House of Lords portcullis
House of Lords
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Communications Bill


Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    323

 

     (3)    In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the

Office of Fair Trading), after the words “the OFT”, in each place where they

occur, there shall be inserted “and OFCOM”.

     (4)    In subsection (3)(b)—

           (a)           for “section 31(2)” there shall be substituted “section 276 of the

5

Communications Act 2003”; and

           (b)           for “section 31(1) and (2)” there shall be substituted “that section of that

Act of 2003”.

     (5)    In subsection (5)(c) (declaration without notification), after “the OFT” there

shall be inserted “or OFCOM or both of them”.

10

     (6)    In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III

powers)—

           (a)           for “The OFT may not” there shall be substituted “Neither the OFT nor

OFCOM may”; and

           (b)           for paragraph (a) there shall be substituted—

15

                        “(a)                           the Secretary of State has been notified by the OFT or (as

the case may be) by OFCOM of its or their intention to

do so; and”.

     (7)    In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for

the words from the beginning to “assist” in paragraph (a) there shall be

20

substituted—

           “(8)              Where the OFT or OFCOM is or are proposing to exercise any Chapter

III powers in respect of a relevant agreement, it or they must give the

Secretary of State particulars of the agreement and such other

information—

25

                  (a)                 it considers or (as the case may be) they consider will assist”.

     (8)    In subsection (9), in the definition of “Chapter III powers”, for “given to the

OFT by” there shall be substituted “of the OFT and of OFCOM under”.

Chapter 2

Newspaper mergers

30

Introductory

 366   Repeal of existing newspaper merger regime

Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger

references) shall cease to have effect.

 367   Repeal of exclusion for newspaper mergers from general merger controls

35

Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers

from references under Part 3 of that Act) shall cease to have effect.

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    324

 

Adaptation for newspaper mergers of main merger regime

 368   Newspaper public interest considerations

After section 58(2) of the Enterprise Act 2002 (c. 40) (considerations specified as

public interest considerations for the purpose of the main merger regime) there

shall be inserted—

5

           “(2A)              The need for—

                  (a)                 accurate presentation of news; and

                  (b)                 free expression of opinion;

                         in newspapers is specified in this section.

           (2B)              The need for, to the extent that it is reasonable and practicable, a

10

plurality of views in newspapers in each market for newspapers in the

United Kingdom or a part of the United Kingdom is specified in this

section.”

 369   Adaptation of role of OFT in initial investigations and reports

     (1)    In section 44(3)(b) of the Enterprise Act 2002 (initial report by OFT in public

15

interest cases must include summary of representations about public interest

considerations) after the word “concerned” there shall be inserted “(other than

a newspaper public interest consideration)”.

     (2)    After section 44(5) of that Act there shall be inserted—

           “(5A)              The report may, in particular, contain a summary of any

20

representations about the case which have been received by the OFT

and which relate to any newspaper public interest consideration

mentioned in the intervention notice concerned and which is or may be

relevant to the Secretary of State’s decision as to whether to make a

reference under section 45.”

25

     (3)    After section 44(7) of that Act there shall be inserted—

           “(8)              In this Part “newspaper public interest consideration” means any

consideration which, at the time of the giving of the intervention notice

concerned—

                  (a)                 is specified in section 58(2A) or (2B); or

30

                  (b)                 in the opinion of the Secretary of State, is concerned with

newspapers and ought to be specified in section 58.

           (9)              In this Part “newspaper” means a daily, Sunday or local (other than

daily or Sunday) newspaper circulating wholly or mainly in the United

Kingdom or in a part of the United Kingdom.

35

           (10)              The Secretary of State may by order amend subsection (9).”

 370   Additional investigation and report by OFCOM

After section 44 of the Enterprise Act 2002 (investigation and report by OFT in

public interest cases) there shall be inserted—

       “44A Additional investigation and report by OFCOM: newspaper mergers

40

           (1)           Subsection (2) applies where—

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    325

 

                  (a)                 the Secretary of State has given an intervention notice in relation

to a relevant merger situation; and

                  (b)                 the intervention notice mentions any newspaper public interest

consideration.

           (2)           OFCOM shall, within such period as the Secretary of State may require,

5

give a report to the Secretary of State on the effect of the consideration

or considerations concerned on the case.

           (3)           The report shall contain—

                  (a)                 advice and recommendations on any newspaper public interest

consideration mentioned in the intervention notice concerned

10

and which is or may be relevant to the Secretary of State’s

decision as to whether to make a reference under section 45; and

                  (b)                 a summary of any representations about the case which have

been received by OFCOM and which relate to any such

consideration.

15

           (4)           OFCOM shall carry out such investigations as they consider

appropriate for the purposes of producing a report under this section.”

Extension of special public interest regime

 371   Extension of special public interest regime for certain newspaper mergers

     (1)    Section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State

20

in special public interest cases) shall be amended as follows.

     (2)    For subsections (3) and (4) (definition of “special merger situation”) there shall

be substituted—

           “(3)              For the purposes of this Part a special merger situation has been created

if—

25

                  (a)                 the condition mentioned in subsection (3A) is satisfied; and

                  (b)                 immediately before the enterprises concerned ceased to be

distinct, either—

                        (i)                        the conditions mentioned in subsection (3B) were

satisfied; or

30

                        (ii)                       the condition mentioned in subsection (3C) was

satisfied.

           (3A)              The condition mentioned in this subsection is that—

                  (a)                 no relevant merger situation has been created because of section

23(1)(b) and (2)(b); but

35

                  (b)                 a relevant merger situation would have been created if those

enactments were disregarded.

           (3B)              The conditions mentioned in this subsection are that—

                  (a)                 at least one of the enterprises concerned was carried on in the

United Kingdom or by or under the control of a body corporate

40

incorporated in the United Kingdom; and

                  (b)                 a person carrying on one or more of the enterprises concerned

was a relevant government contractor.

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    326

 

           (3C)              The condition mentioned in this subsection is that, in relation to the

supply of newspapers of any description, at least one-quarter of all the

newspapers of that description which were supplied in the United

Kingdom, or in a substantial part of the United Kingdom, were

supplied by the person or persons by whom one of the enterprises

5

concerned was carried on.”

     (3)    After subsection (6) there shall be inserted—

           “(6A)              For the purpose of deciding whether the proportion of one-quarter

mentioned in subsection (3C) is fulfilled with respect to newspapers of

any description, the decision-making authority shall apply such

10

criterion (whether value, cost, price, quantity, capacity, number of

workers employed or some other criterion, of whatever nature), or such

combination of criteria, as the decision-making authority considers

appropriate.

           (6B)                            References in subsection (3C) to the supply of newspapers shall, in

15

relation to newspapers of any description which are the subject of

different forms of supply, be construed in whichever of the following

ways the decision-making authority considers appropriate—

                  (a)                 as references to any of those forms of supply taken separately;

                  (b)                 as references to all those forms of supply taken together; or

20

                  (c)                 as references to any of those forms of supply taken in groups.

           (6C)              For the purposes of subsection (6B) the decision-making authority may

treat newspapers as being the subject of different forms of supply

whenever—

                  (a)                 the transactions concerned differ as to their nature, their parties,

25

their terms or their surrounding circumstances; and

                  (b)                 the difference is one which, in the opinion of the decision-

making authority, ought for the purposes of that subsection to

be treated as a material difference.

           (6D)              The criteria for deciding when newspapers can be treated, for the

30

purposes of this section, as newspapers of a separate description shall

be such as in any particular case the decision-making authority

considers appropriate in the circumstances of that case.

           (6E)              The Secretary of State may by order amend the condition mentioned in

subsection (3)(b)(ii).”

35

 372   Adaptation of role of OFT in special public interest regime

     (1)    Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by

OFT in special public interest cases) shall be amended as follows.

     (2)    In subsection (3)(b) (report must include summary of representations about

considerations specified in section 58) after the word “concerned” there shall

40

be inserted “(other than a consideration which, at the time of the giving of the

notice, was specified in section 58(2A) or (2B))”.

     (3)    In subsection (4) for the words “59(4)(b)” there shall be substituted “59(3B)(b)”.

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    327

 

     (4)    After subsection (4) there shall be inserted—

           “(4A)              The report may, in particular, contain a summary of any

representations about the case which have been received by the OFT

and which relate to any consideration which—

                  (a)                 is mentioned in the special intervention notice concerned and,

5

at the time of the giving of that notice, was specified in section

58(2A) or (2B); and

                  (b)                 is or may be relevant to the Secretary of State’s decision as to

whether to make a reference under section 62.”

 373   Additional investigation and report by OFCOM: special public interest cases

10

After section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and

report by OFT in special public interest cases) there shall be inserted—

       “61A Additional investigation and report by OFCOM: certain newspaper

mergers

           (1)           Subsection (2) applies where—

15

                  (a)                 the Secretary of State has given a special intervention notice in

relation to a special merger situation; and

                  (b)                 the special intervention notice mentions any consideration

which, at the time of the giving of the notice, was specified in

section 58(2A) or (2B).

20

           (2)           OFCOM shall, within such period as the Secretary of State may require,

give a report to the Secretary of State on the effect of the consideration

or considerations concerned on the case.

           (3)           The report shall contain—

                  (a)                 advice and recommendations on any consideration which—

25

                        (i)                        is mentioned in the special intervention notice

concerned and, at the time of the giving of that notice,

was specified in section 58(2A) or (2B); and

                        (ii)                       is or may be relevant to the Secretary of State’s decision

as to whether to make a reference under section 62; and

30

                  (b)                 a summary of any representations about the case which have

been received by OFCOM and which relate to any such

consideration.

           (4)           OFCOM shall carry out such investigations as they consider

appropriate for the purposes of producing a report under this section.”

35

New general functions in relation to newspaper mergers

 374   Public consultation in relation to newspaper mergers

After section 104 of the Enterprise Act 2002 there shall be inserted—

       “104A Public consultation in relation to newspaper mergers

           (1)           Subsection (2) applies where the Commission—

40

                  (a)                 is preparing—

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    328

 

                        (i)                        a report under section 50 on a reference which specifies

a newspaper public interest consideration; or

                        (ii)                       a report under section 65 on a reference which specifies

a consideration specified in section 58(2A) or (2B); and

                  (b)                 is not under a duty to disregard the consideration concerned.

5

           (2)           The Commission shall have regard (among other things) to the need to

consult the public so far as they might be affected by the creation of the

relevant merger situation or special merger situation concerned and so

far as such consultation is practicable.

           (3)           Any consultation of the kind mentioned in subsection (2) may be

10

undertaken by the Commission by consulting such representative

sample of the public or section of the public concerned as the

Commission considers appropriate.”

 375   General information duties in relation to newspaper mergers

     (1)    Section 105 of the Enterprise Act 2002 (c. 40) (general information duties of

15

OFT and Competition Commission) shall be amended as follows.

     (2)    After subsection (1) there shall be inserted—

           “(1A)              Where OFCOM decide to investigate a matter so as to make a report

under section 44A or 61A, they shall, so far as practicable, take such

action as they consider appropriate to bring information about the

20

investigation to the attention of those whom they consider might be

affected by the creation of the relevant merger situation concerned or

(as the case may be) the special merger situation concerned.”

     (3)    In subsection (2) (exclusion for merger notices) for the words “Subsection (1)

does” there shall be substituted “Subsections (1) and (1A) do”.

25

     (4)    In subsection (3) (duty of OFT to give requested assistance to Competition

Commission)—

           (a)           after the word “Commission”, where it occurs for the first time, there

shall be inserted “or OFCOM”; and

           (b)           after the word “Commission”, where it occurs for the second, third and

30

fourth time, there shall be inserted “or (as the case may be) OFCOM”.

     (5)    After subsection (3) there shall be inserted—

           “(3A)              OFCOM shall give the Commission or the OFT—

                  (a)                 such information in their possession as the Commission or (as

the case may be) the OFT may reasonably require to enable the

35

Commission or (as the case may be) the OFT to carry out its

functions under this Part; and

                  (b)                 any other assistance which the Commission or (as the case may

be) the OFT may reasonably require for the purpose of assisting

it in carrying out its functions under this Part and which it is

40

within the power of OFCOM to give.”

     (6)    In subsection (4) (duty of OFT to give unrequested information to Competition

Commission)—

           (a)           after the word “Commission”, where it occurs for the first time, there

shall be inserted “or OFCOM”; and

45

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    329

 

           (b)           after the word “Commission”, where it occurs for the second and third

time, there shall be inserted “or (as the case may be) OFCOM”.

     (7)    After subsection (4) there shall be inserted—

           “(4A)              OFCOM shall give the Commission or the OFT any information in their

possession which has not been requested by the Commission or (as the

5

case may be) the OFT but which, in the opinion of OFCOM, would be

appropriate to give to the Commission or (as the case may be) the OFT

for the purpose of assisting it in carrying out its functions under this

Part.”

     (8)    In subsection (5) (duty of OFT and Competition Commission to give requested

10

assistance to the Secretary of State) after the word “OFT”, in both places where

it occurs, there shall be inserted “, OFCOM”.

     (9)    In subsection (6) (duty of OFT to give unrequested information to Secretary of

State)—

           (a)           after the word “OFT”, where it occurs for the first time, there shall be

15

inserted “and OFCOM”;

           (b)           for the word “its” there shall be substituted “their”; and

           (c)           after the word “OFT”, where it occurs for the second time, there shall be

inserted “or (as the case may be) OFCOM”.

     (10)   In subsection (7) (duty to have regard to information given) for the words “or

20

(4)” there shall be substituted “, (3A), (4) or (4A)”.

     (11)   After subsection (7) there shall be inserted—

           “(7A)              OFCOM shall have regard to any information given to them under

subsection (3) or (4); and the OFT shall have regard to any information

given to it under subsection (3A) or (4A).”

25

 376   Advice and information in relation to newspaper mergers

After section 106 of the Enterprise Act 2002 (c. 40) there shall be inserted—

       “106A Advice and information in relation to newspaper mergers

           (1)           The Secretary of State may prepare and publish general advice and

information about the considerations specified in section 58(2A) and

30

(2B).

           (2)           The Secretary of State may at any time publish revised, or new, advice

or information.

           (3)           Advice or information published under this section shall be prepared

with a view to—

35

                  (a)                 explaining the considerations specified in section 58(2A) and

(2B) to persons who are likely to be affected by them; and

                  (b)                 indicating how the Secretary of State expects this Part to operate

in relation to such considerations.

           (4)           Any advice or information published by the Secretary of State under

40

this section shall be published in such manner as the Secretary of State

considers appropriate.

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2003
Revised 10 June 2003