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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    246

 

     (7)    The Secretary of State is not to make an order for the regulatory regime of every

licensed public service channel to include or exclude conditions falling within

subsection (1) or conditions falling within subsection (5) unless—

           (a)           OFCOM have made a recommendation to him for those conditions to

be included or excluded; and

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           (b)           the order gives effect to that recommendation.

     (8)           The regulatory regime for every licensed public service channel also includes

a condition requiring the provider of the channel to comply with directions

given to him by OFCOM for the purpose of—

           (a)           carrying forward to one or more subsequent years determined in

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accordance with the direction any shortfall for any year in his

compliance with the requirements of conditions imposed by virtue of

subsection (1) or (4); and

           (b)           thereby increasing the percentage applicable for the purposes of those

conditions to the subsequent year or years.

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     (9)    For the purposes of conditions imposed by virtue of this section—

           (a)           the amount of the programming budget for a licensed public service

channel for a year, and

           (b)           the means of determining the amount of that budget that is applied for

any purpose,

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            are to be computed in accordance with such provision as may be set out in an

order made by the Secretary of State, or as may be determined by OFCOM in

accordance with such an order.

     (10)          The powers of the Secretary of State to make orders under this section do not

include—

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           (a)           power to specify different percentages for the purposes of subsection

(1), or of a condition falling within subsection (5), for different regional

Channel 3 services or for different national Channel 3 services; or

           (b)           power to make different provision for different licensed public service

channels as to whether conditions falling within subsection (1) or

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conditions falling within subsection (5), or both, are included in the

regulatory regimes for those services.

     (11)   Before making an order under this section the Secretary of State must consult

OFCOM, the BBC and the Welsh Authority.

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

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

resolution of each House.

     (13)   In this section—

                    “acquisition”, in relation to a programme, includes commissioning and

the acquisition of a right to include it in a service or to have it broadcast;

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                    “programme” does not include an advertisement; and

                    “programming budget” means the budget for the production and

acquisition of qualifying programmes.

 274   Programming quotas for original productions

     (1)    The regulatory regime for every licensed public service channel includes the

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conditions that OFCOM consider appropriate for securing—

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    247

 

           (a)           that the time allocated, in each year, to the broadcasting of original

productions included in that channel is no less than what appears to

them to be an appropriate proportion of the total amount of time

allocated to the broadcasting of all the programmes included in the

channel; and

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           (b)           that the time allocated to the broadcasting of original productions is

split in what appears to them to be an appropriate manner between

peak viewing times and other times.

     (2)    The proportion determined by OFCOM for the purposes of subsection (1)—

           (a)           must, in the case of each licensed public service channel, be such

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proportion as OFCOM consider appropriate for ensuring that the

channel is consistently of a high quality; and

           (b)           may, for the purposes of paragraph (b) of that subsection, be expressed

as the cumulative effect of two different minimum proportions, one

applying to peak viewing times and the other to other times.

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     (3)    A condition contained in a licence by virtue of this section may provide—

           (a)           that specified descriptions of programmes are to be excluded in

determining the programmes a proportion of which is to consist of

original productions;

           (b)           that, in determining for the purposes of the condition whether a

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programme is of a description of programmes excluded by virtue of

paragraph (a), regard is to be had to any guidance prepared and

published, and from to time revised, by OFCOM.

     (4)    Before imposing a condition under this section, OFCOM must consult the

person on whom it is to be imposed.

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     (5)    The requirement to consult is satisfied, in the case of the imposition of a

condition by way of a variation of a licence, by compliance with section 3(4)(b)

of the 1990 Act (obligation to give opportunity to make representations about

variation).

     (6)    References in this section, in relation to a licensed public service channel, to

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original productions are references to programmes of such description as the

Secretary of State may by order specify as describing the programmes that are

to be original productions for the purposes of this section.

     (7)    The power to specify descriptions of programmes by order under subsection

(6) includes power to confer such discretions on OFCOM as the Secretary of

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State thinks fit.

     (8)    Before making an order under this section the Secretary of State must consult

OFCOM, the BBC and the Welsh Authority.

     (9)    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

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resolution of each House.

     (10)   In this section—

                    “peak viewing time”, in relation to a licensed public service channel,

means a time that appears to OFCOM to be, or to be likely to be, a peak

viewing time for that channel; and

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                    “programme” does not include an advertisement.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    248

 

     (11)   Before determining for the purposes of this section what constitutes a peak

viewing time for a channel, OFCOM must consult the provider of the channel.

News provision etc. on public service television

 275   News and current affairs programmes

     (1)    The regulatory regime for every licensed public service channel includes the

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conditions that OFCOM consider appropriate for securing—

           (a)           that the programmes included in the channel include news

programmes and current affairs programmes;

           (b)           that the news programmes and current affairs programmes included in

the service are of high quality and deal with both national and

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international matters; and

           (c)           that the news programmes so included are broadcast for viewing at

intervals throughout the period for which the channel is provided.

     (2)    That regime also includes the conditions that OFCOM consider appropriate for

securing that, in each year—

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           (a)           the time allocated to the broadcasting of news programmes included in

the service, and

           (b)           the time allocated to the broadcasting of current affairs programmes so

included,

            each constitutes no less than what appears to OFCOM to be an appropriate

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proportion of the time allocated to the broadcasting of all the programmes

included in the channel.

     (3)    It further includes the conditions that OFCOM consider appropriate for

securing that the time allocated—

           (a)           to the broadcasting of news programmes included in the service, and

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           (b)           to the broadcasting of current affairs programmes so included,

            is, in each case, split in what appears to OFCOM to be an appropriate manner

between peak viewing times and other times.

     (4)    The proportion determined by OFCOM for the purposes of subsection (2) may,

for the purposes of subsection (3), be expressed as the cumulative effect of two

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different minimum proportions, one applying to peak viewing times and the

other to other times.

     (5)    In this section “peak viewing time”, in relation to a licensed public service

channel, means a time determined by OFCOM to be, or to be likely to be, a peak

viewing time for that channel.

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     (6)    Before determining for the purposes of this section—

           (a)           the proportion of time to be allocated to the broadcasting of news

programmes or current affairs programmes; or

           (b)           what constitutes a peak viewing time for a channel,

            OFCOM must consult the provider of the channel or (as the case may be) the

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person who is proposing to provide it.

     (7)    The requirement to consult is satisfied, in the case of the imposition of a

condition by way of a variation of a licence, by compliance with section 3(4)(b)

of the 1990 Act (obligation to give opportunity to make representations about

variation).

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Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    249

 

 276   Appointed news providers for Channel 3

     (1)    The regulatory regime for every regional Channel 3 service includes the

conditions that OFCOM consider appropriate for securing the nationwide

broadcasting, on the regional Channel 3 services (taken together), of news

programmes that are able to compete effectively with other television news

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programmes broadcast nationwide in the United Kingdom.

     (2)    The conditions imposed under this section must include a condition requiring

the holder of a regional Channel 3 licence to do all that he can to ensure—

           (a)           that arrangements for the appointment of a single body corporate as the

appointed news provider are maintained between all the holders of

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regional Channel 3 licences; and

           (b)           that, at all times while he is providing a regional Channel 3 service,

there is in force an appointment made in accordance with those

arrangements.

     (3)    The arrangements that are required to be maintained by virtue of conditions

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imposed under subsection (2) must provide—

           (a)           for an appointment of a person as the appointed news provider to be

made only from among bodies corporate nominated by OFCOM in

accordance with section 32 of the 1990 Act;

           (b)           for such an appointment to cease to have effect if the nomination under

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section 32 of the 1990 Act of the appointed person is terminated;

           (c)           for the terms on which such an appointment is made to include the

terms appearing to OFCOM to be appropriate for securing that the

finances of the person appointed are adequate, throughout the period

of his appointment, to ensure that the Channel 3 news obligations are

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capable of being met; and

           (d)           for the approval of OFCOM to be required for the purposes of

paragraph (c) to the terms on which such an appointment is made.

     (4)    The conditions imposed under this section must include a condition requiring

the news programmes included in a regional Channel 3 service—

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           (a)           to be programmes provided by the person who is for the time being the

appointed news provider for the purposes of this section; and

           (b)           to be so included in that service as to be broadcast simultaneously with

the broadcasting of news programmes included, in accordance with

conditions imposed under this subsection, in other regional Channel 3

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services.

     (5)    Those conditions must also require the news programmes provided by the

appointed news provider which, in accordance with a condition imposed

under subsection (4), are included in a regional Channel 3 service to be

programmes that are presented live.

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     (6)    OFCOM—

           (a)           may issue guidance as to the terms that will satisfy requirements

imposed by virtue of subsection (3)(c); and

           (b)           must have regard to guidance for the time being in force under this

subsection when considering whether to give an approval for the

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purposes of provision made by virtue of subsection (3)(d).

     (7)    For the purposes of this section the Channel 3 news obligations are—

           (a)           the requirements of any conditions imposed in relation to regional

Channel 3 services under section 275; and

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    250

 

           (b)           the nationwide broadcasting on the regional Channel 3 services (taken

together) of news programmes that are able to compete effectively with

other television news programmes broadcast nationwide in the United

Kingdom.

     (8)    Conditions imposed under this section are not to require arrangements to

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make provision falling within subsection (3)(c) or (d) in relation to

appointments made before the commencement of this section.

 277   Power to repeal Channel 3 news provider provisions

     (1)    If it appears to the Secretary of State appropriate to do so, he may by order

repeal section 276 of this Act and section 32 of the 1990 Act.

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     (2)    Except in a case to which subsection (3) applies, the Secretary of State must

consult OFCOM before making an order under this section.

     (3)    Consultation with OFCOM is not required if the order is confined to giving

effect to recommendations by OFCOM that are contained in a report of a

review under section 384.

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     (4)    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.

 278   News providers for Channel 5

     (1)    If it appears to the Secretary of State appropriate to do so, he may by order

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make provision requiring news programmes included in Channel 5 to be

provided by a person appointed as a news provider in accordance with the

order.

     (2)    An order under this section may make provision in relation to Channel 5 that

corresponds, with such modifications as the Secretary of State thinks fit, to any

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provision made in relation to regional Channel 3 services by section 276 of this

Act or section 32 of the 1990 Act.

     (3)    Subsection (2) applies irrespective of any repeal or other modification by an

order under this Act of section 276 of this Act or section 32 of the 1990 Act.

     (4)    An order under this section may include provision for section 194A of the 1990

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Act (application of Competition Act 1998 to Channel 3 news provision) to have

effect (with such modifications as may be specified in the order) in relation to

the appointment of a person as a news provider for Channel 5 as it has effect in

relation to the appointment of a person as a news provider for Channel 3.

     (5)    The Secretary of State is not to make an order under this section for the

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imposition of obligations in relation to Channel 5 unless he is satisfied that

Channel 5’s share of the audience for television broadcasting services is

broadly equivalent to that of the services comprising Channel 3.

     (6)    An order under this section must require a licence holder to have a reasonable

opportunity of making representations to OFCOM before his licence is varied

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in pursuance of the order.

     (7)    Except in a case to which subsection (8) applies, the Secretary of State must

consult OFCOM before making an order under this section.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

    251

 

     (8)    Consultation with OFCOM is not required if the order is confined to giving

effect to recommendations by OFCOM that are contained in a report of a

review under section 384.

     (9)    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

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resolution of each House.

 279   News provision on the public teletext service

     (1)    The regulatory regime for the public teletext service includes the conditions

that OFCOM consider appropriate for securing—

           (a)           that the service includes what appears to OFCOM to be a suitable

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quantity and variety of news items; and

           (b)           that the news items included in the service are up to date and regularly

revised.

     (2)    Conditions imposed under this section in relation to a time when the public

teletext service comprises both—

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           (a)           an analogue teletext service, and

           (b)           a teletext service provided in digital form,

            must apply to both services but may make different provision for each of them.

Independent and regional productions and programmes for public service television

 280   Code relating to programme commissioning

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     (1)    The regulatory regime for every licensed public service channel includes the

conditions that OFCOM consider appropriate for securing that the provider of

the channel draws up and from time to time revises a code of practice setting

out the principles he will apply when agreeing terms for the commissioning of

independent productions.

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     (2)    That regime also includes the conditions that OFCOM consider appropriate for

securing that the provider of every licensed public service channel—

           (a)           at all times complies with a code of practice which has been drawn up

by him by virtue of this section and is for the time being in force; and

           (b)           exercises his power to revise his code to take account of revisions from

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time to time of the guidance issued by OFCOM for the purposes of this

section.

     (3)    The conditions imposed under this section must ensure that the code for the

time being in force in the case of every licensed public service channel secures,

in the manner described in guidance issued by OFCOM—

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           (a)           that a reasonable timetable is applied to negotiations for the

commissioning of an independent production and for the conclusion of

a binding agreement;

           (b)           that there is what appears to OFCOM to be sufficient clarity, when an

independent production is commissioned, about the different

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categories of rights to broadcast or otherwise to make use of or exploit

the commissioned production that are being disposed of;

           (c)           that there is what appears to OFCOM to be sufficient transparency

about the amounts to be paid in respect of each category of rights;

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 4 — Regulatory provisions

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           (d)           that what appear to OFCOM to be satisfactory arrangements are made

about the duration and exclusivity of those rights;

           (e)           that procedures exist for reviewing the arrangements adopted in

accordance with the code and for demonstrating compliance with it;

           (f)           that those procedures include requirements for the monitoring of the

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application of the code and for the making of reports to OFCOM;

           (g)           that provision is made for resolving disputes arising in respect of the

provisions of the code (by independent arbitration or otherwise) in a

manner that appears to OFCOM to be appropriate.

     (4)    The conditions imposed under this section must also ensure that the drawing

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up or revision of a code by virtue of this section is in accordance with guidance

issued by OFCOM as to—

           (a)           the times when the code is to be drawn up or reviewed with a view to

revision;

           (b)           the consultation to be undertaken before a code is drawn up or revised;

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and

           (c)           the publication of every code or revised code.

     (5)    The provision that may be included in a condition imposed under this section

includes—

           (a)           provision requiring a draft of a code or of any revision of a code to be

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submitted to OFCOM for approval;

           (b)           provision for the code or revision to have effect only if approved by

OFCOM; and

           (c)           provision for a code or revision that is approved by OFCOM subject to

modifications to have effect with those modifications.

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     (6)    OFCOM—

           (a)           must issue and may from time to time revise guidance for the purposes

of this section;

           (b)           must ensure that there is always guidance for those purposes in force;

           (c)           must, before issuing their guidance or revised guidance, consult the

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providers of licensed public service channels, persons who make

independent productions (or persons appearing to OFCOM to

represent them), the BBC and the Welsh Authority; and

           (d)           must publish their guidance or revised guidance in such manner as

they think appropriate.

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     (7)    Guidance issued by OFCOM for the purposes of this section must be general

guidance and is not to specify particular terms to be included in agreements to

which the guidance relates.

     (8)    Conditions imposed under this section requiring a code to be drawn up or

approved may include transitional provision for treating a code drawn up

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before the imposition of the condition —

           (a)           as satisfying the requirements of that condition; and

           (b)           as a code approved by OFCOM for the purposes of conditions so

imposed.

     (9)    In this section “independent production” has the same meaning as in section

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273.

 

 

 
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