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Communications Bill


Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

    394

 

  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

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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

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                    (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

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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.

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          (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

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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.

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          (5)      In this paragraph “connected person” has the same meaning as in Schedule

2 to the 1990 Act.

Schedule 11

Sections 286 and 289

 

Approval, imposition and modification of networking arrangements

Application of Schedule

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  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 286; or

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              (b)             in order for networking arrangements made by OFCOM to cease to

have effect in accordance with section 287.

          (2)      This Schedule also has effect as respects—

 

 

Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

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              (a)             the imposition by OFCOM under section 287 of networking

arrangements;

              (b)             the modification of such arrangements following a review under

section 288; and

              (c)             the making of proposals for modifications of networking

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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

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Schedule.

          (2)      This paragraph does not apply to modifications proposed by OFCOM under

section 288.

Procedure for giving approval

  3       (1)      This paragraph applies where arrangements or modifications are submitted

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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

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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.

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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;

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              (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

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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—

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              (a)             their decision; and

              (b)             their reasons for that decision.

          (5)      OFCOM must publish the report and send a copy of it to—

 

 

Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

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              (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

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              (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.

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          (2)      Where OFCOM carry out a review under section 288, 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,

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following the review.

          (3)      OFCOM must send a copy of a report prepared under this paragraph to—

              (a)             the Office of Fair Trading; and

              (b)             every person to whom the relevant arrangements will apply or do

apply.

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          (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

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  6       (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 288,

                   unless they are satisfied that the arrangements, or the arrangements as

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proposed to be modified, satisfy the first or second competition test.

          (2)      Before making a decision about whether a competition test is satisfied

OFCOM must consult the Office of Fair Trading.

          (3)      Arrangements satisfy the first competition test if they do not have as their

object or effect the prevention, restriction or distortion of competition within

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the United Kingdom.

          (4)      Arrangements satisfy the second competition test if—

              (a)             they do have such an object or effect; but

              (b)             they would satisfy the criteria set out in section 9 of the Competition

Act 1998 (c. 41) (agreements contributing to improving the

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production or distribution of goods or to promoting technical or

economic progress).

 

 

Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

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          (5)      For the purposes of the second competition test, arrangements imposed by

OFCOM and modifications of such arrangements are to be treated as if they

were given effect to by an agreement between undertakings.

          (6)      In determining whether arrangements or modified arrangements would

satisfy either of the competition tests, OFCOM must act with a view to

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securing that there is no inconsistency between

              (a)             the principles they apply and the decision they reach; and

              (b)             any principles or decisions referred to in sub-paragraph (7).

          (7)      Those principles and decisions are—

              (a)             the principles laid down by the Treaty establishing the European

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Community and the European Court, and any decisions of that

Court, that are relevant to the construction of Article 81 of that

Treaty; and

              (b)             any decisions under Part 1 of the Competition Act 1998 (c. 41), and

any decisions of a court in the United Kingdom, that are relevant to

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the construction of a provision of that Act that is equivalent to the

provisions of this Schedule imposing the competition tests.

          (8)      In the case of a conditional approval, the requirements of this paragraph

have to be satisfied in relation to the arrangements or modified

arrangements as they will be after giving effect to the changes proposed by

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OFCOM.

          (9)      In this paragraph, the “European Court” includes a court attached to the

European Court.

Other matters to be taken into account

  7       (1)      OFCOM must not—

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              (a)             approve arrangements or modifications,

              (b)             impose arrangements or modify imposed arrangements, or

              (c)             propose modifications following a review under section 288,

                   unless they consider that the arrangements, or the arrangements as

proposed to be modified, are satisfactory.

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          (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 285(4)(c).

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          (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

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              (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—

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              (a)             to persons living within the area for which the service is provided;

              (b)             to persons living within a part of that area; or

 

 

Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

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              (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

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              (c)             to propose modifications following a review under section 288.

          (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—

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              (a)             their public service remits;

              (b)             conditions imposed on them under section 281;

              (c)             conditions imposed on them under section 282; or

              (d)             conditions imposed on them under section 345.

Appeals against decisions relating to competition test

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  9       (1)      A person holding a regional Channel 3 licence may appeal to the Tribunal

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

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arrangements; or

              (c)             a decision to propose modifications following a review under section

288.

          (2)      An appeal can be made only by sending the Tribunal a notice of appeal

within the period specified, in relation to the decision appealed against, in

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Tribunal 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 has wrongly decided that a competition test is or is not

satisfied in relation to arrangements or modifications submitted to

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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;

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              (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

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giving effect to changes proposed by OFCOM in giving a conditional

approval;

              (b)             arrangements imposed by them;

              (c)             imposed arrangements as modified by them;

 

 

Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

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              (d)             arrangements as modified by proposals made by OFCOM following

a review under section 288.

          (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.

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Decisions on an appeal

  10      (1)      Appeals to the Tribunal under paragraph 9 are to be disposed of in

accordance with this paragraph.

          (2)      The Tribunal shall decide the appeal on the merits and by reference to the

grounds of appeal set out in the notice of appeal.

10

          (3)      The Tribunal 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 Tribunal shall then either—

              (a)             confirm OFCOM’s decision; or

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              (b)             remit the matter to OFCOM with such directions (if any) as the

Tribunal considers appropriate for giving effect to its decision.

          (5)      The Tribunal 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

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under sub-paragraph (4).

          (7)      In its application to a decision of the Tribunal under this section, paragraph

1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of

commercial information from documents recording Tribunal decisions) is to

have effect as if for the reference to the undertaking to which commercial

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information relates there were substituted a reference to the person to whom

such information relates.

Appeals against decisions of the Tribunal

  11      (1)      A decision of the Tribunal on an appeal under paragraph 9 may itself be

appealed.

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          (2)      An appeal under this section—

              (a)             lies to the Court of Appeal or to the Court of Session; and

              (b)             must relate only to a point of law arising from the decision of the

Tribunal.

          (3)      An appeal under this section may be brought by a party to the proceedings

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before the Tribunal.

          (4)      An appeal under this section requires the permission of the Tribunal or of

the court to which it is to be made.

          (5)      In this section references to a decision of the Tribunal include references to a

direction given by it under paragraph 10(4).

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Information for OFCOM

  12      (1)      OFCOM may by notice require a person—

 

 

Communications Bill
Schedule 11 — Approval, imposition and modification of networking arrangements

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              (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

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288 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

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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

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              (b)             at a time between that time and the time when the notice must be

complied with.

Enforcement of information provisions

  13      (1)      The court may, on an application by OFCOM, enquire into whether any

person (“the defaulter”) has refused or otherwise failed, without reasonable

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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 court shall hear—

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              (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 court is satisfied, after hearing

any witnesses and statements as mentioned in sub-paragraph (3), that the

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defaulter has refused or failed, without reasonable excuse, to comply with

the requirement contained in the notice under paragraph 12.

          (5)      The court 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 court to punish the

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defaulter includes power to punish a director or officer of the body

corporate.

          (7)      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.

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          (8)      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

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reckless as to whether it is false or misleading in a material respect.

 

 

 
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