House of Lords - Explanatory Note
Communications Bill - continued          House of Lords

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Clause 254: Promotion of simulcast radio services

547.     This clause amends Chapter 2 of Part 3 (sound broadcasting services) of the Broadcasting Act 1990 so that OFCOM promotes the use of simulcast radio services. When OFCOM propose to award a national service licence, they must indicate the amount of digital capacity that national radio multiplex licensees will have available for the broadcasting of simulcast radio services.

*A national radio multiplex licence has the same meaning as in Part 2 (digital terrestrial sound broadcasting) of the Broadcasting Act 1996.

548.     An application for a national service licence must contain details (if any) for providing simulcast radio services. When determining the recipient of a national service licence, OFCOM may disregard the requirement under section 100 of the Broadcasting Act 1990 to award the licence to the highest bidder where an applicant proposes to provide simulcast radio services. In the event of a tie between the highest bidders, OFCOM shall also have the power to exclude applicants who do not propose to provide simulcast radio services.

549.     Finally, subsection (6) confers on OFCOM the power to impose conditions in a national service licence requiring a licensee to provide simulcast radio services where his application included proposals to provide such services.

Clause 255: Radio multiplex services

550.     Where a multiplex service is referred to in Part 2 of the Broadcasting Act 1996, it shall mean a service broadcast otherwise than by satellite so as to be available to members of the public. This service shall provide, or be capable of providing, two or more digital sound services for simultaneous broadcast on the same frequency block.

551.     Subsection (3) provides that it will not be an offence to provide a radio multiplex service that is not licensed under the Broadcasting Act 1996. Only where a wireless telegraphy licence provides that any radio multiplex service being broadcast under that licence must itself be licensed, shall that multiplex service require a licence. This will be assumed in cases where the multiplex service is provided under a licence under the Broadcasting Act 1996 that was in force immediately before this clause comes into force and the service is broadcast using a station or apparatus that is authorised by a wireless telegraphy licence.

Clause 256: Composition of services in radio multiplexes

552.     This clause makes changes to section 54 of the 1996 Act (conditions attached to radio multiplex licences) to allow OFCOM, rather than the Secretary of State, to increase (on a licence-by-licence basis) the minimum percentage of radio multiplex capacity that must be devoted to broadcasting services.

553.     The percentage set by the Secretary of State would still represent the lowest percentage that could be specified in a licence.

Clause 257: Digital sound services for inclusion in non-radio multiplexes

554.     This clause amends the definition of national digital sound programme services in section 60 of the Broadcasting Act 1996. Such services may now be carried by a national radio multiplex service, a television multiplex service, or even a general multiplex service.

555.     Subsection (2) amends the definition of digital additional sound services, in section 63 of the same Act, to encompass such services whether provided by means of a radio multiplex service or a general multiplex service.

556.     A general multiplex service is defined in section 72 of that Act as being a multiplex service that is neither a television multiplex service nor a radio multiplex service.

Clause 258: Access radio

557.     The Secretary of State may by order modify the Bill and the Broadcasting Acts, to make special provision for radio services broadcast mainly for the benefit of the public (or members of a particular community) rather than for commercial reasons. The services should confer significant benefits on the public for which they are provided. The order may restrict advertising and programme sponsorship in the service.

Chapter 4: Regulatory Provisions

Clause 259: Application of regulatory regimes

558.     OFCOM must use their Broadcasting Act powers, and their powers under this Bill, to implement and enforce the regulatory regime for each licensed service. The Secretary of State has the power to remove any condition from the regulatory regime.

Clause 260: OFCOM reports on the fulfilment of the public service remit

559.     OFCOM are to prepare - twelve months after commencement of the Bill, and thereafter no less frequently than every five years - a report on the current state of public service television broadcasting, documenting the extent to which broadcasters have together satisfied the requirements of the public service television broadcasting remit set out in this clause. In essence, the remit involves the provision of a balanced diversity of high-quality programming, which meets the needs and interests of different audiences.

560.     OFCOM are also to have regard to the more detailed obligations listed in subsection (6) and consider the costs to the broadcasters of fulfilling their public service television remit and their available resources. These include obligations relating to culture, news and current affairs, sport, education, entertainment, programming for children, and local programming. OFCOM are also to ensure that a sufficient number of programmes within the service are made outside the M25 area.

*the public service broadcasters listed in subsection (12) are the BBC, the Welsh Authority, providers of licensed public service channels, and the public teletext provider.

Clause 261: Public service remits of licensed providers

561.     A public service remit applies to each licensed public service channel. For Channel 3 services, and Channel 5, the remit is to provide a range of high quality and diverse programming. For Channel 4, the remit specifically includes the need for programming to be innovative, creative and distinctive, for it to take account of cultural diversity and to make a significant contribution to meeting the need for licensed public service channels to include educational programmes. For the public teletext service (transmitted in both analogue and digital form) the remit is to provide a range of high quality and diverse text material. Licences relating to each of these shall include a condition requiring that the public service remit be satisfied.

Clause 262: Statements of programme policy

562.     The provider of a licensed public service channel must publish an annual statement of programme policy, and must review its performance against this statement. The statement must demonstrate how, in the coming year, the broadcaster will satisfy its public service remit, as well as those more specific programming obligations under clauses 273 to 291 of the Bill, and how successful it was in doing so in the previous year.

563.     Subsection (4) provides that the statement should take account of OFCOM guidance on its preparation, and should have regard to the reports of OFCOM as described in the notes to clause 260 above, and 351 below. Particular regard should be had to the latest such report. Subsection (7) states that licences for public service channels may include conditions relating to the treatment of any "previous statement of policy" made by the licensee. However, subsection (9) provides that such conditions may not postpone the time at which the licensee is required to make his first statement of programme policy under this section.

564.     The first statement should be published as soon as possible after this section comes into force. The term "previous statement of policy" is defined in subsection (8).

Clause 263: Changes of programme policy

565.     The statement described in the notes to clause 262 above must not contain proposals for what is to be regarded (taking account of OFCOM's guidance) as a material change in the character of the channel unless OFCOM have been consulted and the provider of the channel has taken account of OFCOM's views. If this process has not been followed, OFCOM may insist that the provider publish a revised statement that has been approved by OFCOM. In determining what constitutes a material change regard is to be had to OFCOM guidance and to the time over which the change (and any related change) will take effect. OFCOM is obliged to review its guidance from time to time and amend it as appropriate.

Clause 264: Statements of service policy by the public teletext provider

566.     This clause sets out similar requirements to clause 262. The provider of public teletext must publish an annual statement of policy, and must review its performance against this statement. The statement must demonstrate how, in the coming year, the provider will satisfy its public service remit and how successful it was in doing so in the previous year. The statement must also address, where relevant, both analogue and digital teletext services.

567.     Subsection (5) provides that the statement should take account of OFCOM guidance on its preparation, and should have regard to the reports of OFCOM as described in the notes to clause 260 above. Particular regard should be had to the latest such report. Subsection (7) states that licences for the public teletext provider may include conditions relating to the treatment of any "previous statement of policy" made by the licensee. However, subsection (9) provides that such conditions may not postpone the time at which the licensee is required to make his first statement pf programme policy under this section.

568.     The first statement should be published as soon as possible after this section comes into force. The term "previous statement of policy" is defined in subsection (9).

Clause 265: Changes of service policy

569.     This clause mirrors clause 263. The statement described in the notes on clause 264 above must not contain proposals for what is to be regarded (taking account of OFCOM's guidance) as a material change in the character of the service unless OFCOM have been consulted and the service provider has taken account of OFCOM's views. If this process has not been followed, OFCOM may insist that the provider publish a revised statement that has been approved by OFCOM.

Clause 266: Enforcement of public service remits

570.     This clause provides for the case where OFCOM conclude that a provider of a licensed public service channel or the public teletext provider has failed to fulfil its public service remit, or has not contributed adequately to the general requirements for public service broadcasting. If OFCOM are of the opinion that this failure is serious, and cannot be justified by reference to economic or market conditions, OFCOM may exercise their powers under this section. Before doing so, OFCOM must also consider the factors set out in subsection (3) regarding the provider's remit and more general performance.

571.     OFCOM may have recourse to a number of powers. Subsection (4) provides that OFCOM may direct that the provider amend his policy statement as directed, and may direct that the provider remedy its failure to fulfil satisfactorily its public service obligations. Such directions are to be accompanied by a reasonable timetable for compliance and guidance as to how OFCOM will decide whether the failure has been remedied and whether they will exercise their powers under subsection (6).

572.     If OFCOM are satisfied that their directions have not been complied with, that the provider is still failing its public service remit, and that this reasonably merits variation of the provider's licence, they may replace the self-regulatory regime described in the notes above with more detailed regulation. In other words, the conditions set under clauses 261 to 265 would be replaced by specific conditions set by OFCOM in order to ensure that the provider fulfils his public service remit.

573.     One of the general objectives of the Bill is that OFCOM be required to review continually the need for regulation in the sector, ensuring that unnecessary regulatory burdens are neither imposed nor maintained. In accordance with this de-regulatory approach, subsection (8) gives OFCOM the power, having previously exercised their powers in accordance with subsection (6) above, to vary again a provider's licence in order to reinstate the conditions imposed under clauses 261 to 265, and to remove or amend any specific conditions that were inserted in their place.

574.     Before giving any direction, or exercising any of their powers, under this section, OFCOM shall consult the provider affected.

Clause 267: Power to amend public service remits

575.     This clause provides the Secretary of State with the power to make an order amending, on the recommendation of OFCOM contained in their report required under clause 260, the public service remits under clause 261 for any licensed public service channel or the public teletext service, the list of public service television broadcasting purposes set out at clause 260(3), and the list of more detailed matters set out at subsections (5) and (6) of clause 260. Before recommending the making of an order under this provision OFCOM will be under an obligation to consult members of the public, such public service broadcasters (including the public teletext service provider if appropriate) as are likely to be affected by the proposed change and other providers of television and radio services as appropriate. Before making an order the Secretary of State must consult OFCOM, the public service broadcasters likely to be affected and other relevant providers. Any order made by the Secretary of State will be subject to the affirmative resolution procedure.

Clause 268: Must-offer obligations in relation to networks

576.     This clause requires OFCOM to include in the licences for every licensed public service channel, the public teletext service and every licensed television service added to the list of must-carry services under clause 61 conditions which they consider appropriate for securing the three following objectives:

  • that digital channels or services on the list of must-carry services under clause 61 are offered for broadcasting and distribution over every appropriate network;

  • that each provider of those channels or services enters into arrangements which ensure that their digital channels or services and any ancillary services are broadcast or distributed on appropriate networks so that those channels and services are made available for reception by as many members of the intended audience (as defined in subsection (7)) for a given service as possible; and

  • that such arrangements prohibit the provider of the channel or service from charging for reception of the channels or services.

    * An "appropriate network" is defined in subsection (7) as a network used to provide public electronic communications services to a significant number of end-users as their principal means of receiving television programmes.

Clause 269: Must-offer obligations in relation to satellite services

577.     This clause requires OFCOM to include in the licences for every licensed public service channel, the public teletext service and every other licensed television service specified by the Secretary of State conditions which they consider appropriate for securing the following three objectives:

  • that digital channels or services to which this clause applies are offered for inclusion in every satellite television service available for reception in the whole or a part of the United Kingdom;

  • that each channel or service provider of those channels or services enters into arrangements which ensure that their digital channels or services and any related ancillary services are included in satellite television services available for reception by as many members of the intended audience (as defined in subsection (7)) for a given service as possible; and

  • that such arrangements prohibit the charge being imposed for the reception of the channel or service provider from charging for reception of their channels or services.

    * A "satellite television service" is defined in subsection (7) as a service which consists of broadcasting television programme services from a satellite and is used by a significant number of those who receive it as their principal means of receiving television programmes.

578.     These two objectives apply to a service or channel only whilst its digital form is included in the list of "must provide" services for the purpose of clause 270 (see below).

Clause 270: Securing reception of must-provide services in certain areas

579.     This clause requires OFCOM to include in the licences for every licensed public service channel, the public teletext service and every licensed television service added to the list of must provide services under clause 271 conditions which secure the reception of those services. Such conditions may provide that where persons required to provide must-provide services fail to enter into or maintain arrangements that meet the requirements of subsection (3), OFCOM may impose such arrangements. Before doing so, OFCOM must consult all persons who provide must-provide services. The arrangements that may be entered into by, or imposed upon, providers of must-provide services must secure that, where necessary, any member of the intended audience (as defined in subsection (10)) for a given service, who has bought the relevant equipment (for instance a dish and a digital satellite decoder), has available to them a facility for receiving the must-provide services (including any that are broadcast by satellite) and that this is made available free of charge. The effect of the arrangements currently, for example would be to require the relevant broadcasters to supply "smart" cards for the operation of receiving equipment that will permit reception of the free-to-view services ("solus cards"). They must also establish complaints procedures and ensure that these procedures are publicised in accordance with OFCOM guidance. Any such arrangements will only take effect if approved by OFCOM.

580.     Subsections (6) and (7) clarify when reception of a service is to be regarded as being free of charge. Subsection (8) provides that OFCOM shall determine the quality of reception required before someone can be treated for the purpose of this clause as receiving a service in an intelligible form.

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

581.     This clause provides that the list of must-provide services for the purposes of clause 270 includes the following: every digital television programme provided by the BBC and in relation to which OFCOM have functions; the Channel 3 services, Channel 4 and Channel 5 services, so far as any of them are provided in digital form; S4C Digital and the digital public teletext service. The Secretary of State may by order amend the list of must-provide services.

Clause 272: Co-operation with the public teletext provider

582.     OFCOM are to include, in each licence granted under the Broadcasting Acts 1990 and 1996 to provide a Channel 3 service or Channel 4, conditions that secure that the public teletext provider and any person authorised by him under clause 217 have access to such of the facilities of the relevant provider as are needed in order to provide the public teletext service. A provider of a Channel 3 service and Channel 4 or S4C may require the public teletext provider and authorised persons to pay a reasonable charge for such access.

Clause 273: Programming quotas for independent productions

583.     OFCOM are to include conditions in the licences of all licensed public service channels in order to secure that at least 25 per cent (or such other figure as is substituted by the Secretary of State by order) of the time allocated to the broadcasting of qualifying programmes on that channel is allocated to the broadcasting of a range and diversity (judged both in terms of the types of programmes involved and of the cost of their acquisition) of independent productions.

*qualifying programmes are defined in subsection (2)(a) as programmes of such a description as the Secretary of State may by order specify as qualifying programmes. Paragraph 31 of Schedule 18 provides that any order under the Broadcasting Act 1990 as to the definition of qualifying programmes shall continue to be effective after the commencement of clauses 273 or 303 of the Bill and paragraphs 1 and 7 of Schedule 12 to the Bill.

*independent productions are defined in subsection (2)(b) as programmes of such a description as the Secretary of State may by order specify as independent productions. Paragraph 31 of Schedule 18 provides that any order under the Broadcasting Act 1990 as to the definition of independent productions shall continue to be effective after the commencement of the Bill as specified above.

    *licensed public service channels are defined in clause 355 as meaning any of the following services (whether provided for broadcasting in digital or in analogue form): any Channel 3 service; Channel 4 and Channel 5.

584.     OFCOM may give directions to the providers of the licensed public service channels for the purpose of carrying over to one or more subsequent years any shortfall for any year in meeting the independent productions quota.

585.     The Secretary of State may also provide, by order, that OFCOM include conditions in the licences of the licensed public service channels in order to secure that, in each year, not less than a specified percentage of the programming budget for that channel is applied in the acquisition of independent productions. These conditions may apply as well as, or instead of, the requirement to allocate 25% of airtime to independent productions.

    *programming budget is defined in subsection (13) as the budget for the production and acquisition of qualifying programmes.

Clause 274: Programming quotas for original productions

586.     OFCOM are to include conditions in the licences of all licensed public service channels in order to secure that an appropriate amount of airtime is allocated to original productions and that the time allocated is divided as may be appropriate between peak viewing times and other times. OFCOM may also include conditions excluding specified descriptions of programmes from the calculation of the necessary proportion of original productions. Before including such a condition, OFCOM must consult the licence holder on whom it is to be imposed. The Secretary of State must also consult OFCOM, the BBC and the Welsh Authority before making any order under this clause.

    *References to original productions in clause 274 are to programmes of such description as the Secretary of State may by order specify as original productions. The Secretary of State may confer such discretions on OFCOM as she sees fit for the purposes of the order.

    *Peak viewing time is defined in subsection (9)(a) as such time as appears to OFCOM to be - actually or potentially - a peak viewing time for any given public service channel.

Clause 275: News and current affairs programmes

587.     OFCOM are to include conditions in the licences of all public service channels in order to secure that the programmes included on those channels include news and current affairs programmes and that the time allocated to the broadcasting of news and current affairs programmes is an appropriate proportion of the total time allocated to the broadcasting of all other programmes. Such programmes are to be of a high standard, and are to cover both national and international matters. News programmes should be broadcast at intervals throughout the day, and the times at which both news and current affairs programmes are to be broadcast should include an appropriate amount of peak viewing times. OFCOM must consult with the channel provider before determining the proportion of broadcasting time to be allocated to news and current affairs programmes and what constitutes a peak viewing time.

*peak viewing time is defined in subsection (5) as such time as appears to OFCOM to be - actually or potentially - a peak viewing time for that channel. In deciding this, OFCOM are to consult the provider of the channel.

Clause 276: Appointed news providers for Channel 3

588.     OFCOM are to include in every regional Channel 3 licence conditions to secure nationwide broadcasting for news programmes that are able to compete with other television news programmes broadcast nationwide in the United Kingdom. Such conditions must require that all holders of regional Channel 3 licences maintain arrangements for the appointment of a single body corporate as the appointed news provider and that at all times when a licensee is providing a regional Channel 3 service there is a news provider appointed under those arrangements.

589.     News programmes must always be provided by the person who is the appointed news provider, and must be broadcast simultaneously with the broadcasting of news programmes included in other regional Channel 3 services.

590.     Subsection (3) sets out the arrangements for appointing the news provider. The appointment must be made from among bodies nominated by OFCOM (in accordance with section 32 of the 1990 Broadcasting Act). The appointment must cease if that nomination by OFCOM is terminated. OFCOM must approve the terms of appointment, to ensure that the finances of the appointed person are adequate to meet news obligations throughout the period of appointment.

 
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Prepared: 6 March 2003