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

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Clause 277: Power to repeal Channel 3 news provider provisions

591.     This clause allows the Secretary of State, on OFCOM's recommendation or after consultation with OFCOM, and by an affirmative procedure order, to revoke the news provider arrangements for Channel 3, by repealing clause 277 and section 32 of the 1990 Act. Unless simply giving effect to recommendations made by OFCOM, the Secretary of State must consult OFCOM before making an order under this clause.

Clause 278: News providers for Channel 5

592.     The Secretary of State will have order-making powers to establish requirements for the provision of Channel 5 news programmes that correspond to the news provider provisions for Channel 3 services, with such modifications as the Secretary of State sees fit. An order may only be made on OFCOM's recommendation or after consulting OFCOM. Before the Channel 5 licence is varied, the licence-holder must be given opportunity to make representations to OFCOM.

593.     The Secretary of State is prohibited from imposing new obligations in relation to Channel 5 unless he is satisfied that Channel 5's share of the audience is broadly equivalent to that for the services comprising Channel 3.

Clause 279: News provision on the public teletext service

594.     OFCOM are to include in the licence of the public teletext provider conditions that secure that news items are included in public teletext services, and that they are up-to-date and regularly revised.

Clause 280: Code relating to programme commissioning

595.     OFCOM are to include conditions in the licences of every licensed public service channel in order to secure that the channel provider draws up, from time to time revises and complies with a code of practice setting out the principles he will apply when agreeing terms for the commissioning of independent productions. The code must be submitted to OFCOM for approval and will have effect only if approved by OFCOM.

596.     OFCOM must issue general guidance setting out the procedure for drawing up and revising the code and the matters to be covered. OFCOM's guidance may not however specify particular terms to be included in agreements to which the guidance relates. OFCOM must ensure that there is always published guidance for the purposes of this clause in force and must consult the providers of the licensed public service channels, persons who make independent productions (or persons appearing to OFCOM to represent them), the BBC and the Welsh Authority before issuing or revising the guidance.

*an independent production has the same meaning as in clause 273.

Clause 281: Programme production

597.      OFCOM may include in every licence for a Channel 3 service conditions to secure that, where Channel 3 programmes are broadcast in more than one Channel 3 area, a suitable proportion of those programmes that are made in the United Kingdom are made outside the area enclosed by the M25. Such programmes should make up a suitable range of programmes. An associated requirement is that Channel 3 providers invest sufficiently in programme production at a suitable range of production centres in different parts of the United Kingdom outside the area enclosed by the M25. None of these requirements need be included as a licence condition for a national Channel 3 service, unless OFCOM considers this to be appropriate having regard to the nature of the service. OFCOM must consult the licence holder on whom conditions under this clause are to be imposed.

*a national Channel 3 Service is defined in clause 355 as a Channel 3 service provided between particular times of the day for more than one area for which regional Channel 3 services are provided.

598.     OFCOM are also to include conditions in the licence for Channel 5 in order to ensure that a suitable proportion of Channel 5 programmes that are made in the United Kingdom are made outside the area enclosed by the M25. Such programmes should make up a suitable range of programmes. The Channel 5 provider must also invest sufficiently in programme production at a suitable range of production centres in different parts of the United Kingdom outside the area enclosed by the M25.

Clause 282: Regional programming

599.     OFCOM are to include in national, regional and local Channel 3 licences conditions to secure that the areas served by the licensee are provided with programmes appropriate to the area concerned. In relation to regional and national services, the objectives to be secured are set out in subsections (1) and (4), respectively, and include ensuring that a sufficient amount of time is given in the service to regional programmes, including news programmes, which are of high quality, that a suitable proportion of regional programmes included in the service consists of programmes made in the relevant regional area and that a sufficient proportion of such programmes are broadcast at or around peak time.

*regional programme is defined in subsection (7) as - in relation to a regional Channel 3 service - a programme included in that service as being of particular interest to persons within the area covered by the service or - in relation to a national Channel 3 service - as being of particular interest to persons within a particular area of the United Kingdom.

600.      In this clause, a Channel 3 service is a local service if it is required to provide programmes for specific areas or specific communities within that region. In the case of a local service, OFCOM shall include conditions requiring that a sufficient amount of time is given in the service to an appropriate range of local programmes, including news programmes, which are of high quality; that a sufficient proportion of such programmes are broadcast at or around peak time; and that an adequate proportion of such programmes have been produced in the relevant locality.

*local programme is defined in subsection (7) as a programme for part of an area, or for a particular community.

601.     Before including a licence condition in this respect OFCOM must consult the licence holder on whom it is to be imposed.

Clause 283: Regional programme-making for Channel 4

602.     OFCOM are to include in the Channel 4 licence conditions providing that a suitable proportion of the programmes to be broadcast on Channel 4 that are made in the United Kingdom are made outside the area enclosed by the M25. Such programmes should make up a suitable range of programmes. The Channel 4 Corporation must also invest sufficiently in programme production at a suitable range of production centres in different parts of the United Kingdom outside the area enclosed by the M25. Before imposing a condition under this clause, OFCOM must consult with the Channel 4 Corporation.

Clause 284: Inclusion of regional matters in the public teletext service

603.     OFCOM must include, in the public teletext service licence, conditions which ensure that an appropriate proportion of material reflecting the interests of the different regions of the United Kingdom is included in the analogue and digital teletext services.

Clause 285: Proposals for arrangements

604.     Any application for a regional Channel 3 licence must include the applicant's proposals for participating in networking arrangements. OFCOM may publish guidance for applicants on the kinds of proposals which they are likely to consider satisfactory.

*For the purposes of Part 3, arrangements are networking arrangements if they: (1) apply to all holders of regional Channel 3 licences; (2) allow programmes made, commissioned or acquired by a Channel 3 licensee to be made available to all other regional Channel 3 licensees for broadcasting; and (3) enable regional Channel 3 services (taken as a whole) to compete effectively with other television programme services provided in the United Kingdom.

Clause 286: Obligation as to making and continuance of approved arrangements

605.     OFCOM are to include in every regional Channel 3 licence conditions to secure that, where no conditions imposed by OFCOM under clause 287 are in force, the licensee has entered into and given effect to networking arrangements (including any modification thereto) that are approved by OFCOM in accordance with Schedule 11, The Chapter 1 prohibition of the Competition Act 1998 does not apply to any networking arrangements that have been approved by OFCOM in accordance with any licence condition imposed by them under this clause or that have been considered and approved under Schedule 4 to the Broadcasting Act 1990.

606.     Under paragraph 33 of Schedule 18, networking arrangements that are in force immediately before the commencement of this clause have been approved under section 39 of the Broadcasting Act 1990 will be treated as if approved by OFCOM under this clause.

Clause 287: OFCOM's power to impose arrangements

607.     Any notice published by OFCOM stating that they propose to award one or more regional Channel 3 licences must specify a networking date by which networking arrangements must be entered into if they are to be effective before the new Channel 3 licensees start to provide their licensed services. If suitable networking arrangements do not exist by the networking date or subsequently cease to apply, OFCOM may impose appropriate network arrangements on all regional Channel 3 providers, including the new licensee. Subsection (7) allows OFCOM to set licence conditions appropriate for securing that regional Channel 3 providers comply with the networking arrangements.

Clause 288: Review of approved networking arrangements etc.

608.     This clause imposes a duty on OFCOM to carry out general reviews of the networking arrangements approved under clause 286 or imposed under clause 287. The first review must be carried out no more than six months after the last closure date for an offer of a regional Channel 3 licence, made under clause 212. Reviews must be undertaken yearly thereafter. OFCOM may also, at any other time, carry out a review of whether the networking arrangements continue to satisfy one of the two competition tests set out in paragraph 6 of Schedule 11 (approval, imposition and modification of networking arrangements).

*The first competition test is that the networking arrangements do not have the object or effect of preventing, restricting or distorting competition within the United Kingdom. The second competition test is that the networking arrangements do have such an object or effect but would satisfy the criteria set out in section 9 of the Competition Act 1998.

609.     Where, following a review, OFCOM are satisfied that modifications to the networking arrangements are required, they may require regional Channel 3 licensees to give effect to those modifications or, in the case of arrangements imposed under clause 287, make those modifications themselves. OFCOM may not require modifications to be made to approved networking arrangements already in force without conducting a review under this clause 288 unless they have the consent of the Channel 3 licensees affected by the modification.

610.     Subsection (7) allows OFCOM to set licence conditions that secure that Channel 3 licensees to give effect to any modifications of the networking arrangements proposed by OFCOM.

Clause 289: Supplemental provision about networking arrangements

611.      Schedule 11 sets out the procedures to be followed by OFCOM when approving, imposing or modifying networking arrangements under clauses 287 and 285 and conditions included in Channel 3 licences in accordance with clause 286.

612.     Where networking arrangements (and modifications thereto) are submitted to OFCOM for their approval in accordance with conditions included in regional Channel 3 licences under clause 286, OFCOM must publish a description of those arrangements and allow third parties a reasonable period of time to comment on them. OFCOM may then approve or conditionally approve, or reject the arrangements (or modifications to them). Before deciding to give a conditional approval OFCOM must consult each holder of a regional Channel 3 licence about the changes. OFCOM must then, subject to confidentiality, publish their decision and their reasons for it. Once a set of arrangements have been approved by OFCOM they are not to be modified without OFCOM's approval.

613.     Paragraph 5 requires OFCOM to publish, subject to confidentiality, reports explaining any networking arrangements that they impose under clause 287 and the outcome of any reviews carried out under clause 288.

614.     Under paragraphs 6 and 7, OFCOM must not approve, impose or modify any networking arrangements under clauses 286 to 288 unless:

  • they are satisfied that the arrangements satisfy the first or second competition tests (as described in the note to clause 288 above); and

  • they consider that the networking arrangements represent a satisfactory, means of achieving the purpose of enabling regional Channel 3 services (taken as a whole) to compete effectively with other television programme services provided in the United Kingdom. OFCOM must also take into consideration the likely effect of the arrangements on the ability of regional Channel 3 licensees to maintain the quality and range of their regional programmes and the regional character of their services.

615.     OFCOM may not approve, impose or modify any networking arrangements where it appears to them that they are likely to prejudice the ability of regional Channel 3 licensees to comply with their public service remits or conditions imposed under clauses 281, 282 or 345.

616.     Paragraph 9 confers a right of appeal against OFCOM decisions concerning the competition aspects of networking arrangements. The right of appeal extends to any holder of a regional Channel 3 licence. An appeal may be brought only by sending a notice of appeal to the Competition Appeal Tribunal and on the grounds listed in sub-paragraph 9(4). A Channel 3 licensee is not required to comply with OFCOM's decision, pending the outcome of the appeal.

617.     The CAT is to decide the appeal on the merits. The CAT is to decide whether OFCOM's decision was appropriate and may confirm OFCOM's decision or issue any directions it considers are necessary to give effect to its decision. OFCOM must comply with any such directions. A decision of the CAT may be appealed under paragraph 11 on a point of law to the Court of Appeal, or in Scotland, to the Court of Session. Such an appeal may, with the permission of the CAT or the appellate court, be brought by a party to the original CAT proceedings.

618.     Paragraph 12 allows OFCOM to require any person to provide them with information necessary to enable OFCOM to carry out their functions under clauses 284, 285 or Schedule 11. Sub paragraphs (4) and (5) limit the types of document and/or information that OFCOM may demand. Where a person does not comply with an information request from OFCOM, OFCOM may certify the non-compliance to the High Court, the Court of Session or, in Northern Ireland, the High Court or a judge of the High Court. If, after a hearing, the court is satisfied that a person has not complied with a request from OFCOM and there is no reasonable excuse for the non-compliance, then it may hold that person in contempt of court and punish him accordingly.

619.     A person is guilty of an offence under paragraph 13 if he:

  • intentionally alters, suppresses or destroys a document requested by OFCOM; or

  • knowingly or recklessly provides OFCOM with false or misleading information himself or knowingly or recklessly provides false or misleading information to a third person which he knows will be provided to OFCOM.

620.     The penalties to which any person found guilty of committing an offence will be liable are set out in sub-paragraph (10).

Clause 290: Involvement of C4 Corporation in programme-making

621.     OFCOM are to include in the Channel 4 licence a condition prohibiting the Channel 4 Corporation from being involved in making programmes to be aired on Channel 4, except as permitted by OFCOM.

Clause 291: Schools programmes on Channel 4

622.      OFCOM are to include (following consultation with the C4 Corporation) in the Channel 4 licence any conditions necessary to ensure that Channel 4 broadcasts a sufficient proportion of schools programmes. This may be achieved by setting a minimum number of hours (in term time or within normal school hours) that must be dedicated to schools programming. The Channel 4 Corporation may also be required to finance the production of schools programmes, to acquire such programmes from others and/or to produce any materials that may be necessary to ensure the effective use of such programmes. The programming should be of a high standard and in producing their schools programmes the Channel 4 Corporation should consult such relevant persons as OFCOM directs. OFCOM must consult the Channel 4 Corporation before imposing any conditions under this clause.

*schools programmes are defined in subsection (12) as programmes which are intended for use in schools.

623.     Subsection (11) provides that the requirement in section 34 of the Broadcasting Act 1990, that a suitable proportion of the programmes which are included in Channel 3 services and Channel 4 and 5 (taken as a whole) are schools programmes (emphasis added), shall no longer apply. In other words, the obligation on Channel 4 is a stand-alone obligation that applies regardless of the quantity of schools output in Channel 3 services and Channel 5. However, in deciding on the amount of schools programming that should be provided on Channel 4, OFCOM must take into account all other services, facilities and materials that the Channel 4 Corporation provide to schools.

Clause 292: Channel 4 contribution towards national television archive

624.     This clause amends section 185 of the Broadcasting Act 1990 to allow OFCOM to determine the amount of money that the holder of the Channel 4 licence must contribute after the television transfer date towards the expenses of maintaining a television archive for the United Kingdom.

625.     Section 185 already requires such contributions from holders of Channel 3 and 5 licences and similar arrangements apply to the BBC under the BBC Agreement.

Clause 293: Conditions prohibiting interference with other services

626.     OFCOM must include in the licence for the public teletext service conditions that prohibit the public teletext service provider from causing interference with any television broadcasting service on whose frequency it is provided or any other wireless telegraphy transmissions.

Clause 294: Categorisation of listed events

627.     This clause amends section 97 of the Broadcasting Act 1996 to provide for the existing concept of 'listed events' to be divided into two categories, called 'group A' and 'group B'. Listed events are sporting or other events of national interest, which the Secretary of State has listed for the purpose of attracting the legal consequences provided for by Part 4 of the 1996 Act. The amendment requires all listed events to be allocated to one of these groups. When an event is listed, the Secretary of State will allocate it to a group, and she may decide to move a listed event from one group to another, subject to the same consultation requirements that already apply to a decision to list an event. The existing requirement to consult the ITC is replaced by one to consult OFCOM.

Clause 295: Effects of categorisation of listed events

628.     Subsection (1) amends section 99(1) of the Broadcasting Act 1996 so that it applies only to Group A listed events. Section 99(1) makes a contract void if it purports to grant exclusive rights to televise a listed event live for reception in the UK. It will, therefore, become possible for valid contracts to be made granting such exclusive rights in relation to group B events.

629.     Subsection (2) amends section 101 of the Broadcasting Act 1996. That section currently prohibits a television service provider who provides, for reception in the UK, a service falling within either of the categories set out in section 98(1) of the 1996 Act from including in that service live coverage of the whole or any part of a listed event unless either the live rights have also been acquired by another person providing a service in the other of those two categories, or the ITC has given its consent. As well as replacing references to the ITC with references to OFCOM, the amendment introduces a new ground on which live coverage can be included without satisfying either of those existing grounds. The new ground applies only to group B events, and requires that rights to provide adequate alternative coverage have been acquired by one or more persons, other than the person proposing to include the live coverage in his service, who satisfy the requirements of regulations made under section 104ZA of the 1996 Act (which is inserted by clause 297 of the Bill). The amendments also make minor drafting improvements.

Clause 296: Code relating to listed events

630.     This clause amends section 104 of the Broadcasting Act 1996, which makes provision for an ITC Code for various purposes of Part 4 of the Act. The amendment transfers responsibility to OFCOM and repeals one of the Code's existing functions, that of specifying the circumstances in which the televising of listed events is, or is not, to be treated as live for various purposes of Part 4 (which becomes instead a function of regulations under section 104A, which is inserted by clause 297 of the Bill).

631.     Paragraph 51 of Schedule 18 provides that until OFCOM draw up a code under this clause, the code drawn up by the ITC under section 104 of the Broadcasting Act 1996 shall have effect.

Clause 297: Regulations about coverage of listed events

632.     This clause inserts a new section 104ZA into the Broadcasting Act 1996 enabling OFCOM to make regulations for determining, for the purposes of Part IV of that Act, first, the circumstances in which the televising of listed events is, or is not, to be treated as live and, secondly, what is to be taken to represent the provision of adequate alternative coverage (the first function was formerly one of the Code drawn up under section 104, and the second is relevant to the amendment of section 101 made by clause 290 of the Bill).

Clause 298: Code relating to provision for deaf and visually impaired

633.     This clause provides that OFCOM are to draw up, publish and maintain a code giving guidance as to the extent to which the services to which the clause applies should promote the understanding and enjoyment by persons who are deaf or hard of hearing, and persons who are blind or partially-sighted. Subsections (2) and (3) set out the targets for the proportion of programmes contained in those services set out at subsection (10) that shall, within 10 years of the 'relevant date' (which is defined in clause 300), be respectively subtitled, audio-described, and presented in or translated into sign language. The total of programmes from which that proportion is set shall exclude such programmes as OFCOM consider should be excluded under subsection (5) having regard to the factors set out in subsection (6). OFCOM may also set interim targets and exclude different descriptions of programmes in relation to different services. Where OFCOM is satisfied that a service is a special case they may exclude all the programmes in that service.

Clause 299: Procedure for issuing and revising code under s. 298

634.     Before drawing up the code described in the notes to clause 298 above, OFCOM shall, as they see fit, consult with representatives of the deaf or hard of hearing, and blind or partially-sighted, as well as with those providing the relevant services. When the code is published it shall be in a form easily accessed by those who are deaf or hard of hearing, and those who are blind or partially-sighted.

Clause 300: Meaning of "relevant date" in s. 298

635.     This clause defines "relevant date" for the purposes of clause 298. The definition varies according to the service in question, and when provision of that service commenced.

Clause 301: Power to modify targets in s. 298

636.     The Secretary of State, following consultation with OFCOM, may by order vary the target percentages set out in subsection (3) of clause 298. She may also extend the deadline for those targets to be reached, and include additional obligations in the code.

Clause 302: Observance of code under s. 298

637.     OFCOM are to include in the licence for every service to which this clause applies (namely, any of the services listed in clause 298(10)) conditions requiring that the code provided for in clause 298 is observed.

Clause 303: Quotas for independent programmes

638.     OFCOM are to include in every licence for a digital television programme service that is not comprised in a licensed public service channel conditions to secure that at least 10 per cent of the time allocated to the broadcasting of qualifying programmes in the service 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. The Secretary of State may, by order, and having consulted OFCOM, vary this percentage and determine what are to be considered "qualifying programmes" and "independent productions".

 
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Prepared: 6 March 2003