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Session 2002 - 03
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Communications Bill


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

    207

 

 231   Modification of ss. 229 and 230

     (1)    The Secretary of State may by order modify any of the provisions of section 229

or 230 if it appears to him appropriate to do so having regard to any one or

more of the following—

           (a)           the protection which, taking account of the means by which the

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programmes and services are received or may be accessed, is expected

by members of the public as respects the contents of television

programmes;

           (b)           the extent to which members of the public are able, before television

programmes are watched or accessed, to make use of facilities for

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exercising control, by reference to the contents of the programmes, over

what is watched or accessed;

           (c)           the practicability of applying different levels of regulation in relation to

different services;

           (d)           the financial impact for providers of particular services of any

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modification of the provisions of that section; and

           (e)           technological developments that have occurred or are likely to occur.

     (2)    The Secretary of State may also by order provide, in cases where it otherwise

appears to him appropriate to do so, that a description of service specified in

the order is not to be treated as a television licensable content service for the

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purposes of the provisions of this Act that are so specified.

     (3)    No order is to be made containing provision authorised by this section unless

a draft of the order has been laid before Parliament and approved by a

resolution of each House.

 232   Licensing of television licensable content services

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

respect of a television licensable content service is a licence granted under Part

1 of that Act on an application complying with this section.

     (2)    An application for a licence to provide a television licensable content service—

           (a)           must be made in such manner,

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           (b)           must contain such information about the applicant, his business and

the service he proposes to provide, and

           (c)           must be accompanied by such fee (if any),

            as OFCOM may determine.

     (3)    Where an application is made to OFCOM in accordance with subsection (2) for

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a licence to provide a television licensable content service, OFCOM are entitled

to refuse the application only if—

           (a)           they are required to do so by section 3(3) of the 1990 Act (licences to be

held only by fit and proper persons);

           (b)           they are required to do so by section 5 of the 1990 Act (restrictions on

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the holding of licences); or

           (c)           they are satisfied that, if the application were to be granted, the

provision of the service would be likely to involve contraventions of—

                  (i)                 standards set under section 312 of this Act; or

                  (ii)                the provisions of a code of practice in force under Part 5 of the

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1996 Act (fairness).

 

 

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

    208

 

     (4)    The provision of more than one television licensable content service shall

require a separate licence under Part 1 of the 1990 Act to be granted and held

in respect of each service.

     (5)    A single licence to provide a television licensable content service may authorise

the provision of a service which consists (to any extent) of different

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programmes to be broadcast simultaneously, or virtually so.

     (6)    A licence to provide a television licensable content service shall continue in

force until such time as it is surrendered or is revoked in accordance with any

of the provisions of this Chapter or of the 1990 Act.

 233   Direction to licensee to take remedial action

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     (1)    This section applies if OFCOM are satisfied—

           (a)           that the holder of a licence to provide a television licensable content

service has contravened a condition of the licence; and

           (b)           that the contravention can be appropriately remedied by the inclusion

in the licensed service of a correction or a statement of findings (or

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both).

     (2)           OFCOM may direct the licence holder to include a correction or a statement of

findings (or both) in the licensed service.

     (3)    A direction may require the correction or statement of findings to be in such

form, and to be included in programmes at such time or times, as OFCOM may

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determine.

     (4)    OFCOM are not to give a person a direction under this section unless they have

given him a reasonable opportunity of making representations to them about

the matters appearing to them to provide grounds for the giving of the

direction.

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     (5)    Where the holder of a licence includes a correction or a statement of findings

in the licensed service in pursuance of a direction under this section, he may

announce that he is doing so in pursuance of such a direction.

     (6)    If OFCOM are satisfied that the inclusion of a programme in a television

licensable content service involved a contravention of a condition of the licence

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to provide that service, they may direct the holder of the licence not to include

that programme in that service on any future occasion.

     (7)    Where OFCOM—

           (a)           give a direction to a BBC company under subsection (2), or

           (b)           receive representations from a BBC company by virtue of subsection

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(4),

            they must send a copy of the direction or representations to the Secretary of

State.

     (8)                  For the purposes of this section a statement of findings, in relation to a case in

which OFCOM are satisfied that the holder of a licence has contravened the

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conditions of his licence, is a statement of OFCOM’s findings in relation to that

contravention.

 

 

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

    209

 

 234   Penalties for contravention of licence condition or direction

     (1)    If OFCOM are satisfied that the holder of a licence to provide a television

licensable content service—

           (a)           has contravened a condition of the licence, or

           (b)           has failed to comply with a direction given by OFCOM under or by

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virtue of a provision of this Part, Part 1 of the 1990 Act or Part 5 of the

1996 Act,

            they may serve on him a notice requiring him to pay them, within a specified

period, a specified penalty.

     (2)    The amount of the penalty under this section must not exceed the maximum

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penalty given by subsection (3).

     (3)    The maximum penalty is whichever is the greater of—

           (a)           £250,000; and

           (b)           5 per cent. of the qualifying revenue for the licence holder’s last

complete accounting period falling within the period for which his

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licence has been in force (‘the relevant period’).

     (4)           In relation to a person whose first complete accounting period falling within

the relevant period has not ended when the penalty is imposed, subsection (3)

is to be construed as referring to 5 per cent of the amount which OFCOM

estimate will be the qualifying revenue for that accounting period.

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     (5)    Section 19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act

(calculation of qualifying revenue), with any necessary modifications, are to

apply for the purposes of subsection (3) as they apply for the purposes of Part

1 of that Act.

     (6)    OFCOM are not to serve a notice on a person under subsection (1) unless they

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have given him a reasonable opportunity of making representations to them

about the matters appearing to them to provide grounds for the service of the

notice.

     (7)    Where OFCOM—

           (a)           serve a notice on a BBC company under subsection (1), or

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           (b)           receive representations from a BBC company by virtue of subsection

(6),

            they must send a copy of the notice or representations to the Secretary of State.

     (8)    An exercise by OFCOM of their powers under subsection (1) does not preclude

any exercise by them of their powers under section 233 in respect of the same

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contravention.

     (9)    The Secretary of State may by order substitute a different sum for the sum for

the time being specified in subsection (3)(a).

     (10)   No order is to be made containing provision authorised by subsection (9)

unless a draft of the order has been laid before Parliament and approved by a

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resolution of each House.

 235   Revocation of television licensable content service licence

     (1)    OFCOM must serve a notice under subsection (2) on the holder of a licence to

provide a television licensable content service if they are satisfied—

 

 

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

    210

 

           (a)           that the holder of the licence is in contravention of a condition of the

licence or is failing to comply with a direction given by them under or

by virtue of any provision of this Part, Part 1 of the 1990 Act or Part 5 of

the 1996 Act; and

           (b)           that the contravention or failure, if not remedied, would justify the

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revocation of the licence.

     (2)    A notice under this subsection must—

           (a)           state that OFCOM are satisfied as mentioned in subsection (1);

           (b)           specify the respects in which, in their opinion, the licence holder is

contravening the condition or failing to comply with the direction; and

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           (c)           state that OFCOM will revoke the licence unless the licence holder

takes, within such period as is specified in the notice, such steps to

remedy the failure as are so specified.

     (3)    If, at the end of the period specified in a notice under subsection (2), OFCOM

are satisfied—

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           (a)           that the person on whom the notice was served has failed to take the

steps specified in it, and

           (b)           that it is necessary in the public interest to revoke his licence,

                   they shall serve a notice on him revoking his licence.

     (4)    If OFCOM are satisfied in the case of a licence to provide a television licensable

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content service—

           (a)           that the holder of the licence has ceased to provide the licensed service,

and

           (b)           that it is appropriate for them to do so,

                   they shall serve a notice on him revoking his licence.

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     (5)    If OFCOM are satisfied—

           (a)           that the holder of a licence to provide a television licensable content

service has provided them, in connection with his application for the

licence, with information which was false in a material particular, or

           (b)           that, in connection with his application for the licence, the holder of

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such a licence withheld any material information with the intention of

causing them to be misled,

                   they may serve a notice on him revoking his licence.

     (6)    A notice under this section revoking a licence to provide a television licensable

content service takes effect as from the time when it is served on the licence

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holder.

     (7)    OFCOM are not to serve a notice on a person under this section unless they

have given him a reasonable opportunity of making representations to them

about the matters in respect of which it is served.

     (8)    Where OFCOM—

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           (a)           serve a notice on a BBC company under this section, or

           (b)           receive representations from a BBC company by virtue of subsection

(7),

            they must send a copy of the notice or representations to the Secretary of State.

     (9)    Nothing in this section applies to the revocation of a licence in exercise of the

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power conferred by section 236.

 

 

 
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