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Session 2002 - 03
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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    239

 

           (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 (within the meaning given by subsection (4) of section 260);

           (c)           the matters to which OFCOM are to have regard under subsections (5)

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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 226 or 260; or

           (b)           subsection (3) applies to the order.

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     (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 226;

           (b)           he has considered that report; and

           (c)           he is satisfied that the making of the order is required, notwithstanding

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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 226 or 260, OFCOM must consult—

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           (a)           members of the public in the United Kingdom;

           (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

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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—

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           (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.

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     (7)    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.

     (8)    In this section “public service broadcaster” means any of the persons who are

public service broadcasters for the purposes of section 260.

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Must offer obligations etc. affecting public service television

 268   Must-offer obligations in relation to networks

     (1)    The regulatory regime for—

           (a)           every licensed public service channel,

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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           (b)           the public teletext service, and

           (c)           every licensed television service added by order under section 61 to the

list of must-carry services,

            includes the conditions that OFCOM consider appropriate for securing the

three objectives set out in this section (so far as they are not secured by

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provision made under section 240).

     (2)    The first objective is that the channel or other service, so far as it is provided in

digital form, is at all times offered as available (subject to the need to agree

terms) to be broadcast or distributed by means of every appropriate network.

     (3)    The second objective is that the person providing the channel or other service

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does his best to secure that arrangements are entered into, and kept in force,

that ensure—

           (a)           that the channel or other service, so far as it is provided in digital form,

is broadcast or distributed on appropriate networks; and

           (b)           that the broadcasting and distribution of the channel or other service,

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in accordance with those arrangements, result in its being available for

reception, by means of appropriate networks, by as many members of

its intended audience as practicable.

     (4)    The third objective is that the arrangements entered into and kept in force for

the purpose of securing the second objective prohibit the imposition, for or in

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connection with the provision of an appropriate network, of any charge that is

attributable (whether directly or indirectly) to the conferring of an entitlement

to receive the channel or other service in question in an intelligible form by

means of that network.

     (5)    The three objectives apply only in relation to times when the channel or other

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service in its digital form is included in the list of must-carry services in section

61.

     (6)    Conditions imposed under this section in relation to a channel or other service

must, to such extent as OFCOM consider appropriate—

           (a)           require arrangements made or kept in force for the purpose of securing

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the second objective to apply in the case of every service which is an

ancillary service by reference to the channel or other service in question

as they apply to the channel or other service itself; and

           (b)           provide for the channel or other service to which the conditions apply

to be treated, in relation to particular appropriate networks, as

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constituting such services comprised in or provided with that channel

or other service as may be determined by OFCOM.

     (7)    In this section—

                    “appropriate network” means (subject to subsection (8)) an electronic

communications network by means of which public electronic

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communications services are provided that are used by a significant

number of end-users as their principal means of receiving television

programmes;

                    “intended audience”, in relation to a channel or other service, means—

                  (a)                 if the channel or other service is one provided only for a

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particular area or locality of the United Kingdom, members of

the public in that area or locality;

                  (b)                 if the channel or other service is one provided for members of a

particular community, members of that community; and

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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                  (c)                 in any other case, members of the public in the United

Kingdom;

                    “licensed television service” means a service falling to be licensed under

Part 1 of the 1990 Act or Part 1 of the 1996 Act.

     (8)    For the purposes of this section an electronic communications network is not

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an appropriate network in relation to so much of a channel or other service as

is provided only for a particular area or locality of the United Kingdom unless

it is a network by means of which electronic communications services are

provided to persons in that area or locality

     (9)    In subsection (7) “public electronic communications service” and “end-user”

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each has the same meaning as in Part 2.

     (10)   An order under section 403 must not appoint a day for provisions of this

section to come into force that falls less than six months after the day on which

the order is made.

 269   Must-offer obligations in relation to satellite services

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     (1)    The regulatory regime for—

           (a)           every licensed public service channel,

           (b)           the public teletext service, and

           (c)           every other licensed television service specified for the purposes of this

section in an order made by the Secretary of State,

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            includes the conditions that OFCOM consider appropriate for securing the

three objectives set out in this section (so far as they are not secured by

conditions imposed under section 268).

     (2)    The first objective is that the channel or other service, so far as it is provided in

digital form, is at all times offered as available (subject to the need to agree

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terms) to be broadcast by means of every satellite television service that is

available for reception by members of the public in the whole or a part of the

United Kingdom.

     (3)    The second objective is that the person providing the channel or other service

does his best to secure that arrangements are entered into, and kept in force,

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that ensure—

           (a)           that the channel or other service, so far as it is provided in digital form,

is broadcast by means of satellite television services that are broadcast

so as to be available for reception by members of the public in the

United Kingdom; and

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           (b)           that the broadcasting, in accordance with those arrangements, of the

channel or other service by means of those satellite television services

results in its being available for reception in an intelligible form and by

means of those services by as many members of its intended audience

as practicable.

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     (4)    The third objective is that the arrangements entered into and kept in force for

the purpose of securing the second objective prohibit the imposition, for or in

connection with the provision of a satellite television service, of any charge that

is attributable (whether directly or indirectly) to the conferring of an

entitlement to receive the channel or other service in question in an intelligible

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form by means of that service.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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     (5)    The three objectives apply only in relation to a time when the channel or service

is included, in its digital form, in the list of services that are must-provide

services for the purposes of section 270.

     (6)    Conditions imposed under this section in relation to a channel or other service

must, to such extent as OFCOM consider appropriate—

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           (a)           require arrangements made or kept in force for the purpose of securing

the second objective to apply in the case of every service which is an

ancillary service by reference to the channel or other service in question

as they apply to the channel or other service itself; and

           (b)           provide for the channel or other service to which the conditions apply

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to be treated, in relation to particular satellite television services, as

constituting such services comprised in or provided with the channel

or other service as may be determined by OFCOM.

     (7)    In this section—

                    “intended audience”, in relation to a channel or other service, means—

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                  (a)                 if the channel or other service is one provided only for a

particular area or locality of the United Kingdom, members of

the public in that area or locality;

                  (b)                 if the channel or other service is one provided for members of a

particular community, members of that community; and

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                  (c)                 in any other case, members of the public in the United

Kingdom;

                    “licensed television service” means a service falling to be licensed under

Part 1 of the 1990 Act or Part 1 of the 1996 Act; and

                    “satellite television service” means a service which—

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                  (a)                 consists in or involves the broadcasting of television

programme services from a satellite; and

                  (b)                 is used by a significant number of the persons by whom the

broadcasts are received in an intelligible form as their principal

means of receiving television programmes.

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     (8)    An order under section 403 must not appoint a day for provisions of this

section to come into force that falls less than six months after the day on which

the order is made.

 270   Securing reception of must-provide services in certain areas

     (1)    The regulatory regime for—

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           (a)           every licensed public service channel,

           (b)           the public teletext service, and

           (c)           every licensed television service added by order under section 271 to

the list of must-provide services,

            includes the conditions that OFCOM consider appropriate for securing that

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arrangements satisfying the requirements of this section are entered into and

maintained by all the persons who provide must-provide services.

     (2)    The conditions imposed on a person under this section may include the

conditions that OFCOM consider appropriate for securing, in a case where—

           (a)           the persons providing must-provide services fail to enter into or

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maintain arrangements satisfying the requirements of this section, and

           (b)           OFCOM make and impose arrangements of their own instead,

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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            that the person bound by the conditions is required to act in accordance with

arrangements imposed by OFCOM.

     (3)    The arrangements that are to be entered into, or may be imposed, are

arrangements that secure—

           (a)           that a facility for receiving each must-provide service is made available

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to every member of the intended audience for that service who is

unable, without the use of that facility, to receive it an intelligible form

and free of charge;

           (b)           that the facility is one under which every such member of the intended

audience for a must-provide service is entitled, free of charge, to receive

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in an intelligible form so much of a service broadcast from a satellite as

includes that must-provide service;

           (c)           that the cost of making that facility available is shared, in appropriate

proportions, by all the persons providing must-provide services;

           (d)           that procedures are established and maintained for dealing with

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complaints from persons claiming to be entitled, in accordance with the

arrangements, to receive a service free of charge, and for resolving

disputes about the existence or extent of such an entitlement;

           (e)           that the availability of those procedures is adequately publicised in

accordance with guidance given from time to time by OFCOM.

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     (4)    Arrangements entered into by the providers of must-provide services for the

purposes of subsection (3), and any modifications of such arrangements made

by the parties to them, are to have effect only if approved by OFCOM.

     (5)    Before imposing any arrangements for the purposes of a condition under

subsection (2), OFCOM must consult all the persons who provide must-

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provide services.

     (6)    For the purposes of this section the reception of a service is not free of charge—

           (a)           if reception of the service is made conditional on the acceptance of an

entitlement to receive another service in relation to which a charge is

imposed (whether directly or indirectly);

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           (b)           if a charge is made for or in connection with the provision of a service

which is an ancillary service in relation to the service in question;

           (c)           if any consideration is required from the persons to whom it is made

available for the provision of assistance for disabled people in respect

of programmes included in the service; or

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           (d)           if any other consideration is required to be given, by the person entitled

to receive it, for or in connection with its provision or availability.

     (7)    A service is not prevented from being free of charge by a requirement to pay

sums in accordance with regulations under section 358.

     (8)    The quality of reception that is required before someone is to be treated for the

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purposes of any conditions imposed under this section as able to receive a

service in an intelligible form is to be determined by OFCOM.

     (9)    References in this section to a facility for receiving a must-provide service

include references to—

           (a)           software to be used in giving effect to the entitlement to receive a must-

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provide service in an intelligible form, and

           (b)           apparatus to be used in associating apparatus capable of being used for

receiving such a service, or for putting it into an intelligible form, with

a person having such an entitlement,

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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            but do not otherwise include references to apparatus.

     (10)   In this section—

                    “intended audience”, in relation to a must-provide service, means—

                  (a)                 if the service is one provided only for a particular area or

locality of the United Kingdom, members of the public in that

5

area or locality;

                  (b)                 if the service is one 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;

10

                    “licensed television service” means a service falling to be licensed under

Part 1 of the 1990 Act or Part 1 of the 1996 Act;

                    “must-provide service” means a service for the time being included in the

list of must-provide services in section 271.

     (11)   An order under section 403 must not appoint a day for provisions of this

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section to come into force that falls less than six months after the day on which

the order is made.

 271   Must-provide services for the purposes of s. 270

     (1)    For the purposes of section 270 the list of must-provide services is as follows—

           (a)           every service of television programmes provided by the BBC so far as

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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;

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           (e)           S4C Digital;

           (f)           the digital public teletext service.

     (2)    The Secretary of State may by order modify the list of must-provide services in

subsection (1).

 272   Co-operation with the public teletext provider

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     (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

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           (b)           to any person authorised by virtue of section 217 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.

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     (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.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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     (4)    In the the event of a dispute, the amount of the charge is to be determined by

OFCOM.

Programming quotas for public service television

 273   Programming quotas for independent productions

     (1)    The regulatory regime for every licensed public service channel includes the

5

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—

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           (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

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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

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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

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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

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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

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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

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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—

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