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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    191

 

The public teletext service

 215   Duty to secure the provision of a public teletext service

     (1)    OFCOM must do all that they can to secure the provision, in accordance with

this Chapter and Part 1 of the 1996 Act, of a teletext service that is available

nationwide.

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     (2)    The service must consist of—

           (a)           a single teletext service provided in digital form with a view to its being

broadcast by means of a television multiplex service; and

           (b)           for so long as Channel 4, S4C and one or more Channel 3 services are

broadcast in analogue form, an analogue teletext service.

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     (3)    The service, if licensed to do so in accordance with section 216, may continue

to include an analogue teletext service after it is no longer required under

subsection (2)(b) to include such a service.

     (4)    The analogue teletext service that must be or may be comprised in the public

teletext service is a single additional television service that uses the combined

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spare capacity available for the provision of additional television services on

the frequencies on which Channel 3 services, Channel 4 and S4C (or any of

them) are broadcast in analogue form.

     (5)    For so long as the public teletext service must consist of both a teletext service

provided in digital form and an analogue teletext service, OFCOM must secure

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that both services are provided by the same person.

     (6)    But nothing in this section—

           (a)           requires the contents of the two services comprised in the public

teletext service to be the same;

           (b)           prevents the service from including different items for different parts of

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the United Kingdom or prevents the different items from being made

available only in the parts of the United Kingdom for which they are

included; or

           (c)           prevents the licence holder from making arrangements authorised by

virtue of section 217 for the provision of the whole or a part of the

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public teletext service by another.

     (7)    OFCOM must exercise their powers—

           (a)           to make frequencies available for the purposes of Channel 3 services,

Channel 4 and S4C; and

           (b)           to make determinations for the purposes of section 48(2)(b) of the 1990

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Act (determinations of spare capacity),

            in a manner that takes account of their duty under this section.

 216   Licensing of the public teletext service

     (1)    The licence that is required for the purposes of section 13 of the 1990 Act in

respect of the public teletext service is a licence under Part 1 of that Act

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complying with this section.

     (2)    The licence—

           (a)           must be a licence which continues in force, from the time from which it

takes effect, until the end of the licensing period beginning or current

at that time; and

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    192

 

           (b)           shall be renewable, on one or more occasions, under section 219.

     (3)    For the purposes of subsection (2) a licensing period is—

           (a)           the period beginning with the commencement of this section and

ending with the initial expiry date; or

           (b)           any subsequent period of ten years beginning with the end of the

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previous licensing period.

     (4)    The licence must contain the conditions that OFCOM consider appropriate for

the purpose of performing their duty under section 259.

     (5)    The conditions of the licence must also include conditions prohibiting the

imposition, whether directly or indirectly, of any charges on persons in respect

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of their reception in the United Kingdom of the licensed service.

     (6)    It shall be unlawful to impose a charge in contravention of a condition imposed

under subsection (5).

     (7)    The service authorised by a licence under this section, so far as it comprises a

service provided in digital form, is a qualifying service for the purposes of Part

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1 of the 1996 Act.

     (8)    Schedule 10 (which makes further provision about the award and grant of the

licence for the public teletext service and about the conditions and enforcement

of that licence) shall have effect.

 217   Delegation of provision of public teletext service

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     (1)    The licence for the provision of the public teletext service may—

           (a)           include provision enabling the licence holder to authorise an eligible

person to provide the whole or a part of the public teletext service on

his behalf; and

           (b)           impose conditions subject to and in accordance with which the whole

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or a part of that service may be provided by a person authorised by the

licence holder.

     (2)    The conditions of the licence to provide the public teletext service apply in

relation to its provision by a person authorised to do so on the licence holder’s

behalf as they apply to its provision by the licence holder.

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     (3)    A contravention of those conditions by a person so authorised shall be treated

for the purposes of this Chapter and the 1990 Act as a contravention on the part

of the licence holder.

     (4)    In this section “eligible person” means a person who is not a disqualified

person under Part 2 of Schedule 2 to the 1990 Act in relation to the licence for

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the public teletext service.

 218   Replacement of existing public teletext provider’s licence

     (1)    It shall be the duty of OFCOM to make an offer under this section to the person

who, when the offer is made, is the holder of the licence to provide the existing

service (the “existing licence”).

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     (2)    The offer made to a person under this section—

           (a)           must be an offer to exchange his existing licence for a replacement

licence; and

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    193

 

           (b)           must be made as soon as practicable after the television transfer date.

     (3)    The replacement licence is to be one which is granted—

           (a)           for the purposes of section 215 of this Act; and

           (b)           in accordance with section 216 of this Act and the provisions of Part 1

of the 1990 Act;

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            but Part 1 of Schedule 10 to this Act is not to apply in the case of the

replacement licence.

     (4)    Where OFCOM make an offer under this section, the service which they are

proposing to license by or under the replacement licence must be a service

which comprises both—

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           (a)           a service that appears to OFCOM to be equivalent in all material

respects to the existing service; and

           (b)           a service that appears to them to be equivalent in all material respects

to the teletext service in digital form which that person is required to

provide by virtue of section 30 of the 1996 Act.

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     (5)    The offer must propose the inclusion in the replacement licence of conditions

as to the payment of amounts to OFCOM which require the payment of—

           (a)           the same amount in respect of each complete calendar year falling

wholly or partly within the period for which the replacement licence is

in force, and

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           (b)           an amount equal to the same percentage of the qualifying revenue for

each accounting period of the licence holder falling within that period,

            as would have been payable under the existing licence had that licence

continued in force until the end of the period for which the replacement licence

is granted.

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     (6)    That offer must also propose conditions allowing amounts paid for a period

under the existing licence to be set off against liabilities for the same period

arising under the replacement licence.

     (7)    An offer under this section must set out—

           (a)           the terms of the proposed replacement licence;

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           (b)           the conditions on which OFCOM are proposing to grant the

replacement licence;

           (c)           the period for which the offer is open;

           (d)           the time as from which it is proposed the replacement licence will take

effect if the offer is accepted; and

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           (e)           the time from which the existing licence will cease to have effect if the

offer is not accepted.

     (8)    The times set out under subsection (7) must—

           (a)           in the case of the time set out under paragraph (d), be in the period of

twelve months beginning with the television transfer date; and

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           (b)           in the case of the time set out under paragraph (e), be in the period of

eighteen months after the end of the period set out under paragraph (c)

of that subsection.

     (9)    Where the person to whom an offer has been made under this section elects, by

notification to OFCOM, to exchange his licence for the replacement licence

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offered to him—

           (a)           he is entitled to be granted the replacement licence in the terms, and on

the conditions, set out in the offer; and

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    194

 

           (b)           the replacement licence shall come into force, and the existing licence

cease to have effect, at the time specified in the offer, or such later time

as OFCOM may, with the consent of that person, direct.

     (10)   Where the person to whom an offer has been made under this section—

           (a)           does not elect, during the period for which the offer is open, to

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exchange the existing licence for the replacement licence, or

           (b)           rejects the offer before the end of that period,

            the existing licence shall have effect as if the period for which it is to continue

in force ended with the time specified in the offer for the purposes of

subsection (7)(e).

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     (11)   In this section “the existing service” means the teletext service which—

           (a)           is being provided immediately before the television transfer date on the

combined spare capacity available for the provision of additional

television services on frequencies on which Channel 3 services and

Channel 4 are provided; and

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           (b)           is the service by reference to which the Independent Television

Commission have discharged their duty under section 49(2) of the 1990

Act.

     (12)   In this section “qualifying revenue” means the revenue which would be

qualifying revenue (within the meaning of section 52 of the 1990 Act) in

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relation to the holder of a licence to provide the analogue teletext service

comprised in the public teletext service.

 219   Renewal of public teletext licence

     (1)    The holder of the licence to provide the public teletext service may apply to

OFCOM for the renewal of his licence for a period of ten years from the end of

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the licensing period current at the time of the application.

     (2)    An application for renewal may only be made in the period which—

           (a)           begins four years before the end of the current licensing period; and

           (b)           ends three months before the day that OFCOM have determined to be

the day by which they would need to publish a tender notice if they

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were proposing to grant a fresh licence to take effect from the end of

that period.

     (3)    A determination for the purposes of subsection (2)(b)—

           (a)           must be made at least one year before the day determined; and

           (b)           must be notified by OFCOM to the holder, at the time of the

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determination, of the licence to provide the public teletext service.

     (4)    Where OFCOM receive an application under this section for the renewal of a

licence, they must—

           (a)           decide whether they will be renewing the licence;

           (b)           if they decide that they will be, determine in accordance with section

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220 the financial terms on which the licence will be renewed; and

           (c)           notify the applicant of their decision and determination.

     (5)    Section 17(5) to (7) of the 1990 Act (suspect sources of funds) apply in relation

to an applicant for a renewal under this section as they apply in relation to an

applicant mentioned in section 17(5) of that Act, but as if—

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           (a)           references to the award of a licence were references to its renewal; and

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    195

 

           (b)           the reference in subsection (7)(a) to section 19(1) of that Act were a

reference to paragraph 7 of Schedule 10.

     (6)    OFCOM may decide not to renew the licence if they are not satisfied that the

applicant (if his licence were renewed) would provide a service complying

with the requirements imposed under Chapter 4 of this Part by conditions

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relating to—

           (a)           the public service remit for the public teletext service;

           (b)           news; and

           (c)           regional matters.

     (7)    OFCOM may also decide not to renew the licence if they propose to grant a

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fresh licence for the public teletext service which would differ in any material

respect from the licensed service.

     (8)    In all cases in which—

           (a)           the applicant notifies OFCOM that he accepts the terms notified to him

under subsection (4)(c), and

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           (b)           they are not required or allowed by subsections (5) to (7) to refuse a

renewal,

            they must grant the renewal as soon as reasonably practicable.

     (9)    But OFCOM must not grant a renewal under this section more than eighteen

months before the end of the licensing period from the end of which the

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renewal will take effect.

     (10)   Where a licence is renewed under this section, it must be renewed on the same

terms and conditions subject only to such modifications as are required to give

effect, in accordance with the determination under subsection (4)(b), to

paragraph 7 of Schedule 10.

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     (11)   Nothing in this section requires OFCOM, following the receipt of an

application for the renewal of a licence—

           (a)           to make a decision or determination, or

           (b)           to take any other step under this section,

            at any time after an order under section 227 has come into force preventing the

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renewal of the licence.

     (12)   For the purposes of this section a licensing period is—

           (a)           the period beginning with the commencement of this section and

ending with the initial expiry date; or

           (b)           any subsequent period of ten years beginning with the end of the

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previous licensing period.

     (13)   In this section “tender notice” means a notice under paragraph 1 of Schedule

10.

 220   Financial terms of licence renewed under s. 219

     (1)    The determination under section 219(4)(b) must comprise—

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           (a)           a determination of the amount which the holder of the renewed licence

will be required by the conditions of that licence to pay to OFCOM in

respect of the first complete calendar year falling within the renewal

period;

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    196

 

           (b)           a determination of the percentage of qualifying revenue for each

accounting period of the licence holder falling within the renewal

period which he will be required by those conditions to pay to OFCOM.

     (2)    The amount determined under subsection (1)(a) must be equal to the amount

which, in OFCOM’s opinion, would have been the cash bid of the licence

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holder were the licence (instead of being renewed) to be granted for the period

of the renewal on an application made in accordance with Part 1 of Schedule

10.

     (3)    For the purposes of subsection (1)(b)—

           (a)           different percentages may be determined for different accounting

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periods; and

           (b)           the percentages that may be determined for an accounting period

include a nil percentage.

     (4)    In this section “renewal period”, in relation to a licence, means the period for

which the licence is in force by reason of its renewal.

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     (5)    Part 3 of Schedule 10 applies for construing this section as it applies for

construing that Schedule.

Meaning of initial expiry date

 221   Meaning of “initial expiry date”

     (1)    Subject to any postponement under this section, the date which is the initial

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expiry date for the purposes of this Part is 31st December 2014.

     (2)    The Secretary of State may (on one or more occasions) by order postpone the

initial expiry date.

     (3)    The Secretary of State’s power to postpone the initial expiry date—

           (a)           is to be exercisable before 30th June 2013 only if he has fixed a date after

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30th June 2013 as the date for digital switchover; and

           (b)           is not to be exercisable on or after 30th June 2013 if he has fixed 30th

June 2013 or an earlier date as the date for digital switchover.

     (4)    Where the Secretary of State makes an order under this section at a time after

he has fixed a date for digital switchover, the date to which the initial expiry

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date is postponed must be a date not less than eighteen months after the date

for digital switchover.

     (5)    The Secretary of State must exercise his power to postpone the initial expiry

date if it at any time appears to him that that date would otherwise fall within

the period of eighteen months immediately following the date fixed for digital

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switchover.

     (6)    Where an order under this section extends a licensing period for which a

licence has been granted in accordance with section 211 or 216, the 1990 Act

and this Part shall have effect (subject to subsection (7)) as if the licence had

originally been granted for the extended period.

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     (7)    Where an order under this section extends the period for which a licence is to

continue in force—

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    197

 

           (a)           that order shall not affect the earliest time at which an application for

the renewal of that licence may be made in accordance with section

213(2)(a) or 219(2)(a);

           (b)           as soon as reasonably practicable after making the order, OFCOM must

make such modification of any determination made by them in the case

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of that licence for the purposes of section 213(2)(b) or 219(2)(b) as they

consider appropriate in consequence of the extension; and

           (c)           neither section 213(3)(a) nor section 219(3)(a) applies to the making of

that modification.

     (8)    In this section a reference to the date for digital switchover is a reference to the

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date fixed by the Secretary of State for the purposes of this section as the date

which appears to him, in consequence of directions given by him for the

purposes of the conditions of the licences for the relevant public broadcasting

services, to be the date after which none of those services will be broadcast to

any significant extent in analogue form.

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     (9)    In this section “the relevant public broadcasting service” means any of the

following—

           (a)           the services comprised in Channel 3; and

           (b)           Channel 5.

Reviews relating to licensing of Channels 3 & 5 and teletext

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 222   Application for review of financial terms of replacement licences

     (1)    The holder of a replacement licence granted under section 212 or 218 may

apply to OFCOM, at any time in the first or any subsequent review period, for

a review of the financial terms on which that licence is held.

     (2)    For the purposes of this section the first review period is the period which—

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           (a)           begins four years before the first notional expiry date; and

           (b)           ends with the day before the day that OFCOM have determined to be

the one by which they would need to publish a tender notice if they

were proposing to grant a fresh licence to take effect from the first

notional expiry date.

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     (3)           For the purposes of this section a subsequent review period in the case of a

replacement licence is so much (if any) of the following period as falls before

the end of the initial expiry date, namely, the period which—

           (a)           begins four years before a subsequent notional expiry date; and

           (b)           ends with the day before the day that OFCOM have determined to be

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the one by which they would need to publish a tender notice if they

were proposing to grant a fresh licence to take effect from that notional

expiry date.

     (4)    A determination for the purposes of subsection (2)(b) or (3)(b) in respect of a

replacement licence—

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           (a)           must be made at least one year before the day determined; and

           (b)           must be notified by OFCOM to the person who, at the time of the

determination, holds the licence in question.

     (5)    No application under this section for a review of the financial terms on which

a replacement licence is held is to be made—

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