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Communications Bill


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

    203

 

 226   Giving effect to reviews under ss. 223 and 224

     (1)    As soon as reasonably practicable after making a determination under section

225 on an application under section 223 or 224, OFCOM must give a

notification of their determination to the applicant.

     (2)    The notification must set out—

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           (a)           the determination made by OFCOM;

           (b)           the modifications of the applicant’s licence that are required to give

effect to the determination;

           (c)           a date by which the applicant must notify OFCOM whether or not he

accepts the determination and modifications; and

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           (d)           a subsequent date by which the applicant’s licence will cease to have

effect if he does not.

     (3)    The modifications set out in accordance with subsection (2)(b) must secure that

the amount falling to be paid under the conditions of the applicant’s licence for

each calendar year subsequent to that for which an amount has been

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determined in accordance with section 225(2)(a) is the amount so determined

as increased by the appropriate percentage.

     (4)    In the case of a determination on an application under section 223, the date

specified in accordance with subsection (2)(d) must not fall before whichever

is the earlier of —

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           (a)                         the next notional expiry date after the application for the review; and

           (b)                         the end of the licensing period in which that application was made.

     (5)    Where the applicant notifies OFCOM that he accepts the determination—

           (a)           his licence is to have effect with the modifications set out in OFCOM’s

notification; and

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           (b)           all such adjustments by way of payment or repayment as may be

necessary for giving effect to the modifications are to be made in

respect of any payments already made for years or periods affected by

the modifications.

     (6)    Where the applicant does not, before the date specified in accordance with

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paragraph (c) of subsection (2), notify OFCOM that he accepts the

determination, his licence shall have effect as if the period for which it is to

continue in force ended with the time specified in accordance with paragraph

(d) of that subsection.

     (7)    Where the time at which a licence would cease to have effect in accordance

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with subsection (6) is the end of a licensing period, that subsection does not

affect any rights of the licence holder with respect to the renewal of his licence

from the end of that period.

     (8)    In this section—

                    “the appropriate percentage” has the same meaning as in section 19 of the

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1990 Act;

                     “licensing period” means—

                  (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

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the previous licensing period;

                    “notional expiry date” means a first or subsequent notional expiry date

within the meaning of section 223.

 

 

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

    204

 

 227   Report in anticipation of new licensing round

     (1)    OFCOM must, in anticipation of the end of each licensing period—

           (a)           prepare a report under this section; and

           (b)           submit it to the Secretary of State no later than thirty months before the

end of that period.

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     (2)    A report under this section must set out OFCOM’s opinion on the effect of each

of the matters mentioned in subsection (3) on the capacity of the holders of

relevant licences to contribute, in the next licensing period, to the fulfilment of

the purposes of public service television broadcasting in the United Kingdom

at a cost to the licence holders that is commercially sustainable.

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     (3)    Those matters are—

           (a)           the arrangements that (but for an order under section 228) would allow

for the renewal of relevant licences from the end of the current licensing

period; and

           (b)           the conditions included in the regulatory regimes for the services

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provided under relevant licences.

     (4)    A report under this section must also include the recommendations (if any)

which OFCOM consider, in the light of the opinion set out in the report, should

be made to the Secretary of State for the exercise by him of—

           (a)           his power under section 228; or

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           (b)           any of the powers to make statutory instruments that are conferred on

him by Chapter 4 of this Part.

     (5)    Where the Secretary of State makes an order under section 222 after receiving

a report under this section in anticipation of the end of the licensing period that

is extended by the order—

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           (a)           he may require OFCOM to prepare a supplementary report in the light

of the postponement of the beginning of the next licensing period; and

           (b)           it shall be the duty of OFCOM, within such period as may be specified

by the Secretary of State, to prepare the required supplementary report

and to submit it to him.

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     (6)    References in this section to the purposes of public service television

broadcasting in the United Kingdom are to be construed in accordance with

subsection (4) of section 262; and subsection (5) of that section shall have effect

for the purposes of a report under this section as it applies for the purposes of

a report under that section.

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     (7)    In this section—

                    “licensing period” means—

                  (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

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the previous licensing period;

                    “relevant licence” means—

                  (a)                 a licence to provide a Channel 3 service;

                  (b)                 a licence to provide Channel 5; or

                  (c)                 the licence to provide the public teletext service.

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

    205

 

 228   Orders suspending rights of renewal

     (1)    This section applies where the Secretary of State has received and considered

a report submitted to him by OFCOM under section 227.

     (2)    If—

           (a)           the report contains a recommendation by OFCOM for the making of an

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order under this section, or

           (b)           the Secretary of State considers, notwithstanding the absence of such a

recommendation, that it would be appropriate to do so,

            he may by order provide that licences for the time being in force that are of the

description specified in the order are not to be renewable under section 214 or

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220 from the end of the licensing period in which he received the report.

     (3)    An order under this section preventing the renewal of licences from the end of

a licensing period must be made at least eighteen months before the end of that

period.

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

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renewal of licences from the end of the initial licensing period unless he has

fixed a date before the end of that period as the date for digital switchover.

     (5)    Where the Secretary of State postpones the date for digital switchover after

making an order under this section preventing the renewal of licences from the

end of the initial licensing period, the order shall have effect only if the date to

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which digital switchover is postponed falls before the end of that period.

     (6)           Subsection (5) does not affect the power of the Secretary of State to make

another order under this section after postponing the date for digital

switchover.

     (7)    An order under this section with respect to Channel 3 licences must be an order

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of one of the following descriptions—

           (a)           an order applying to every licence to provide a Channel 3 service;

           (b)           an order applying to every licence to provide a national Channel 3

service; or

           (c)           an order applying to every licence to provide a regional Channel 3

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service.

     (8)    An order under this section does not affect—

           (a)           the person to whom a licence may be granted on an application made

under section 15 of the 1990 Act or under paragraph 3 of Schedule 10 to

this Act; or

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           (b)           rights of renewal in respect of licences first granted so as to take effect

from the beginning of a licensing period beginning after the making of

the order, or from a subsequent time.

     (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)   Subsection (8) of section 222 applies for construing references in this section to

the date for digital switchover as it applies for the purposes of that section.

     (11)   In this section—

                    “initial licensing period” means the licensing period ending with the

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initial expiry date; and

 

 

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

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                    “licensing period” has the same meaning as in section 227.

Replacement of Channel 4 licence

 229   Replacement of Channel 4 licence

     (1)    On the commencement of this subsection—

           (a)           Channel 4 shall cease to be licensed under the licence in force for the

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purposes of section 24(3) of the 1990 Act immediately before the

commencement of this subsection; and

           (b)           a licence granted for those purposes in accordance with the following

provisions of this section shall come into force as the licence under

which Channel 4 is licensed.

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     (2)    It shall be the duty of OFCOM, as soon as practicable after the television

transfer date—

           (a)           to prepare a draft of a licence under Part 1 of the 1990 Act to replace the

licence that is likely to be in force for the purposes of section 24(3) of the

1990 Act when subsection (1) of this section comes into force;

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           (b)           to notify C4C of the terms and conditions of the replacement licence

they propose; and

           (c)           after considering any representations made by C4C, to grant such a

replacement licence to C4C so that it takes effect in accordance with

paragraph (b) of subsection (1) of this section.

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     (3)    A replacement licence proposed or granted under this section—

           (a)           must be a licence to provide a service with a view to its being broadcast

in digital form; and

           (b)           must contain such conditions (if any) requiring C4C to ensure that the

whole or a part of Channel 4 is also provided for broadcasting in

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analogue form as OFCOM consider appropriate.

     (4)    The conditions included in a licence by virtue of subsection (3)(b) must be such

as to enable effect to be given to any directions given from time to time by the

Secretary of State to OFCOM about the continuance of the provision of services

in analogue form.

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     (5)    Where a replacement licence proposed or granted under this section contains

a condition falling within subsection (3)(b), it must also contain a condition

that—

           (a)           the programmes (apart from the advertisements) that are included in

the service provided in analogue form, and

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           (b)           the times at which they are broadcast,

            are to be the same as in the case of, or of the specified part of, the service

provided for broadcasting in digital form.

     (6)    The terms of a replacement licence proposed or granted under this section

must provide for it to continue in force until the end of 2014.

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     (7)    But—

           (a)           such a licence may be renewed, on one or more occasions, for such

period as OFCOM may think fit in relation to the occasion in question;

and

 

 

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

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           (b)           the provisions of this section (apart from subsections (1), (2) and (6)) are

to apply in the case of a licence granted by way of a renewal of a licence

granted under this section as they apply in the case of the replacement

licence.

     (8)    The conditions of a replacement licence proposed or granted under this section

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must include the conditions that OFCOM consider appropriate for the purpose

of performing their duty under section 261.

     (9)    The conditions of such a licence must also include a condition prohibiting the

imposition, whether directly or indirectly, of the following—

           (a)           charges on persons in respect of their reception in the United Kingdom

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of Channel 4;

           (b)           charges on persons in respect of their reception in the United Kingdom

of any service consisting in the provision of assistance for disabled

people in relation to programmes included in Channel 4; and

           (c)           charges on persons in respect of their reception in the United Kingdom

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of any service (other than one mentioned in paragraph (b)) which is an

ancillary service in relation to so much of Channel 4 as is provided in

digital form.

     (10)   It shall be unlawful to impose a charge in contravention of a condition falling

within subsection (9).

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Television licensable content services

 230   Meaning of “television licensable content service”

     (1)    In this Part “television licensable content service” means (subject to section 231)

any service falling within subsection (2) in so far as it is provided with a view

to its availability for reception by members of the public being secured by one

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or both of the following means—

           (a)           the broadcasting of the service (whether by the person providing it or

by another) from a satellite; or

           (b)           the distribution of the service (whether by that person or by another) by

any means involving the use of an electronic communications network.

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     (2)    A service falls within this subsection if it—

           (a)           is provided (whether in digital or in analogue form) as a service that is

to be made available for reception by members of the public; and

           (b)           consists of television programmes or electronic programme guides, or

both.

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     (3)           Where—

           (a)           a service consisting of television programmes, an electronic

programme guide or both (“the main service”) is provided by a person

as a service to be made available for reception by members of the

public, and

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           (b)           that person provides the main service with other services or facilities

that are ancillary to, or otherwise relate to, the main service and are also

provided so as to be so available or in order to make a service so

available,

 

 

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

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            subsection (1) has effect as if the main service and such of the other services or

facilities as are relevant ancillary services and are not two-way services

constituted a single service falling within subsection (2).

     (4)           Where a person providing the main service provides it with a facility giving

access to another service, the other service shall also be taken for the purposes

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of this section as provided by that person with the main service only if what is

comprised in the other service is something over which that person has general

control.

     (5)    A service is a two-way service for the purposes of this section if it is provided

by means of an electronic communications network and an essential feature of

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the service is that the purposes for which it is provided involve the use of that

network, or a part of it, both—

           (a)           for the transmission of visual images or sounds (or both) by the person

providing the service to users of the service; and

           (b)           for the transmission of visual images or sounds (or both) by those users

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for reception by the person providing the service or by other users of

the service.

     (6)    In this section—

                    “electronic programme guide” means a service which consists of—

                  (a)                 the listing or promotion, or both the listing and the promotion,

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of some or all of the programmes included in any one or more

programme services the providers of which are or include

persons other than the provider of the guide; and

                  (b)                 a facility for obtaining access, in whole or in part, to the

programme service or services listed or promoted in the guide;

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                    “relevant ancillary service”, in relation to the main service, means a

service or facility provided or made available by the provider of the

main service that consists of or gives access to—

                  (a)                 assistance for disabled people in relation to some or all of the

programmes included in the main service;

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                  (b)                 a service (apart from advertising) which is not an electronic

programme guide but relates to the promotion or listing of

programmes so included; or

                  (c)                 any other service (apart from advertising) which is ancillary to

one or more programmes so included and relates directly to

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their contents.

 231   Services that are not television licensable content services

     (1)    A service is not a television licensable content service to the extent that it is

provided with a view to its being broadcast by means of a multiplex service.

     (2)    A service is not a television licensable content service to the extent that it

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consists of a service the provision of which is authorised by—

           (a)           a licence to provide a television broadcasting service;

           (b)           the licence to provide the public teletext service; or

           (c)           a licence to provide additional television services.

     (3)    A service is not a television licensable content service to the extent that it is

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provided by means of an electronic communications service if—

 

 

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

    209

 

           (a)           it forms part only of a service provided by means of that electronic

communications service or is one of a number of services access to

which is made available by means of a service so provided; and

           (b)           the service of which it forms part, or by which it may be accessed, is

provided for purposes that do not consist wholly or mainly in making

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available television programmes or radio programmes (or both) for

reception by members of the public.

     (4)    A service is not a television licensable content service if it is a two-way service

(within the meaning of section 230).

     (5)    A service is not a television licensable content service if—

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           (a)           it is distributed by means of an electronic communications network

only to persons all of whom are on a single set of premises; and

           (b)           that network is wholly within those premises and is not connected to

an electronic communications network any part of which is outside

those premises.

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     (6)    For the purposes of subsection (5)—

           (a)           a set of premises is a single set of premises if, and only if, the same

person is the occupier of all the premises; and

           (b)           two or more vehicles are capable of constituting a single set of premises

if, and only if, they are coupled together.

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     (7)    A service is not a television licensable content service if it is provided for the

purpose only of being received by persons who have qualified as users of the

service by reason of being—

           (a)           persons who have a business interest in the programmes included in

the service; or

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           (b)           persons who are to receive the programmes for the purpose only of

showing them to persons falling within sub-paragraph (a) or to persons

all of whom are on the business premises of the person receiving them.

     (8)    For the purposes of subsection (7) a person has a business interest in

programmes if he has an interest in receiving or watching them—

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           (a)           for the purposes of a business carried on by him; or

           (b)           for the purposes of his employment.

     (9)    In this section—

                    “business premises”, in relation to a person, means premises at or from

which any business of that person is carried on;

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                    “multiplex service” means a television multiplex service, a radio

multiplex service or a general multiplex service;

                    “premises” includes a vehicle;

                    “vehicle” includes a vessel, aircraft or hovercraft.

     (10)   References in this section, in relation to a person, to a business include

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references to—

           (a)           any business or other activities carried on by a body of which he is a

member and the affairs of which are managed by its members; and

           (b)           the carrying out of any functions conferred on that person, or on any

such body, by or under any enactment.

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