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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    186

 

Channels 3 and 5

 211   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.

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     (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

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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.

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     (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,

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            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

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at that time; and

           (b)           shall be renewable, on one or more occasions, under section 213.

     (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

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           (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 259.

     (8)    The conditions of the licence must also include conditions prohibiting the

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imposition, whether directly or indirectly, of the following—

           (a)           charges on persons in respect of their reception in the United Kingdom

of the licensed service;

           (b)           charges on persons in respect of their reception in the United Kingdom

of any service consisting in the provision of assistance for disabled

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people in relation to programmes included in the licensed service; and

           (c)           charges on persons in respect of their reception in the United Kingdom

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.

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    187

 

     (9)    It shall be unlawful to impose a charge in contravention of a condition imposed

under subsection (8).

 212   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

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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

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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

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           (b)           section 211 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

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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 211, 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

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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

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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

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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

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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

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replacement licence;

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    188

 

           (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

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           (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

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           (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

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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 211 of this Act, a

replacement licence under that Part in the terms, and on the conditions,

so set out;

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           (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

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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,

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            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.

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 213   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

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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

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were proposing to grant a fresh licence to take effect from the end of

that period.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    189

 

     (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.

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     (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

214 the financial terms on which the licence will be renewed; and

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           (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.

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     (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;

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           (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

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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—

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           (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.

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     (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

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effect, in accordance with the determination under subsection (4)(b), to the

requirements imposed by section 214(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

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           (b)           to take any other step under this section,

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    190

 

            at any time after an order under section 227 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

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           (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.

 214   Financial terms of licence renewed under s. 213

     (1)    The determination under section 213(4)(b) must comprise—

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           (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

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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

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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

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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—

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           (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,

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            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

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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.

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    191

 

     (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

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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

 215   Duty to secure the provision of a public teletext service

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     (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

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broadcast by means of a television multiplex service; and

           (b)           for so long as Channel 4, S4C 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 216, may continue

to include an analogue teletext service after it is no longer required under

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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 and S4C (or any of

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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—

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           (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 prevents the different items from being made

available only in the parts of the United Kingdom for which they are

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included; or

           (c)           prevents the licence holder from making arrangements authorised by

virtue of section 217 for the provision of the whole or a part of the

public teletext service by another.

     (7)    OFCOM must exercise their powers—

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           (a)           to make frequencies available for the purposes of Channel 3 services,

Channel 4 and S4C; 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.

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