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Communications Bill


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

    218

 

     (5)    The services that are to be treated for the purposes of this section as provided

from places in the United Kingdom 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;

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           (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

           (c)           is not a service the provision of which is licensed or otherwise

authorised under the laws of another EEA State.

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     (6)    The services that are to be treated as so provided also include every service

provided by a BBC company, a C4 company or an S4C company.

     (7)    A reference in subsection (4)(b) to an area of the United Kingdom does not

include an area which comprises or includes the whole of England.

 243   Abolition of function of assigning radio frequencies

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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.

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Radio licensable content services

 244   Meaning of “radio licensable content services”

     (1)    In this Part “radio licensable content service” means (subject to section 245) 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

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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.

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     (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.

 245   Services that are not radio licensable content services

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     (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; or

           (b)           it is a sound broadcasting service to which subsection (3) of section 242

applies.

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     (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—

 

 

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

    219

 

           (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

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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

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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

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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

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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

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           (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—

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           (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

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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.

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     (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;

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                    “premises” includes a vehicle;

                    “vehicle” includes a vessel, aircraft or hovercraft.

 

 

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

    220

 

     (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

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such body, by or under any enactment.

 246   Modification of ss. 244 and 245

     (1)    The Secretary of State may by order modify any of the provisions of section 244

or 245 if it appears to him appropriate to do so having regard to any one or

more of the following—

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           (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

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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

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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.

 247   Licensing of radio licensable content services

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     (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—

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           (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.

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     (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

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           (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).

 

 

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

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 248   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

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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 242(1), to authorise

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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

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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

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           (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

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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 259 of this Act.

     (5)    In this section—

                    “formerly regulated radio service” means a service mentioned in

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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

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authorising the provision of a formerly regulated service.

Licence periods etc.

 249   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

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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

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

    222

 

                  (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

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as the period for which it is to be in force.”

 250   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

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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.

15

     (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

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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

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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

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           (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

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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

40

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

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

    223

 

           (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

5

(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

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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

15

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

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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

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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

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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

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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.

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     (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

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subsection (4)(a) of section 242 is a national service for the purposes of

that section;

 

 

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

    224

 

                    “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,

5

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).

 251   Renewal of local licences

10

In section 104A(5) of the 1990 Act (conditions of renewal of local licence), after

paragraph (b) there shall be inserted—

                  “(c)                    they are satisfied that the period for which the nominated local

digital sound programme service will be available for reception

and the times at which it will be available will not be

15

significantly different, week by week, from those for which and

at which the licensed local service will be broadcast;”.

 252   Extension of special application procedure for local licences

In section 104B(1) of the 1990 Act (special application procedure for local

licences for areas with 4.5 million residents or fewer)—

20

           (a)           the word “and” shall be inserted at the end of paragraph (a); and

           (b)           paragraph (b) (which excludes areas with more than 4.5 million

residents) shall cease to have effect.

.

Provision of simulcast radio services

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 253   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

30

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

35

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

40

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.”

 

 

 
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