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Communications Bill


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

    278

 

           (b)           may include provision prohibiting advertisements and forms and

methods of advertising or sponsorship (whether generally or in

particular circumstances).

     (2)    The standards so set must, in particular, include provision to secure that

programme services do not include—

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           (a)           any advertisement which is inserted by or on behalf of a body whose

objects are wholly or mainly of a political nature;

           (b)           any advertisement which is directed towards a political end; or

           (c)           any advertisement which has a connection with an industrial dispute.

     (3)    For the purposes of this section objects of a political nature and political ends

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include each of the following—

           (a)           influencing the outcome of elections or referendums, whether in the

United Kingdom or elsewhere;

           (b)           bringing about changes of the law in the whole or a part of the United

Kingdom or elsewhere, or otherwise influencing the legislative process

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in any country or territory;

           (c)           influencing the policies or decisions of local, regional or national

governments, whether in the United Kingdom or elsewhere;

           (d)           influencing the policies or decisions of persons on whom public

functions are conferred by or under the law of the United Kingdom or

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of a country or territory outside the United Kingdom;

           (e)           influencing the policies or decisions of persons on whom functions are

conferred by or under international agreements;

           (f)           influencing public opinion on a matter which, in the United Kingdom,

is a matter of public controversy;

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           (g)           promoting the interests of a party or other group of persons organised,

in the United Kingdom or elsewhere, for political ends.

     (4)    OFCOM—

           (a)           shall, in relation to programme services, have a general responsibility

with respect to advertisements and methods of advertising and

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sponsorship; and

           (b)           in the discharge of that responsibility may include conditions in any

licence which is granted by them for any such service that enable

OFCOM to impose requirements with respect to any of those matters

that go beyond the provisions of OFCOM’s standards code.

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     (5)    OFCOM must, from time to time, consult the Secretary of State about—

           (a)           the descriptions of advertisements that should not be included in

programme services; and

           (b)           the forms and methods of advertising and sponsorship that should not

be employed in, or in connection with, the provision of such services.

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     (6)    The Secretary of State may give OFCOM directions as to the matters mentioned

in subsection (5); and it shall be the duty of OFCOM to comply with any such

direction.

     (7)    Provision included by virtue of this section in standards set under section 312

is not to apply to, or to be construed as prohibiting the inclusion in a

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programme service of—

           (a)           an advertisement of a public service nature inserted by, or on behalf of,

a government department; or

 

 

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

    279

 

           (b)           a party political or referendum campaign broadcast the inclusion of

which is required by a condition imposed under section 326 or by

paragraph 18 of Schedule 12 to this Act.

     (8)    In this section “programme service” does not include a service provided by the

BBC.

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 315   Supplementary powers relating to advertising

     (1)    The regulatory regime for each of the following—

           (a)           every television programme service licensed by a Broadcasting Act

licence,

           (b)           the public teletext service, and

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           (c)           every other teletext service so licensed that consists in an additional

television service or a digital additional television service,

            includes a condition requiring the person providing the service to comply with

every direction given to him by OFCOM with respect to any of the matters

mentioned in subsection (2).

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     (2)    Those matters are—

           (a)           the maximum amount of time to be given to advertisements in any

hour or other period;

           (b)           the minimum interval which must elapse between any two periods

given over to advertisements;

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           (c)           the number of such periods to be allowed in any programme or in any

hour or day; and

           (d)           the exclusion of advertisements from a specified part of a licensed

service.

     (3)    Directions under this section—

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           (a)           may be either general or specific;

           (b)           may be qualified or unqualified; and

           (c)           may make different provision for different parts of the day, different

days of the week, different types of programmes or for other differing

circumstances.

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     (4)    In giving a direction under this section, OFCOM must take account of such of

the international obligations of the United Kingdom as the Secretary of State

may notify to them for the purposes of this section.

 316   Modification of matters to be taken into account under s. 312

     (1)    The Secretary of State may by order modify the list of matters in section 312(4)

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to which OFCOM are to have regard when setting or revising standards.

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

OFCOM.

     (3)    No order is to be made containing provision authorised by subsection (1)

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

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resolution of each House.

 

 

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

    280

 

 317   Setting and publication of standards

     (1)    Before setting standards under section 312, OFCOM must publish, in such

manner as they think fit, a draft of the proposed code containing those

standards.

     (2)    After publishing the draft code and before setting the standards, OFCOM must

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consult every person who holds a relevant licence and such of the following as

they think fit—

           (a)           persons appearing to OFCOM to represent the interests of those who

watch television programmes;

           (b)           persons appearing to OFCOM to represent the interests of those who

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make use of teletext services; and

           (c)           persons appearing to OFCOM to represent the interests of those who

listen to sound programmes.

     (3)    After publishing the draft code and before setting the standards, OFCOM must

also consult—

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           (a)           the Welsh Authority, about so much of the draft code as relates to

television programme services;

           (b)           the BBC, about so much of the draft code as contains standards other

than those for advertising or sponsorship; and

           (c)           such of the persons mentioned in subsection (4) as OFCOM think fit,

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about so much of the draft code as contains standards for advertising

or sponsorship.

     (4)    Those persons are—

           (a)           persons appearing to OFCOM to represent the interests of those who

will have to take account of the contents of the proposed standards for

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advertising or sponsorship;

           (b)           bodies and associations appearing to OFCOM to be concerned with the

application of standards of conduct in advertising; and

           (c)           professional organisations appearing to OFCOM to be qualified to give

relevant advice in relation to the advertising of particular products.

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     (5)    If it appears to OFCOM that a body exists which represents the interests of a

number of the persons who hold relevant licences, they may perform their

duty under subsection (2) of consulting such persons, so far as it relates to the

persons whose interests are so represented, by consulting that body.

     (6)    OFCOM may set standards under section 312 either—

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           (a)           in the terms proposed in a draft code published under subsection (1); or

           (b)           with such modifications as OFCOM consider appropriate in the light of

the consultation carried out as a result of subsections (2) to (5).

     (7)    Subsections (1) to (6) apply to a proposal by OFCOM to revise standards set

under section 312 as they apply to a proposal to set such standards.

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     (8)    Where OFCOM set standards under section 312, they must publish the code

containing the standards in such manner as they consider appropriate for

bringing it to the attention of the persons who, in their opinion, are likely to be

affected by the standards.

     (9)    Where OFCOM revise standards set under section 312, they shall so publish

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the code containing the standards as revised.

 

 

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

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     (10)   Where OFCOM publish a code under subsection (8) or (9), they shall send a

copy of it—

           (a)           to the Secretary of State;

           (b)           except in the case of a code containing standards for advertising or

sponsorship, to the BBC; and

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           (c)           if the code relates to television programme services, to the Welsh

Authority.

     (11)   A code (or draft code) contains standards for advertising or sponsorship for the

purposes of this section to the extent that it sets standards under section 312 for

securing any of the objectives mentioned in any of paragraphs (g) to (i) of

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subsection (2) of that section.

     (12)   In this section “relevant licence”, in relation to a draft code, means—

           (a)           to the extent that the draft code relates to

                  (i)                 television programme services,

                  (ii)                the public teletext service, or

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                  (iii)               an additional television service,

                         a licence under Part 1 of the 1990 Act (independent television services),

under section 18 of the 1996 Act (digital television programme services)

under section 25 of that Act (digital additional television services) or

under section 216 of this Act; and

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           (b)           to the extent that the draft code relates to radio programme services,

any licence under Part 3 of the 1990 Act (independent radio services),

under section 60 of the 1996 Act (digital sound programme service) or

under section 64 of that Act (digital additional services).

 318   Observance of standards code

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     (1)    The regulatory regime for every programme service licensed by a Broadcasting

Act licence includes conditions for securing—

           (a)           that standards set under section 312 are observed in the provision of

that service; and

           (b)           that procedures for the handling and resolution of complaints about the

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observance of those standards are established and maintained.

     (2)    It shall be the duty of OFCOM themselves to establish procedures for the

handling and resolution of complaints about the observance of standards set

under section 312.

     (3)    OFCOM may from time to time make a report to the Secretary of State on any

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issues with respect to OFCOM’s standards code which—

           (a)           have been identified by them in the course of carrying out their

functions; and

           (b)           appear to them to raise questions of general broadcasting policy.

     (4)    The conditions of a licence which is granted by OFCOM for a programme

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service must, for the purpose of securing compliance—

           (a)           with OFCOM’s standards code, so far as it relates to advertising and

the sponsorship of programmes, and

           (b)           with any such requirements as are mentioned in section 314(4) which

relate to advertising and sponsorship but go beyond that code,

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

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            include a condition requiring the licence holder to comply with every direction

given to him by OFCOM with respect to any of the matters mentioned in

subsection (5).

     (5)    Those matters are—

           (a)           the exclusion from the service of a particular advertisement, or its

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exclusion in particular circumstances;

           (b)           the descriptions of advertisements and methods of advertising to be

excluded from the service (whether generally or in particular

circumstances); and

           (c)           the forms and methods of sponsorship to be excluded from the service

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(whether generally or in particular circumstances).

     (6)    OFCOM’s powers and duties under this section are not to be construed as

restricting any power of theirs, apart from this section—

           (a)           to include conditions with respect to the content of programmes

included in any service in the licence to provide that service; or

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           (b)           to include conditions in a licence requiring the holder of a licence to

comply with directions given by OFCOM or by any other person.

 319   Duty to observe fairness code

The regulatory regime for every programme service licensed by a Broadcasting

Act licence includes the conditions that OFCOM consider appropriate for

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securing observance—

           (a)           in connection with the provision of that service, and

           (b)           in relation to the programmes included in that service,

            of the code for the time being in force under section 107 of the 1996 Act (the

fairness code).

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 320   Standards with respect to fairness

     (1)    Part 5 of the 1996 Act (functions of the Broadcasting Standards Commission

which are transferred to OFCOM so far as they relate to codes of practice and

complaints with respect to fairness and privacy) shall be amended as follows.

     (2)    No person shall be entitled to make a standards complaint under that Part at

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any time after the coming into force of this section, and no person shall be

required to entertain any such complaint that is so made.

     (3)    In section 115 (consideration of fairness complaint)—

           (a)           in subsection (4) (matters to be provided in response to a fairness

complaint), after paragraph (d) there shall be inserted—

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                        “(da)                           to provide OFCOM with such other things appearing to

OFCOM to be relevant to their consideration of the

complaint, and to be in the possession of the relevant

person, as may be specified or described by OFCOM;”

           (b)           in subsection (7) (requests in relation to which the relevant person is

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required to secure the compliance of another), after paragraph (c) there

shall be inserted—

                        “(ca)                           a request to provide OFCOM with such other things

appearing to OFCOM to be relevant to their

consideration of the complaint, and to be in the

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

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possession of the person requested, as may be specified

or described by OFCOM;”.

     (4)    For subsection (7) of section 119 (directions on determination of fairness

complaint) there shall be substituted—

           “(7)              The regulatory regime for every licensed service includes the

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conditions that OFCOM consider appropriate for securing that the

licence holder complies with every direction given to him under this

section.

           (7A)              Section 259 of the Communications Act 2003 applies in relation to

conditions included by virtue of subsection (7) in the regulatory regime

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for a licensed service as it applies in relation to conditions which are so

included by virtue of a provision of Chapter 4 of Part 3 of that Act.

           (7B)              It is hereby declared that, where—

                  (a)                 OFCOM exercise their powers under this Part to adjudicate

upon a fairness complaint or to give a direction under

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subsection (1), and

                  (b)                 it appears to them that the matters to which the complaint in

question relates consist in or include a contravention of the

conditions of the licence for a licensed service,

                         the exercise by OFCOM of their powers under this Part is not to

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preclude the exercise by them of their powers under any other

enactment in respect of the contravention.

           (7C)              Where OFCOM are proposing to exercise any of their powers in respect

of a contravention of a licence condition in a case in which the

contravention relates to matters that have been the subject matter of a

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fairness complaint—

                  (a)                 OFCOM may have regard, in the exercise of those powers, to

any matters considered or steps taken by them for the purpose

of adjudicating upon that complaint and to any direction given

by them under this section; but

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                  (b)                 steps taken for the purposes of this Part do not satisfy a

requirement to give the licence holder in relation to whom those

powers are to be exercised a reasonable opportunity, before

they are exercised, of making representations to OFCOM.”

     (5)    For subsection (2) of section 120 of that Act (reports on supplementary action

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taken in response to findings on fairness complaint) there shall be

substituted—

           “(2)              Where the relevant programme was included in a licensed service, the

licence holder shall send to OFCOM a report of any supplementary

action taken by him or by any other person responsible for the making

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or provision of the relevant programme.”

 321   Duty to publicise OFCOM’s functions in relation to complaints

     (1)    The regulatory regime for every programme service licensed by a Broadcasting

Act licence includes the conditions that OFCOM consider appropriate for

securing that—

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

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           (a)           the procedures which, by virtue of section 318, are established and

maintained for handling and resolving complaints about the

observance of standards set under section 312, and

           (b)           their functions under Part 5 of the 1996 Act in relation to that service,

            are brought to the attention of the public (whether by means of broadcasts or

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otherwise).

     (2)    Conditions included in a licence by virtue of subsection (1) may require the

holder of the licence to comply with every direction given to him by OFCOM

for the purpose mentioned in that subsection.

Power to proscribe unacceptable foreign television and radio services

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 322   Proscription orders

     (1)    Where—

           (a)           a foreign service to which this section applies comes to OFCOM’s

attention, and

           (b)           they consider that the service is unacceptable and should be the subject

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of an order under this section,

            they must send a notification to the Secretary of State giving details of the

service and their reasons for considering that an order should be made.

     (2)    A service is not to be considered unacceptable by OFCOM unless they are

satisfied that—

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           (a)           programmes containing objectionable matter are included in the

service; and

           (b)           that the inclusion of objectionable matter in programmes so included is

occurring repeatedly.

     (3)    Matter is objectionable for the purposes of subsection (2) only if—

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           (a)           it offends against taste or decency;

           (b)           it is likely to encourage or to incite the commission of crime;

           (c)           it is likely to lead to disorder; or

           (d)           it is likely to be offensive to public feeling.

     (4)    Where the Secretary of State has received a notification under this section in the

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case of a service, he may make an order—

           (a)           identifying the service in such manner as he thinks fit; and

           (b)           proscribing it.

     (5)    The Secretary of State is not to make an order proscribing a service unless he is

satisfied that the making of the order is—

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           (a)           in the public interest; and

           (b)           compatible with the international obligations of the United Kingdom.

     (6)    The television and sound services to which this section applies are—

           (a)           television licensable content services provided otherwise than by

broadcasting from a satellite;

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           (b)           digital television programme services;

           (c)           digital additional television services;

           (d)           radio licensable sound services provided otherwise than by being

broadcast from a satellite;

 

 

 
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