparatus and property) shall be further
amended as follows.
[(2) In subsection (1)(b), after “property” insert “or proceedings for
forfeiture under Schedule 7 to the Communications Act 2003.
(2A) In
subsection (2)(b), after “offences)” insert “or proceedings for forfeiture
under the said Schedule 7.]
(3) In
subsection (3), for “him” there shall be substituted “them”.
(4) In
subsection (4), for “he thinks” there shall be substituted “they think”.
67
* *
*
*
*
*
*
68
* *
*
*
*
*
*
69
(1) Section
91 of that Act (construction of references to the conclusion of proceedings)
shall be amended as follows.
(2) In
subsection (1), for “under the 1949 Act or for the forfeiture of any apparatus * * *”
there shall be substituted “to which section 79 above applies or for the
forfeiture of any apparatus under Schedule 7 to the Communications Act 2003”.
70
* *
*
*
*
*
*
71
* *
*
*
*
*
*
72
* *
*
*
*
*
*
73
* *
*
*
*
*
*
74
* *
*
*
*
*
*
75
* *
*
*
*
*
*
Cinemas
Act 1985
* *
*
*
*
*
*
Surrogacy
Arrangements Act 1985
* *
*
*
*
*
*
Bankruptcy
(Scotland) Act 1985
* *
*
*
*
*
*
Housing
Act 1985
* *
*
*
*
*
*
Airports
Act 1986
* *
*
*
*
*
*
Gas Act
1986
* *
*
*
*
*
*
Insolvency
Act 1986
* *
*
*
*
*
*
Company
Directors Disqualification Act 1986
* *
*
*
*
*
*
Channel
Tunnel Act 1987
* *
*
*
*
*
*
Consumer
Protection (Northern Ireland) Order 1987
* *
*
*
*
*
*
Income
and Corporation Taxes Act 1988
* *
*
*
*
*
*
Norfolk
and Suffolk Broads Act 1988
* *
*
*
*
*
*
Malicious
Communications Act 1988
* *
*
*
*
*
*
Copyright,
Designs and Patents Act 1988
* *
*
*
*
*
*
Housing
Act 1988
* *
*
*
*
*
*
Road
Traffic Act 1988
* *
*
*
*
*
*
Water
Act 1989
* *
*
*
*
*
*
Road
Traffic (Driver Licensing and Information Systems) Act 1989
* *
*
*
*
*
*
Electricity
Act 1989
* *
*
*
*
*
*
Local
Government and Housing Act 1989
* *
*
*
*
*
*
Insolvency
(Northern Ireland) Order 1989
* *
*
*
*
*
*
Town and
Country Planning Act 1990
* *
*
*
*
*
*
Planning
(Listed Buildings and Conservation Areas) Act 1990
* *
*
*
*
*
*
London
Local Authorities (No. 2) Act 1990
* *
*
*
*
*
*
New
Roads and Street Works Act 1991
* *
*
*
*
*
*
Coal
Mining Subsidence Act 1991
* *
*
*
*
*
*
Water
Industry Act 1991
* *
*
*
*
*
*
Water
Resources Act 1991
* *
*
*
*
*
*
Land
Drainage Act 1991
* *
*
*
*
*
*
Planning
(Northern Ireland) Order 1991
* *
*
*
*
*
*
Charities
Act 1992
* *
*
*
*
*
*
Carriage
of Goods by Sea Act 1992
* *
*
*
*
*
*
Electricity
(Northern Ireland) Order 1992
* *
*
*
*
*
*
Leasehold
Reform, Housing and Urban Development Act 1993
* *
*
*
*
*
*
Cardiff
Bay Barrage Act 1993
* *
*
*
*
*
*
Railways
Act 1993
* *
*
*
*
*
*
Roads
(Northern Ireland) Order 1993
* *
*
*
*
*
*
Value
Added Tax Act 1994
* *
*
*
*
*
*
Criminal
Justice and Public Order Act 1994
* *
*
*
*
*
*
Airports
(Northern Ireland) Order 1994
* *
*
*
*
*
*
Merchant
Shipping Act 1995
* *
*
*
*
*
*
Criminal
Procedure (Scotland) Act 1995
* *
*
*
*
*
*
British
Waterways Act 1995
* *
*
*
*
*
*
Street
Works (Northern Ireland) Order 1995
* *
*
*
*
* *
Housing
Act 1996
* *
*
*
*
*
*
Housing
Grants, Construction and Regeneration Act 1996
* *
*
*
*
*
*
Channel
Tunnel Rail Link Act 1996
* *
*
*
*
*
*
Gas
(Northern Ireland) Order 1996
* *
*
*
*
*
*
Construction
Contracts (Northern Ireland) Order 1997
* *
*
*
*
*
*
Waste
and Contaminated Land (Northern Ireland) Order 1997
* *
*
*
*
*
*
Wireless
Telegraphy Act 1998
145
Subject to any other
amendment made by any other provision of this Act, in sections 1 to 4 of the Wireless Telegraphy Act
1998[107] (c. 6), for the words “the Secretary of State”, “Secretary of
State” and “The Secretary of State”, wherever occurring, there shall be
substituted “OFCOM”.
146
In section 1 of that Act[108] (charges for wireless telegraphy licences) –
(a) in
subsection (2)(b), for “the issue or renewal of the licence” there shall be
substituted “the issue of the licence or the making of the grant”;
(b) in
subsection (3)(c), for the words “the Secretary of State thinks”, there shall
be substituted “OFCOM think”;
(c) in
subsection (4), for the words “he thinks”, there shall be substituted “they
think”; and
(d) in
subsection (5), at the end there shall be inserted “or any grant of recognised
spectrum access made in accordance with regulations under section 3A”.
147
For section 2 of that Act[109] there shall be substituted –
“2 Matters to be taken into account
(1) This section applies where OFCOM exercise
any of their powers under section 1 to prescribe sums payable in respect
of any description of wireless telegraphy licence or of grant of recognised
spectrum access, other than a power to prescribe sums payable where –
(a) a wireless telegraphy
licence is varied or revoked at the request or with the consent of the licence
holder; or
(b) a grant of recognised
spectrum access is varied or revoked at the request or with the consent of the
holder of the grant.
(2) OFCOM may, if they think fit in the light
(in particular) of the matters to which they are required to have regard under
section 154 of the Communications
Act 2003, prescribe sums which would be greater than those that would be
necessary for the purposes of recovering costs incurred by them in connection
with functions under the enactments relating to the management of the radio
spectrum.
(3) In this section –
‘the enactments relating to the management of the radio spectrum’
has the same meaning as in the Communications
Act 2003;
‘prescribe’ means prescribe by regulations or determine in
accordance with regulations.”
148
(1) Section
4 of that Act[110] (restriction on revocation or variation of licences) shall be
amended as follows.
(2) In
subsection (1), for the words “him” and “his” there shall be substituted,
respectively, “them” and “their”.
(3) In
subsection (5), for the word “him” there shall be substituted “them”.
149
(1) After
section 4 of that Act[111] there shall be inserted –
“4A Recovery of sums payable to OFCOM
Where any sum is required to be paid to OFCOM –
(a) under any provision of this Act,
(b) in pursuance of any provision of
regulations under this Act, or
(c) by virtue of any terms or conditions
contained by virtue of this Act in a wireless telegraphy licence, or in a grant
of recognised spectrum access,
that sum shall be so paid to them as soon as it becomes due in
accordance with that provision, or those terms or conditions, and if not paid
is to be recoverable by them accordingly.”
(2) This
paragraph does not apply to a sum that first became payable before the coming into
force of this paragraph.
150
For section 6 of that Act[112] there shall be substituted –
(1) Section 403 of the Communications Act 2003 (procedure
for regulations and orders made by OFCOM) applies to every power of OFCOM to
make regulations under a provision of this Act.
(2) * * * * *
(3) * * * * *
151
(1) Section
8 of that Act[113] (interpretation) shall be amended as follows.
(2) After
“In this Act –” there shall be inserted –
“ ‘grant of recognised spectrum access’ means a grant of recognised
spectrum access made under section 159 of the Communications Act 2003;
‘OFCOM’ means the Office of Communications;”.
(3) After
the definition of “wireless telegraphy licence” there shall be inserted –
“and references in this Act to the issue of a wireless telegraphy
licence or the making of a grant of recognised spectrum access include
references to the issue of such a licence, or the making of a grant of such
access, by way of renewal of a previous licence or grant.”
Finance
Act 1998
* *
*
*
*
*
*
Competition
Act 1998
* *
*
*
*
*
*
Regional
Development Agencies Act 1998
* *
*
*
*
*
*
Finance
Act 1999
* *
*
*
*
*
*
Greater
London Authority Act 1999
* *
*
*
*
*
*
Electronic
Communications Act 2000
* *
*
*
*
*
*
Television
Licences (Disclosure of Information) Act 2000
* *
*
*
*
*
*
Finance
Act 2000M
* *
*
*
*
*
*
Regulation
of Investigatory Powers Act 2000
* *
*
*
*
*
*
Postal
Services Act 2000
* *
*
*
*
*
*
Utilities
Act 2000
* *
*
*
*
*
*
Freedom
of Information Act 2000
*
*
*
*
*
*
*
Countryside
and Rights of Way Act 2000
* *
*
*
*
*
*
Transport
Act 2000
* *
*
*
*
*
*
Political
Parties, Elections and Referendums Act 2000
* *
*
*
*
*
*
Vehicles
(Crime) Act 2001
* *
*
*
*
*
*
Criminal
Justice and Police Act 2001
* *
*
*
*
*
*
Electronic
Communications Act (Northern Ireland) 2001
* *
*
*
*
*
*
Office
of Communications Act 2002
171
* *
*
*
*
*
*
172
(1) The
Schedule to that Act shall be amended as follows.
(2) The
following shall cease to have effect –
(a) * * * * *
(b) * * * * *
(c) paragraph 17(8) and (9);
and
(d) paragraph 20.
(3) * * * * *
(4) After
paragraph 14(3) (executive committees of OFCOM to include member or
employee of OFCOM) there shall be inserted –
“(3A) Sub-paragraph (3) has effect in the case
of a committee of OFCOM which –
(a) is not the Content
Board, but
(b) has functions that are
confined to functions falling within section 13(2) of the Communications Act 2003 (functions within the Content Board’s remit),
as if the reference in that sub-paragraph to a member of OFCOM
included a reference to a member of the Content Board who is not a member of
OFCOM.”
Tobacco
Advertising and Promotion Act 2002
* *
*
*
*
*
*
Enterprise
Act 2002
* *
*
*
*
*
*
Income
Tax (Earnings and Pensions) Act 2003
* *
*
*
*
*
*
SCHEDULE
18
Section 406
TRANSITIONAL
PROVISIONS
General
1
(1) This
paragraph applies where, at any time before the coming into force of a transfer
made by virtue of section 2 –
(a) any subordinate
legislation has been made in the carrying out of the transferred functions by
the person from whom the transfer is made; or
(b) any other thing has been
done by or in relation to that person for the purposes of or in connection with
the carrying out of those functions.
(2) The
subordinate legislation or other thing –
(a) is to have effect, on and
after the coming into force of the transfer, and so far as necessary for its
purposes, as if it had been made or done by or in relation to OFCOM; and
(b) in the case of
subordinate legislation to which section 403 applies when it is made by OFCOM,
shall so have effect as if made in accordance with the requirements of that
section.
(3) Where
any subordinate legislation, direction, authorisation or notice has effect in
accordance with this paragraph –
(a) so much of it as
authorises or requires anything to be done by or in relation to the person from
whom the transfer is made is to have effect in relation to times after the
coming into force of the transfer as if it authorised or required that thing to
be done by or in relation to OFCOM; and
(b) other references in the
subordinate legislation, direction, authorisation or notice to the person from
whom the transfer is made are to have effect, in relation to such times, as
references to OFCOM.
Steps
taken in anticipation of passing or coming into force of Act
2
(1) This
paragraph applies where the Secretary of State or OFCOM is or are
required –
(a) by a provision of this
Act, or
(b) by virtue of an amendment
made by this Act,
to take steps before
exercising a power or performing a duty.
(2) The
requirement is capable of being satisfied by the taking of the steps in
anticipation of effect being given to the provision by virtue of which the
power or duty is –
(a) conferred or imposed on
the Secretary of State or OFCOM; or
(b) transferred to OFCOM.
(3) For
the purposes of sub-paragraph (2) it is immaterial –
(a) that the provision by
virtue of which the power or duty is conferred, imposed or transferred had not
been enacted, or had not come into force, when the steps were taken; and
(b) in the case of steps
taken before the enactment of that provision, that the provision the effect of
which was anticipated was modified before being enacted.
(4) * * * * *
(5) Where
a requirement is satisfied by virtue of this paragraph by steps taken in
anticipation of effect being given to a provision –
(a) representations made to
or other things done in relation to OFCOM, or the Director or the Secretary of
State, in consequence of the taking of those steps, and
(b) any requirements framed
by reference to the time at which those steps were taken,
are to have effect as if
the provision in question had come into force before those steps were taken.
Savings
for agreements referring to the termination of a 1984 Act licence
* *
*
*
*
*
*
Saving
for agreements with special provision for 1984 Act licence holders
* *
*
*
*
*
*
General
saving for agreements conditional on certain Broadcasting Act licences
5
(1) This
paragraph has effect where an agreement in force immediately before the coming
into force of a provision of this Act removing a requirement for a relevant
Broadcasting Act licence provides –
(a) for the agreement to
cease to have effect, or
(b) for it to be capable of
being terminated,
if a party to the
agreement ceases to hold a relevant Broadcasting Act licence of a particular
description, or so ceases in a manner described in the agreement.
(2) In
this paragraph “relevant Broadcasting Act licence” means –
(a) a licence under Part 1
of the 1990 Act[114] to provide a satellite television service or a licensable programme
service;
(b) a licence under that Part
to provide the service mentioned in section 49(2) of that Act;[115]
(c) a licence under Part 2
of that Act[116] to provide a local delivery service; or
(d) a licence under Part 3
of that Act[117] to provide a formerly regulated radio service (within the meaning
of section 251 of this Act).
(3) The
agreement is not to cease to have effect, or to be capable of being terminated,
by reason only of the coming into force of the provisions of this Act under
which the requirement for the licence is removed.
(4) In
relation to times after the commencement of the provision of this Act removing
the requirement for a licence to provide a satellite television service or a
licensable programme service, a reference to such a licence in the provision of
the agreement in question is to have effect as a reference to a licence granted
or having effect as if granted as a licence to provide a television licensable
content service.
(5) In
relation to times after the commencement of the provision of this Act removing
the requirement for a licence to provide the service mentioned in section 49(2)
of the 1990 Act,[118] a reference to such a licence in the provision of the agreement in
question is to have effect as a reference to a licence to provide the public
teletext service.
(6) In
relation to times after the commencement of the provision of this Act removing
the requirement for a licence to provide a licensable sound programme service,
a reference to such a licence in the provision of the agreement in question is
to have effect as a reference to a licence to provide a radio licensable
content service.
(7) References
in this paragraph to a provision having effect if a person ceases to hold a
licence include references –
(a) to a provision having
effect if a licence of his expires without being renewed; and
(b) to a provision having
effect if his licence is revoked.
(8) Expressions
used in this paragraph and in Part 3 of this Act have the same meanings in
this paragraph as in that Part.
Orders
under Part 2 of the Deregulation and Contracting Out Act 1994
* *
*
*
*
*
*
Pre-commencement
proposals relating to universal service matters
* *
*
*
*
*
*
Local
loop notifications
* *
*
*
*
*
*
Conditions
relating to premium rate services and conditions corresponding to SMP or
access-related conditions
* *
*
*
*
*
*
Pre-commencement
proposals relating to market power determinations
* *
*
*
*
*
*
Savings
for licence conditions relating to accounting
* *
*
*
*
*
*
Charges
under Telecommunications Act licences
* *
*
*
*
*
*
Enforcement
of breaches of licence conditions
* *
*
*
*
*
*
Saving
for agreements having effect by reference to licensing regime
* *
*
*
*
*
*
Fees for
approvals for the purposes of licence conditions
* *
*
*
*
*
*
Allocated
telephone numbers
* *
*
*
*
*
*
Electronic
communications code
* *
*
*
*
*
*
Saving
for guarantees of liabilities of telecommunications code operators
* *
*
*
*
*
*
Compulsory
purchase
* *
*
*
*
*
*
Notices
under section 1D of the Wireless Telegraphy Act 1949
* *
*
*
*
*
*
Notices
under regulations under section 3 of the Wireless Telegraphy Act 1998
21
(1) This
paragraph applies to procedures set out in a notice issued by the Secretary of
State under regulations under section 3 of the Wireless Telegraphy Act 1998[119] (c. 6) and in force immediately before the commencement of section
167 of this Act.
(2) In
relation to times after the commencement of section 167 of this Act, the
procedures are to have effect as if prescribed by OFCOM by regulations under
section 3 of that Act.[120]
(3) So
much of any notice having effect in accordance with this paragraph as
authorises or requires anything to be done by or in relation to the Secretary
of State is to have effect in relation to times after the commencement of
section 167 of this Act as if it authorised or required that thing to be done
by or in relation to OFCOM.
Disputes
about interconnection
* *
*
*
*
*
*
Appeals
against wireless telegraphy and telecommunications decisions
23
(1) This
paragraph applies where –
(a) a decision was made
before the commencement of section 192;
(b) the decision has effect
after the commencement of a provision of this Act as a decision made by OFCOM,
or is a decision not to do something which (if done) would so have had effect;
and
(c) the decision is one
against which an appeal was or could have been brought under –
(i) section 1F of the Wireless Telegraphy Act
1949[121] (c. 54);
* * *
(ii) * * * * *
(2) If
no such appeal has been brought before the commencement of section 192 of
this Act, that section applies to the decision as it applies to decisions by
OFCOM under Part 2 of this Act (or that Act of 1949), but as if that section
had been in force when the decision was made.
(3) If
an appeal under section 1F of that Act of 1949[122] or section 46B of the 1984 Act –
(a) has been brought against
the decision, but
(b) has not been concluded
before the commencement of section 192 of this Act,
the court in which it was
brought may stay or sist the appeal as from the commencement of that section of
this Act.
(4) If
the court stays or sists the appeal under sub-paragraph (3), the appellant
is to have a new right of appeal under section 192 against the decision as if
(subject to sub-paragraph (7)) it were a decision to which that section
applies that had been made immediately after the commencement of that section.
(5) [Royal
Court] rules (within the meaning of Chapter 3 of Part 2 of this Act)
may, in relation to an appeal stayed or sisted under sub-paragraph (3),
make transitional provision –
(a) for requiring steps taken
and things done for the purposes of that appeal to be taken into account, to
the extent set out in the rules, in the case of an appeal brought by virtue of
sub-paragraph (4); and
(b) for enabling the [Royal
Court] in an appeal under sub-paragraph (4) to give directions to OFCOM as
to the carrying out of functions of theirs that are the same as or correspond
to those in the course of carrying out which the maker of the appealed decision
made that decision.
(6) If,
in a case falling within sub-paragraph (3), the court does not stay or
sist the appeal –
(a) it must determine the
appeal in the manner in which the [Royal Court] is required under section 195
of this Act to determine an appeal under section 192; but
(b) its powers on determining
the appeal include a power to give directions to OFCOM as to the carrying out
of any functions of theirs that correspond to those in the course of which the
appealed decision was made.
(7) On
an appeal brought or continued under this paragraph against a decision, the
court or the [Royal Court], in determining what was the appropriate action for
the maker of the decision to take, must determine that question according to
the law in force at the time when the decision was made.
Section
94 of the Telecommunications Act 1984
* *
*
*
*
*
*
Competition
Commission: specialist panel members
* *
*
*
*
*
*
Transitory
amendments to telecommunications terms in Broadcasting Act 1990
26
(1) This
paragraph has effect, in the case of each of the provisions of the 1990 Act to
which it applies, in relation to times between –
(a) the commencement of
Chapter 1 of Part 2 of this Act; and
(b) the commencement of so
much of this Act (apart from this paragraph) as amends or repeals that
provision.
(2) The
provisions of the 1990 Act set out in sub-paragraph (3) shall have effect
(subject to sub-paragraph (4)) as if –
(a) for every reference to a
telecommunication system there were substituted a reference to an electronic
communications network; and
(b) for references to running
such a system there were substituted references to providing it.
(3) Those
provisions of the 1990 Act are –
(a) section
46[123] (licensable programme services);
(b) section 51(1)(a)[124] (procedures for consideration of applications for additional
services licences);
(c) section 72[125] (local delivery services);
(d) section 75[126] (procedures for consideration of applications for local delivery
licences);
(e) section 112[127] (licensable sound programme services);
(f) section 117(1)(a)[128] (procedures for consideration of applications for additional
services licences);
(g) section 181[129] (apparatus deemed to be apparatus for wireless telegraphy).
(4) Sections
46(2) (licensable programme services), 112(2) (licensable sound programme
services) and 201(2) (programme services) of the 1990 Act[130] shall each have effect as if for paragraph (b) there were
substituted –
“(b) a service which
satisfies the conditions in section 233(5) of the Communications Act 2003;”.
(5) In
sections 48 and 114 of the 1990 Act[131] (additional services), references to electronic signals shall have
effect as references to signals within the meaning of section 32 of this Act.
(6) Section 75(2)
of the 1990 Act[132] (consultation with relevant licensing authorities) shall have
effect as if in paragraph (b) for the words “would be required to be
licensed” there were substituted “is a system which (but for repeals made by
the Communications Act 2003)
would have been required to be licensed”.
(7) In
section 181 of the 1990 Act[133] (apparatus deemed to be apparatus for wireless telegraphy),
“connected” –
(a) shall continue to be
construed in accordance (notwithstanding its repeal) with section 4 of the 1984
Act; but
(b) shall be so construed as
if, in that section of the 1984 Act, a reference to an electronic
communications network were substituted for every reference to a
telecommunication system.
(8) * * * * *
Activities
of the Welsh Authority
* *
*
*
*
*
*
Gaelic
Broadcasting
* *
*
*
*
*
*
Pre-transfer
Broadcasting Act licences
30
(1) Subject
to any express provision made by this Act in relation to a particular
description of Broadcasting Act licence, neither –
(a) the transfer from a
pre-commencement regulator to OFCOM of the function of granting or awarding
such licences or of any other power exercisable in relation to such licences,
nor
(b) any other modification by
or by virtue of this Act of the power to grant or award such licences or of a
provision having effect in relation to such licences,
shall affect the
continuing validity of a licence by or under which the provision of a service
is authorised immediately before the coming into force of the transfer or
modification.
(2) Accordingly,
such a licence shall continue to have effect, after the coming into force of
the transfer or modification –
(a) on the same terms and
conditions and for the same period as it would have done if this Act had not
been passed; but
(b) as if, in relation to
times after the coming into force of any relevant transfer of functions to
OFCOM, every reference in the licence to a pre-commencement regulator were a
reference to OFCOM.
(3) Sub-paragraph (2)
is subject to the following provisions of this Act –
(a) those under which a
licence is to have effect as if the period for which it is granted were the
period determined under this Act; and
(b) those under which the
conditions of a licence fall to be varied for the purpose of imposing a
condition required by this Act.
(4) Anything
done at any time before the relevant transfer date under or for the purposes of
enforcing any provision of a Broadcasting Act licence is to have effect in
relation to times on or after that date –
(a) to the extent that it was
done by or in relation to the ITC or Radio Authority, and
(b) so far as necessary for
preserving its effect or for facilitating the taking of further action by
OFCOM,
as a thing done by or in
relation to OFCOM.
(5) In
sub-paragraph (4) “relevant transfer date” –
(a) in relation to licences
under Part 1 of the 1990 Act[134] or Part 1 of the 1996 Act, means the television transfer date;
and
(b) in relation to licences
under Part 3 of the 1990 Act[135] or Part 2 of the 1996 Act, means the radio transfer date.
Channels
3 and 5
31
A determination made by
the ITC under or for the purposes of section 14 or 28 of the 1990 Act[136] (Channels 3 and 5) is to have effect on and after the television
transfer date as a determination under that section by OFCOM.
Saving
pending replacement of licences for Channels 3 and 5 and the public
teletext service
32
(1) The
regulatory regime for a Channel 3 service, and that for Channel 5 and the
existing teletext service, shall not include the self-regulation conditions in
any case in which the service or (as the case may be) Channel 5 is
provided under a licence granted before the television transfer date.
(2) In
sub-paragraph (1) “the self-regulation conditions” means the conditions
which (apart from that sub-paragraph) are included by virtue of sections 265 to
269 of this Act in the regulatory regime for Channel 3 services, for
Channel 5 and for the public teletext service.
(3) In
relation to a licence granted before the television transfer date for a
Channel 3 service, Channel 5 or the existing teletext service, section 263
shall have effect as if the reference in subsection (3)(a) of that section to a
corresponding or additional service to be provided in analogue form were a
reference to a corresponding or additional service to be provided in digital
form.
(4) In
this paragraph “the existing teletext service” means the existing service
within the meaning of section 221 of this Act.
Digital
additional licences
33
(1) This
paragraph applies where immediately before the coming into force of section 242
of this Act a person holds a digital additional services licence under Part 1
of the 1996 Act in respect of a digital sound programme service and with a view
to the inclusion of the broadcasting of that service by means of a television
multiplex service licensed under Part 1 of the 1996 Act.
(2) The
licence is to have effect on and after the coming into force of
section 242 of this Act as if it were a national digital sound programme
licence or (as the case may be) were comprised in any national digital sound
programme licence already held by the licence holder for the service in
question.
(3) Where
a licence has effect in accordance with this paragraph, it shall not (to the
extent that it so has effect) authorise the broadcasting of the digital sound
programme service in question by means of a radio multiplex service.
(4) In
this paragraph –
“digital additional
services licence” has the same meaning as in Part 1 of the 1996 Act; and
“national digital sound
programme licence” has the same meaning as in Part 2 of that Act.
Programme
quotas
34
Any order which –
(a) was
made under section 16(5)(a) of the 1990 Act (definitions of “qualifying
programmes” and “independent productions”), and
(b) is
in force immediately before the commencement of sections 277 and 309 of this
Act and paragraphs 1 and 7 of Schedule 12 to this Act,
is to have effect in
relation to times after the commencement of those sections and those paragraphs
as an order made in exercise of the corresponding powers conferred by those
sections and those paragraphs.
Continuity
in relation to appointed news provider
35
Where a body holds an
appointment for the purposes of section 31(2) of the 1990 Act[137] immediately before the date of the commencement of section 280 of
this Act –
(a) that
appointment shall have effect in relation to times on and after that date as an
appointment for the purposes of arrangements entered into in accordance with
conditions imposed under section 280 of this Act;
(b) the
arrangements under which that appointment was made shall have effect in
relation to such times as arrangements so entered into; and
(c) so
much of the appointment or arrangements, or of any agreement to which the body
is a party, as makes provision by reference to the body’s ceasing to be
nominated under section 32 of the 1990 Act[138] shall have effect in relation to such times as if references to
ceasing to be so nominated were references to becoming a body falling within
section 281(2) of this Act.
Networking
arrangements
36
(1) Where
arrangements approved for the purposes of section 39 of the 1990 Act[139] (networking arrangements) are in force immediately before the
commencement of section 291 of this Act, those arrangements are to have effect
for the purposes of this Act, and of any conditions imposed under that section
of this Act, as approved networking arrangements.
(2) For
the purposes of proceedings in relation to a report under Schedule 4 to
the 1990 Act[140] at any time after the commencement of Schedule 11 to this Act,
that report is to have effect as if it were a report under that Schedule to
this Act.
Determination
of qualifying revenue
37
(1) A
statement of the ITC that is for the time being in force immediately before the
television transfer date for the purposes of –
(a) Schedule 7 to the
1990 Act[141] (statement of principles for determining qualifying revenue), or
(b) Schedule 1 to the
1996 Act (corresponding statement for the purposes of that Act,
is to have effect on and
after that date as a statement by OFCOM.
(2) On
and after the television transfer date a determination by the ITC under
paragraph 2 of Part 1 of either of those Schedules is to have effect as a
determination under that paragraph by OFCOM, and sub-paragraph (2) of that
paragraph is to have effect accordingly.
Rules
for political broadcasts
* *
*
*
*
*
*
Functions
under section 88 of the 1990 Act
39
A requirement imposed or
notice given before the radio transfer date by the Radio Authority under
section 88 of the 1990 Act[142] (restriction on holding of licences) is to have effect on and after
that date as if it were imposed or given by OFCOM.
Notices
under section 94 of the 1990 Act
40
A notice given by the
Secretary of State or any other Minister of the Crown under section 94 of the
1990 Act[143] (government control over licensed services) is to have effect on
and after the radio transfer date as a notice given to OFCOM under section 336
of this Act.
Programme
standards: television
41
(1) This
paragraph applies as respects times on or after the television transfer date
and before the first coming into force, in the case of the holder of a licence
under Part 1 of the 1990 Act[144] or Part 1 of the 1996 Act, of conditions imposed under section
325 of this Act.
(2) Sections
6 to 12 of the 1990 Act[145] (general provisions about the content of licensed services) are to
have effect in the case of that licence holder as if references in those
sections to the ITC were references to OFCOM.
(3) A
code drawn up by the ITC under section 6, 7 or 9 of the 1990 Act[146] is to have effect as if it had been drawn up by OFCOM.
Programme
standards: radio
42
(1) This
paragraph applies as respects times on or after the radio transfer date and
before the first coming into force, in the case of the holder of a licence
under Part 3 of the 1990 Act[147] or Part 2 of the 1996 Act, of conditions imposed under section
325 of this Act.
(2) Sections
90 to 96 of the 1990 Act[148] (general provisions about the content of licensed services) are to
have effect as if references in those sections to the Radio Authority were
references to OFCOM.
(3) A
code drawn up by the Radio Authority under section 90, 91 or 93 of the 1990 Act[149] is to have effect as if it had been drawn up by OFCOM.
Standards
code
43
(1) In
relation to any time after the commencement of section 319 of this Act, a code
in force immediately before its commencement as a code drawn up under section
6, 7, 9, 90, 91 or 93 of the 1990 Act[150] or section 108 of the 1996 Act is to have effect (subject to
sub-paragraphs (2) and (3)) as if it were a code issued by OFCOM for the
purpose of setting standards under section 319 of this Act.
(2) A
code under the 1990 Act shall have effect by virtue of sub-paragraph (1)
in relation only to the following –
(a) in the case of the codes
under sections 6, 7 and 9, services the provision of which is authorised by
licences under Part 1 of the 1990 Act[151] and S4C; and
(b) in the case of the codes
under sections 90, 91 and 93, services the provision of which is authorised by
licences under Part 3 of that Act.[152]
(3) In
the case of the code under section 108 of the 1996 Act, the code shall have
effect by virtue of sub-paragraph (1) –
(a) in relation only to
services provided by the BBC
* * *;
and
(b) to the extent only that
it contains provision that applies to those services
* * *.
Local
and national radio licences
44
(1) Section
103 of the 1990 Act[153] (restriction on changes of control affecting holders of national
licences) is to apply in relation to a pre-transfer national licence as it
applies in relation to a national licence within the meaning of Part 3 of
the 1990 Act.[154]
(2) Anything
done by or in relation to the Radio Authority under any of sections 98 to 102
or 103A of the 1990 Act,[155] so far as it has been done –
(a) before the radio transfer
date, and
(b) for the purposes of, or
in connection with, the grant or renewal of a pre-transfer national licence,
is to have effect for the
purposes of, and in connection with, the grant or renewal of a licence at times
on or after that date as if done by or in relation to OFCOM in connection with
or for the purposes of the grant or renewal of national licence (within the
meaning of Part 3 of that Act[156]).
(3) Anything
done by or in relation to the Radio Authority under any of sections 104 to 105
of the 1990 Act,[157] so far as it has been done –
(a) before the radio transfer
date, and
(b) for the purposes of, or
in connection with, the grant or renewal of a pre-transfer local licence,
is to have effect for the purposes
of, and in connection with, the grant or renewal of a licence at times on or
after that date as if done by or in relation to OFCOM in connection with, or
for the purposes of, the grant or renewal of local licence (within the meaning
of Part 3 of that Act[158]).
(4) In
this paragraph “pre-transfer local licence” and “pre-transfer national licence”
each has the same meaning as in section 253 of this Act.
Section
111B of the 1990 Act
* *
*
*
*
*
*
Section
185 of the 1990 Act
46
(1) A
determination or nomination made for the purposes of section 185 of the 1990
Act[159] (the national television archive) by the ITC is to have effect on
and after the television transfer date as a determination or nomination made by
OFCOM.
(2) Sub-paragraph (1)
applies in the case of a determination so far only as it relates to a financial
year beginning on or after the television transfer date.
Section
28 of the 1996 Act
47
(1) The
repeal by this Act of section 28 of the 1996 Act does not affect any power to
vary a licence under Part 1 of the 1990 Act[160] which is –
(a) conferred on the ITC by
an order under that section; and
(b) transferred to OFCOM by
this Act.
(2) Nor
does it affect so much of any order under that section in force immediately
before the repeal as –
(a) modifies section 16 of
the 1996 Act in its application in relation to the renewal of a licence first
granted before the television transfer date; or
(b) imposes a prohibition on
the use of digital capacity reserved before that date;
but so much of any such
prohibition as requires the consent of the ITC for the use of any digital
capacity shall have effect after the television transfer date as if the consent
required were OFCOM’s consent.
(3) Sub-paragraph (1)
only saves the power so far as it is exercisable in relation to a licence
granted before the television transfer date.
Section
48 of the 1996 Act
48
Subsections (4) to (6) of
section 48 of the 1996 Act (reservations of capacity for national radio
multiplex licences to independent national broadcasters) are to apply in
relation to conditions included in pursuance of that section in licences
granted before the radio transfer date as they apply in relation to conditions
included in licences by virtue of the amendments of that section made by this
Act.
Applications
for extension of pre-transfer licences
49
(1) Section
253(4)(a) does not prevent the determination by OFCOM of a day falling less
than one year after the making of the determination where –
(a) OFCOM consider that the
day by which they would need to publish a notice is a day which is not more
than 15 months after the commencement date; and
(b) the determination of that
day is made as soon as practicable after the commencement date.
(2) Where
the day determined by OFCOM for the purposes of paragraph (b) of section
253(3) is a day in the period of three months beginning with the day after the
determination, that paragraph shall have effect as if for the words “three
months before” there were substituted “on”.
(3) In
this paragraph, the “commencement date” is the date on which section 253
comes into force.
Applications
for renewal of licences under 1990 Act and 1996 Act
50
(1) A
provision set out in sub-paragraph (2) does not prevent the determination
by OFCOM of a date falling less than one year after the making of the
determination where –
(a) OFCOM consider that the
relevant date for the purposes of the section in question is a date which is
not more than 15 months after the commencement date; and
(b) the determination of the
relevant date is made as soon as practicable after the commencement date.
(2) Those
provisions are –
(a) section 53(12) of the
1990 Act;[161]
(b) section 103A(12) of the
1990 Act;[162]
(c) section 104A(14) of the
1990 Act;[163]
(d) section 16(12A) of the
1996 Act;
(e) section 58(12A) of the
1996 Act.
(3) An
application which is made before the commencement date in accordance with a
provision set out in sub-paragraph (5) shall be treated after that date as
if it had been made in accordance with that provision as amended by this Act.
(4) Where,
in a case where a provision set out in sub-paragraph (5) applies, the
relevant date for the purposes of the section in question is a date in the
period of three months beginning with –
(a) the commencement date, or
(b) the day after the day on
which the relevant date is determined,
that provision shall have
effect as if the words “the day falling three months before” were omitted.
(5) Those
provisions are –
(a) section 53(2) of the 1990
Act;[164]
(b) section 103A(2) of the
1990 Act;[165]
(c) section 104A(3) of the
1990 Act;[166]
(d) section 16(3) of the 1996
Act;
(e) section 58(3) of the 1996
Act.
(6) In
this paragraph, the “commencement date”, in relation to any provision set out
in sub-paragraph (2) or (5) is the date on which the provision of Schedule 15
inserting or amending that provision comes into force.
Listed
events rules
51
(1) Subject
to sub-paragraph (2), Part 4 of the 1996 Act (sporting and other
events of national interest) is to have effect in relation to times on or after
the television transfer date as if anything done before that date by or in
relation to the ITC had been done by or in relation to OFCOM.
(2) The
code drawn up by the ITC under section 104 of the 1996 Act (code of guidance as
to the operation of Part 4) and in force immediately before the
commencement of section 301 of this Act is to continue to have effect
(notwithstanding the substitutions made by that section of this Act) –
(a) until the code drawn up
by OFCOM under that section comes into force; but
(b) in relation to times on
or after the transfer date and before the coming into force of OFCOM’s code, as
if references in section 104(2) of that Act and in the code to the ITC
were references to OFCOM.
(3) If
a provision of sections 300 to 302 of this Act comes into force before the
television transfer date, a reference to OFCOM in an amendment made by that
provision is to be construed in relation to times before that date as a
reference to the ITC.
(4) On
the date on which section 300 of this Act comes into force, the Secretary of
State shall revise the list maintained for the purposes of Part 4 of the
1996 Act in order to allocate each event which is a listed event on that date
either to Group A or to Group B.
(5) Where –
(a) the events listed in the
list in force immediately before the Secretary of State revises it under
sub-paragraph (4) are treated, for any of the purposes of the code in
force under section 104 of the 1996 Act at that time, as divided into two
categories, and
(b) the Secretary of State’s
revision under that sub-paragraph makes the same division,
section 97(2) of the 1996
Act shall not apply in relation to that revision of that list.
(6) In
this paragraph “the transfer date” is the date on which paragraph 13 of
Schedule 1 comes into force.
Complaints
to the Broadcasting Standards Commission
52
(1) On
and after the transfer to OFCOM under this Act of the functions of the
Broadcasting Standards Commission under Part 5 of the 1996 Act, that Part
is to have effect in relation to a fairness complaint made to, but not disposed
of by, the Commission before the transfer as if –
(a) anything done, or treated
as done, by or in relation to the Commission for the purposes of, or in
connection with, that complaint had been done by or in relation OFCOM; and
(b) those functions had been
functions of OFCOM at the time when it was done.
(2) Where
immediately before the commencement of section 327 of this Act a licence to
provide a licensed service (within the meaning of Part 5 of the 1996 Act)
contains a condition included in that licence by virtue of section 119(7) of
that Act (conditions requiring compliance with BSC directions), that condition
is to have effect on and after the coming into force of section 327 of this Act
as a condition requiring the licence holder to comply with directions given to
him by OFCOM.
(3) In
this paragraph “fairness complaint” has the same meaning as in Part 5 of
the 1996 Act.
Codes of
practice drawn up by the Broadcasting Standards Commission
53
The code of practice
drawn up by the Broadcasting Standards Commission under section 107 of the 1996
Act (code in respect of unjust and unfair treatment and infringements of
privacy) is to have effect on and after the transfer under this Act to OFCOM of
the Commission’s functions under Part 5 of that Act as if it were the code
required to be drawn up under that section by OFCOM.
Media
ownership provisions
54
(1) Part 4
of Schedule 14 to this Act is to have effect –
(a) in relation to times
before the television transfer date as if references to OFCOM were, in relation
to licences under Part 1 of the 1990 Act[167] or Part 1 of the 1996 Act, references to the ITC; and
(b) in relation to times
before the radio transfer date as if references to OFCOM were, in relation to
licences under Part 3 of the 1990 Act[168] or Part 2 of the 1996 Act, references to the Radio Authority.
(2) A
determination by the ITC or the Radio Authority under paragraph 2(2) of Part 2
of Schedule 2 to the 1990 Act[169] which is in force immediately before the commencement of Part 4
of Schedule 14 to this Act is to have effect on and after its commencement
as a determination under paragraph 15 of that Schedule to this Act.
(3) Any
guidance issued by the ITC and the Radio Authority under paragraph 2(3) of
Part 2 of Schedule 2[170] to the 1990 Act and in force immediately before the commencement of
Part 4 of Schedule 14 to this Act is to have effect on and after its
commencement as guidance published under paragraph 15(4) of that Schedule to
this Act.
(4) Anything
done under paragraph 15 of Schedule 14 by the ITC or the Radio
Authority which is in force immediately before the relevant transfer date is to
have effect on and after that date as if done under that paragraph by OFCOM.
(5) The
following powers under enactments in force before the relevant transfer date
shall be exercisable by OFCOM at all times on or after that date in relation to
a pre-commencement contravention of a requirement imposed by or under Parts 3
to 5 of Schedule 2 to the 1990 Act[171] –
(a) all the powers and duties
of the ITC under section 5 of the 1990 Act and section 5 of the 1996 Act;
(b) all the powers and duties
of the Radio Authority under section 88 of the 1990 Act[172] and section 44 of the 1996 Act; and
(c) all the other powers and
duties of the ITC or the Radio Authority in relation to contraventions of
conditions imposed under section 5 or 88 of the 1990 Act[173] or section 5 or 44 of the 1996 Act.
(6) For
the purpose of determining whether anything occurring after the relevant
transfer date is a pre-commencement contravention of a requirement imposed by
or under Parts 3 to 5 of Schedule 2 to the 1990 Act,[174] references in those Parts of that Schedule to the ITC or to the
Radio Authority are to be construed as including references to OFCOM.
(7) In
this paragraph –
“pre-commencement
contravention” means a contravention of a requirement which occurred before the
coming into force of the repeal by this Act of the provision by or under which
the requirement was imposed; and
“the relevant transfer
date” –
(a) in relation to the ITC,
means the television transfer date; and
(b) in relation to the Radio
Authority, means the radio transfer date.
TV
licences
55
A television licence
granted under the Wireless Telegraphy Act 1949
(c. 54) before the coming into force of section 363 of this Act is to have
effect after the commencement of that section as a licence for the purposes of
that section.
Functions
under the Enterprise Act 2002
* *
*
*
*
*
*
Functions
under the Competition Act 1998
* *
*
*
*
*
*
Newspaper
mergers
* *
*
*
*
*
*
Orders
in Council under section 6 of the Continental Shelf Act 1964
* *
*
*
*
*
*
Interpretation
of Schedule
* *
*
*
*
*
*
SCHEDULE
19
Section 406
REPEALS
(1) Enactments
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Short title and chapter
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Extent of repeal
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Wireless Telegraphy Act 1949 (c. 54)
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In section 1[175] –
(a) * * * * *
(b) in subsection (4), the words “other than a
television licence” and the words from “; and a television licence” onwards;
(c) subsections
(6) and (7).
Section 1D(1), (2), (7) and (8).
*
* * * *
Section 2.[176]
In section 3(1),[177]
the words after paragraph (d) from “and different” to “classes of case:”.
Section 9.[178]
In section 10(2),[179]
the words after paragraph (b).
In section 11(1)[180] –
(a) paragraph (i) of the proviso;
(b) in paragraph (ii) of the proviso the words
“, and paragraph (i) of this proviso shall not apply”.
Section 14(1A)(e), (2) and (3)(b).[181]
Section 15(4)(c)[182]
and the word “or” immediately preceding it.
Section 19(2A) and (9).[183]
Schedule 2.[184]
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Marine, &c., Broadcasting (Offences) Act 1967 (c. 41)
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Section 6(2) and (7).[185]
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Telecommunications Act 1984 (c. 12)
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*
* * * *
In section 91 –
(a) in subsection (2), the words “or section
80(9)(b) above” and the words “for an offence or (as the case may be) for the
forfeiture of any apparatus under that section”;
(b) in subsection (4), the words “and in
section 80(9)(b) above”.
Section 92(4).
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Broadcasting Act 1990 (c. 42)
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Sections 1 and 2.[186]
In section 4(3),[187]
the words from “and the amount” onwards.
In section 5[188] –
(a) subsection
(6A)(a);
(b) subsection
(6B).
Sections 6 to 12.[189]
In section 15(3),[190]
paragraphs (c) to (e).
In section 16[191] –
(a) subsections
(2) and (3);
(b) in subsection (4), the words from
“; and in applying” onwards;
(c) subsections
(5) to (8).
Section 20.[192]
Section 21A.[193]
In section 24,[194]
subsections (4) to (6).
Sections 25 to 27.[195]
In section 29[196] –
(a) in subsection (2), paragraph (b) and the
word “and” immediately preceding it;
(b) subsection (3).
Sections 30 to 36.[197]
Sections 38 and 39.[198]
In section 42A,[199]
paragraph (b) and the word “and” immediately preceding it.
Chapters 3
* * *
of Part 1.[200]
Section 48(5).[201]
In section 50[202] –
(a) in subsection (1)(b)(ii), the words
“(subject to the approval of the Secretary of State)”;
(b) subsection (7).
Section 51(2) and (7).[203]
In section 53(4),[204]
the words “before the relevant date”.
Section 54(2)[205]
*
* * * *
*
* * * *
Section 59.[206]
*
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*
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*
* * * *
Section 65.[207]
In section 66A(2),[208]
paragraphs (c) and (d).
Sections 68 to 70.[209]
In section 71(1)[210] –
(a) in the definition of “Channel 3”, the words
“by the Commission”;
(b) the definitions of “the Commission”,
“licensable programme service” and “satellite television service”.
Part 2.[211]
Sections 83 and 84.[212]
In section 85,[213]
subsections (3) and (4).
In section 87[214] –
(a) in subsection (2)(b),
sub-paragraph (ii) and the word “or” immediately preceding it;
(b) in subsection (3), the words from “and the
amount” onwards.
In section 88[215] –
(a) subsection (6A)(a); and
(b) subsection (6B).
Section 89(2).[216]
Sections 90 to 96.[217]
In section 98(3)(a),[218]
the word “both” and sub-paragraph (ii) and the word “and” immediately
preceding it.
In section 99(1)(a),[219]
the word “both” and sub-paragraph (ii) and the word “and” immediately
preceding it.
In section 103A[220] –
(a) in subsection (3), the words “before the
relevant date”, paragraph (a) and, in paragraph (b), the words “in any other
case”;
(b) in subsection (8), the words from “(whether
because” to “any other reason)”;
(c) subsection (10);
(d) in subsection (11), the definition of
“simulcast radio service”.
In section 104A(5),[221]
at the end of paragraph (a), the word “and”.
In section 104B[222] –
(a) subsection (1)(b);
(b) subsections (6) and (7).
In section 106(1),[223]
the words from “, except” onwards.
Sections 106A to 108.[224]
Section 110(7).[225]
Sections 112 and 113.[226]
Section 114(5).[227]
In section 116(1)(b)(iii),[228]
the words “(subject to the approval of the Secretary of State)”.
Section 117(2) and (7).[229]
Section 119(2).[230]
Section 122 to 125.[231]
In section 126(1),[232]
the definitions of “assigned frequency”, “the Authority” and “licensable
sound programme service”.
*
* * * *
In section 177(6),[233]
the definition of “relevant foreign satellite service”.
Section 180(2) and (3).[234]
Section 181.[235]
*
* * * *
In section 185(5),[236]
the definition of “the Commission”.
Section 186.[237]
*
* * * *
*
* * * *
*
* * * *
In section 196[238] –
(a) in subsection (1)(a), the words
“, 82”;
(b) subsection (2).
Section 197.[239]
Section 199(1) to (4) and (6).[240]
In section 201(1),[241]
the words “under this Act”.
In section 202[242] –
(a) in subsection (1), the definition of
“telecommunication system”;
(b) in subsection (2)(b), the words “1” and
“8”;
(c) in subsection (5)(a), the words “for
general reception, or”.
Schedule 1.[243]
In Part 1 of Schedule 2[244] –
(a) in paragraph 1(1), the definitions of
“coverage area”, of “digital programme service”, of “local delivery licence”
and “local delivery service”, of “local digital sound programme service” and
“national digital sound programme service”, of “local radio multiplex
service” and “national radio multiplex service” and of “television multiplex
service”;
(b) paragraph 1(8);
(c) paragraph 3A;
(d) paragraph 3B;
(e) paragraph 4.
In Part 2 of Schedule 2[245] –
(a) paragraph 1(1)(a) and (b);
(b) in paragraph 1(1)(j)(i), the words “(a),
(b) or”;
(c) paragraph 1(2) and (3);
(d) in paragraph 5A(1)(a), the words “granted
by the Commission”;
(e) paragraph 5A(1)(b) and the word “and”
immediately preceding it;
(f) in paragraph 5A(2), the words “granted by
the Authority”;
(g) paragraph 5A(3).
Parts 3 to 5 of Schedule 2.[246]
Schedule 4.[247]
Schedule 5.[248]
*
* * * *
Schedule 8.[249]
*
* * * *
In Schedule 18[250] –
(a) in Part 1, paragraphs 1(4) to (6), 2(1) and
(3) and 4;
(b) * * * * *
* * * * *
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Broadcasting Act 1996 (c. 55)
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Section *
* * (3).
Section 2(1), (6) and (7).
In section 4(3), the
words from “and the amount” onwards.
Section 5(7)(a).
Section 6.
In section 11(5),
the words from “not exceeding” onwards.
Section 12(7).
In section 16(6),
the words “before the relevant date”.
Section 18(5) and (6).
Section 19(2) and (4) to (10).
Sections 20 [and] 22.
Section 25(5) and (6).
Section 28.
*
* * * *
Sections 30 and 31.
In section 33(3)(c), the words “or II”.
Section 34.
Section 38.
In section 39(1),
the definitions of “the Commission” and “qualifying teletext service”.
In section 40(4),
the words “provided on a frequency or frequencies assigned to the Authority
under section 45(1)”.
In section 43 –
(a) in subsection (2)(b), sub-paragraph (ii)
and the word “or” immediately preceding it;
(b) in subsection (3), the words from “and the
amount” onwards.
Section 44(7)(a).
Section 45.
In section 46(1), paragraph (e).
Section 47(4).
Section 54(7).
In section
56(1)(a)(i), the words “to which the licence relates”.
In section 58 –
(a) subsection (5);
(b) in subsection (6), the words “before the
relevant date”.
In section 60, subsections (7) to (10).
In section 61, subsections (3) and (4).
Section 68.
Section 71.
In section 72(1),
the definition of “the Authority”.
Sections 74 to 76.
Sections 78 and 79.
Section 80(2).
Sections 82 to 84.
Section 86(3).
Sections 87 to [89].
*
* * * *
Section 93.
*
* * * *
In section 97(3)(b),
the words “by the Commission” and “by them”.
In section
104(4)(d), the words “by the Commission” and “by them”.
In section 105(1),
the definitions of “the Commission” and “live”.
Section 106.
In section 107 –
(a) subsection (2);
(b) in subsection (4)(a), the words “or
regulatory”.
Sections 108 and 109.
In section 110 –
(a) subsection (2);
(b) in subsection (3), the words from “; and in
exercising” onwards;
(c) in subsection (4), the definition of “a
standards complaint” and the word “and” immediately preceding it.
Sections 112 and 113.
In section 114 –
(a) in subsection (1), the words “or a
standards complaint”;
(b) in subsection (2), the words “or a
standards complaint” and in paragraph (b) the words “, in the case of a
fairness complaint,”.
In section 115 –
(a) in subsection (2), paragraph (c);
(b) in subsection (3), paragraph (b) and the
word “and” immediately preceding it.
Section 116.
In section 118, the
words “or a standards complaint”.
In section 119 –
(a) in subsection (3), paragraph (c);
(b) in subsection (8), the words “or standards
complaint” and in paragraph (c) the words “, a regulatory body”;
(c) in subsection (9), the words “or standards
complaint” and “, 113(1)”;
(d) subsection (12).
In section 120(1),
the words “or a standards complaint”.
Sections 122 to [126 and 128 to 129].
In section 130 –
(a) in subsection (1), in the definition of
“licensed service”, the words from “, subject to” to “125(6),”;
(b) the definitions in that subsection of “the
appropriate regulatory body”, “the BSC”, “financial year”, “local delivery
service”, “regulatory body”, “sexual conduct” and “standards complaint”;
(c) in subsection (2), paragraph (b) and the
word “and” immediately preceding it.
Section 142.
Section 143(3) and (4).
Section 144(5).
In section 145(8),
the definition of “the relevant authority”.
In Schedule 2,
paragraphs 1(2)(d) to (f), 4, 5, 6(3), 10 and 11.
Schedule 3.
Schedule 4.
In Schedule 8, paragraph 4.
In Schedule 10,
paragraphs 1, 3[, 5,] 6,
* * *
11 to 14,
* * *
[19].
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Wireless Telegraphy Act 1998 (c. 6)
|
In section 1(1),[251]
the words “other than a television licence as defined in section 1(7) of that
Act”.
In section 1(3) –
(a) paragraph (a);
(b) in paragraph (b) the words from “or
provide” to “the Secretary of State”;
(c) paragraph (d) and the word “and”
immediately preceding it.
In section 3[252] –
(a) in subsection (1), the words “or determined
by him under” and paragraph (a) and the word “and” immediately after it;
(b) subsection (2);
(c) in subsection (3), paragraph (h) and the
word “and” immediately preceding it.
Section 5.[253]
Schedule 1.[254]
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Office of Communications Act 2002 (c. 11)
|
Section 2.
Sections 4 to 6.
In the Schedule,
paragraphs 1(4), 8(5), 17(8) and (9) and 20.
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Note
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1
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These repeals, so far as they relate to appeals to the tribunal
established under section 9 of the Wireless Telegraphy Act 1949 (c. 54),
have effect in relation only to appeals against decisions made after the
coming into force of section 192.
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2
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The repeal of section 63 of the Telecommunications Act
1984 (c. 12) does not affect the power of the Secretary of State or the
Treasury to acquire or subscribe for securities of the successor company or
of any subsidiary of the successor company other than pursuant to an
enactment.
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3
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The repeals of sections 80 and 81 of the
Telecommunications Act 1984 do not apply in relation to apparatus seized
before the coming into force of the repeal.
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4
|
The repeal of paragraph 20 of Schedule 5 to the
Telecommunications Act 1984 shall be disregarded for the purposes of Schedule
18 to this Act.
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5
|
The repeals of sections 27A to 27L and in section 50 of
the Telecommunications Act 1984 and the repeal of sections 1 to 10 of the
Competition and Service Utilities Act 1992 do not have effect in relation to
any dispute or other matter referred to the Director General of
Telecommunications before the coming into force of the repeals.
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6
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The repeals of sections 26 and 27 of the 1990 Act have
effect subject to section 201(2) of this Act.
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(2) Instruments
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