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Communications Bill


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

    237

 

 264   Statements of programme policy

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

condition requiring the provider of the channel—

           (a)           as soon as practicable after the coming into force of this section and

subsequently at annual intervals, to prepare a statement of programme

5

policy; and

           (b)           to monitor his own performance in the carrying out of the proposals

contained in the statements made in pursuance of the condition.

     (2)    The condition must require every statement of programme policy prepared in

accordance with the condition to set out the proposals of the provider of the

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channel for securing that, during the following year—

           (a)           the public service remit for the channel will be fulfilled; and

           (b)           the duties imposed on the provider by virtue of sections 275 to 293 will

be performed.

     (3)    The condition must also require every such statement to contain a report on the

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performance of the provider of the channel in the carrying out, during the

period since the previous statement, of the proposals contained in that

statement.

     (4)    The condition must also provide that every such statement—

           (a)           must be prepared having regard to guidance given by OFCOM;

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           (b)           must be prepared taking account of the reports previously published

by OFCOM under sections 262 and 355;

           (c)           must take special account of the most recent such reports;

           (d)           must be published by the provider of the channel in question as soon as

practicable after its preparation is complete; and

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           (e)           must be published in such manner as, having regard to any guidance

given by OFCOM, the provider considers appropriate.

     (5)    In preparing guidance about the preparation of such a statement, OFCOM

must have regard, in particular, to the matters which, in the light of the

provisions of section 262(4) and (6), they consider should be included in

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statements of programme policy.

     (6)    It shall be the duty of OFCOM—

           (a)           from time to time to review the guidance for the time being in force for

the purposes of this section; and

           (b)           to make such revisions of that guidance as they think fit.

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     (7)    The conditions of a licence to provide a licensed public service channel may

provide that a previous statement of policy made by the provider of the

channel is to be treated for the purposes of this Part—

           (a)           as if it were a statement made in relation to such period as may be so

specified; and

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           (b)           were a statement of programme policy for the purposes of a condition

imposed under this section.

     (8)    The reference in subsection (7) to a previous statement of policy is a reference

to any statement made by the provider of the channel—

           (a)           whether before or after the commencement of this section, for the

45

purposes of his application for a Broadcasting Act licence for the

channel; or

 

 

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

    238

 

           (b)           at any time before the commencement of this section, for any other

purpose.

     (9)    A condition under subsection (7) cannot contain provision the effect of which

is to postpone the time at which a licence holder is required to make the first

statement of programme policy which (apart from that subsection) he is

5

required to make in pursuance of a condition imposed under this section.

 265   Changes of programme policy

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

condition requiring compliance with subsection (2) in the case of a statement

of programme policy containing proposals for a significant change.

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     (2)    This subsection requires the provider of the channel—

           (a)           to consult OFCOM before preparing the statement; and

           (b)           to take account, in the preparation of the statement, of any opinions

expressed to the provider of the channel by OFCOM.

     (3)    A condition imposed under this section must further provide that, if it appears

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to OFCOM that a statement of programme policy has been prepared by the

provider of the channel in contravention of a condition imposed under

subsection (1), the provider is—

           (a)           to revise that statement in accordance with any directions given to him

by OFCOM; and

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           (b)           to publish a revision of the statement in accordance with any such

directions only after the revision has been approved by OFCOM.

     (4)    A change is a significant change for the purposes of this section if it is a change

as a result of which the channel would in any year be materially different in

character from in previous years.

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     (5)    In determining for the purposes of any condition under this section whether a

change is a significant change—

           (a)           regard must be had to any guidance issued by OFCOM;

           (b)           the changes to be considered include any changes that, together with

any proposed change for a particular year, would constitute a change

30

occurring gradually over a period of not more than three years; and

           (c)           the previous years with which a comparison is to be made must be

those immediately preceding the year in which the change is made, or

in which the changes comprised in it began to occur.

     (6)    It shall be the duty of OFCOM—

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           (a)           from time to time to review the guidance for the time being in force for

the purposes of this section; and

           (b)           to make such revisions of that guidance as they think fit.

 266   Statements of service policy by the public teletext provider

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

40

requiring the public teletext provider—

           (a)           as soon as practicable after the coming into force of this section and

subsequently at annual intervals, to prepare a statement of service

policy; and

 

 

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

    239

 

           (b)           to monitor his own performance in the carrying out of the proposals

contained in statements made in pursuance of the condition.

     (2)    The condition must require every statement of service policy prepared in

accordance with the condition to set out the proposals of the public teletext

provider for securing that, during the following year, the public service remit

5

for the public teletext service will be fulfilled.

     (3)    The condition must also require every such statement to contain a report on the

performance of the public teletext provider in the carrying out, during the

period since the previous statement, of the proposals contained in that

statement.

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     (4)    The condition must provide that the proposals or report for a period in the

course of which the public teletext service will comprise or has comprised

both—

           (a)           an analogue teletext service, and

           (b)           a teletext service provided in digital form,

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            must deal separately with each of those services.

     (5)    The condition must also provide that every statement in pursuance of the

condition—

           (a)           must be prepared having regard to guidance given by OFCOM;

           (b)           must be prepared taking account of the reports previously published

20

by OFCOM under sections 262 and 355;

           (c)           must take special account of the most recent such reports;

           (d)           must be published by the public teletext provider as soon as practicable

after its preparation is complete; and

           (e)           must be published in such manner as, having regard to any guidance

25

given by OFCOM, that provider considers appropriate.

     (6)    In preparing guidance about the preparation of such a statement, OFCOM

must have regard, in particular, to the matters which, in the light of the

provisions of section 262(4) and (6), they consider should be included in

statements of service policy by the public teletext provider.

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     (7)    It shall be the duty of OFCOM—

           (a)           from time to time to review the guidance for the time being in force for

the purposes of this section; and

           (b)           to make such revisions of that guidance as they think fit.

     (8)    The conditions of the licence to provide the public teletext service may provide

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that a previous statement of policy made by the public teletext provider is to be

treated for the purposes of this Part—

           (a)           as if it were a statement made in relation to such period as may be so

specified; and

           (b)           were a statement of service policy for the purposes of a condition

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imposed under this section.

     (9)    The reference in subsection (8) to a previous statement of policy is a reference

to any statement made by the public teletext provider—

           (a)           whether before or after the commencement of this section, for the

purposes of his application for a Broadcasting Act licence for the public

45

teletext service or for the existing service (within the meaning of section

219); or

 

 

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

    240

 

           (b)           at any time before the commencement of this section, for any other

purpose.

     (10)   A condition under subsection (8) cannot contain provision the effect of which

is to postpone the time at which a licence holder is required to make the first

statement of service policy which (apart from that subsection) he is required to

5

make in pursuance of a condition imposed under this section.

 267   Changes of service policy

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

requiring compliance with subsection (2) in the case of a statement of service

policy containing proposals for a significant change.

10

     (2)    This subsection requires the provider of the service—

           (a)           to consult OFCOM before preparing the statement; and

           (b)           to take account, in the preparation of the statement, of any opinions

expressed to the provider of the service by OFCOM.

     (3)    A condition imposed under this section must further provide that, if it appears

15

to OFCOM that a statement of service policy has been prepared by the public

teletext provider in contravention of a condition imposed under subsection (1),

that provider is—

           (a)           to revise that statement in accordance with any directions given to him

by OFCOM; and

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           (b)           to publish a revision of the statement in accordance with any such

directions only after the revision has been approved by OFCOM.

     (4)    A change is a significant change for the purposes of this section if it is a change

as a result of which the service would in any year be materially different in

character from in previous years.

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     (5)    In determining for the purposes of any condition under this section whether a

change is a significant change—

           (a)           regard must be had to any guidance issued by OFCOM;

           (b)           the changes to be considered include any changes that, together with

any proposed change for a particular year, would constitute a change

30

occurring gradually over a period of not more than three years;

           (c)           the previous years with which a comparison is to be made must be

those immediately preceding the year in which the change is made, or

in which the changes comprised in it began to occur; and

           (d)           any change that is a significant change in relation to so much of the

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public teletext service as is provided in digital form or in relation to so

much of it as is provided in analogue form is to be regarded as a

significant change in relation to the whole service.

     (6)    It shall be the duty of OFCOM—

           (a)           from time to time to review the guidance for the time being in force for

40

the purposes of this section; and

           (b)           to make such revisions of that guidance as they think fit.

 268   Enforcement of public service remits

     (1)    This section applies if OFCOM are of the opinion that the provider of a licensed

public service channel or the public teletext provider—

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

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           (a)           has failed to fulfil the public service remit for that channel or the public

teletext service; or

           (b)           has failed, in any respect, to make an adequate contribution towards

the fulfilment of the purposes of public service television broadcasting

in the United Kingdom.

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     (2)    This section does not apply unless—

           (a)           OFCOM are of the opinion that the failure of the provider is serious and

is not excused by economic or market conditions; and

           (b)           OFCOM determine that the situation requires the exercise of their

powers under this section.

10

     (3)    In making a determination under subsection (2)(b), OFCOM must have regard,

in particular, to—

           (a)           the public service remit of that provider;

           (b)           the statements of programme policy or statements of service policy

made (or treated as made) by the provider under section 264 or 266;

15

           (c)           the record generally of the provider in relation to the carrying out of

obligations imposed by conditions of licences under the 1990 Act and

the 1996 Act (including past obligations);

           (d)           the effectiveness and efficiency of the provider in monitoring his own

performance; and

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           (e)           general economic and market conditions affecting generally the

providers of television programme services or the providers of

television multiplex services, or both of them.

     (4)    OFCOM shall have power to give directions to the provider to do one or both

of the following—

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           (a)           to revise the provider’s latest statement of programme policy, or

statement of service policy, in accordance with the directions; and

           (b)           to take such steps for remedying the provider’s failure as OFCOM may

specify in the direction as necessary for that purpose.

     (5)    A direction given under this section must set out—

30

           (a)           a reasonable timetable for complying with it; and

           (b)           the factors that will be taken into account by OFCOM in determining—

                  (i)                 whether or not a failure of the provider has been remedied; and

                  (ii)                whether or not to exercise their powers under subsection (6).

     (6)    If OFCOM are satisfied—

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           (a)           that the provider of a public service channel or the public teletext

provider has failed to comply with a direction under this section,

           (b)           that that provider is still failing to fulfil the public service remit for that

channel or service or adequately to contribute to the fulfilment of the

purposes of public service television broadcasting in the United

40

Kingdom, and

           (c)           that it would be both reasonable and proportionate to the seriousness

of that failure to vary the provider’s licence in accordance with this

subsection,

            OFCOM may, by notice to the provider, vary that licence so as to replace self-

45

regulation with detailed regulation.

     (7)    For the purposes of subsection (6) a variation replacing self-regulation with

detailed regulation is a variation which—

 

 

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

    242

 

           (a)           omits the conditions imposed by virtue of sections 263 to 267; and

           (b)           replaces those conditions with such specific conditions as OFCOM

consider appropriate for securing that the provider—

                  (i)                 fulfils the public service remit for his service; and

                  (ii)                makes an adequate contribution towards the fulfilment of the

5

purposes of public service television broadcasting in the United

Kingdom.

     (8)    If, at any time following a variation in accordance with subsection (6) of a

provider’s licence, OFCOM consider that detailed regulation is no longer

necessary, they may again vary the licence so as, with effect from such time as

10

they may determine—

           (a)           to provide for the conditions required by virtue of sections 263 to 267

again to be included in the regulatory regime for the service provided

by that provider; and

           (b)           to remove or modify some or all of the specific conditions inserted

15

under that subsection.

     (9)    Before giving a direction under this section to a provider or exercising their

power under this section to vary a provider’s licence, OFCOM must consult

that provider.

     (10)   In accordance with section 263(5), the reference in subsection (1) to a failure to

20

fulfil the public service remit for the public teletext service includes a failure to

fulfil that remit as respects only one of the services comprised in that service.

     (11)   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

25

for the purposes of the taking of action under this section as it applies for the

purposes of a review or report under that section.

 269   Power to amend public service remits

     (1)    The Secretary of State may by order modify any one or more of the following—

           (a)           the public service remit for any licensed public service channel or for

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the public teletext service;

           (b)           the purposes of public service television broadcasting in the United

Kingdom (within the meaning given by subsection (4) of section 262);

           (c)           the matters to which OFCOM are to have regard under subsections (5)

and (6) of that section.

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     (2)    The Secretary of State is not to make an order under this section except where—

           (a)           OFCOM have made a recommendation for the making of such an order

in their most recent report under section 227 or 262; or

           (b)           subsection (3) applies to the order.

     (3)    This subsection applies to an order if—

40

           (a)           it is made by the Secretary of State less than twelve months after the

date on which he has received a report under section 227;

           (b)           he has considered that report; and

           (c)           he is satisfied that the making of the order is required, notwithstanding

the absence of a recommendation by OFCOM, by circumstances or

45

other matters which are dealt with in that report or which (in his

opinion) should have been.

 

 

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

    243

 

     (4)    Before including a recommendation for the making of an order under this

section in a report under section 227 or 262, OFCOM must consult—

           (a)           members of the public in the United Kingdom;

           (b)           such public service broadcasters as they consider are likely to be

affected if the Secretary of State gives effect to the recommendation

5

they are proposing to make; and

           (c)           such of the other persons providing television and radio services as

OFCOM consider appropriate.

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

the persons mentioned in subsection (6) about its terms (even if the order is the

10

one recommended by OFCOM).

     (6)    Those persons are—

           (a)           OFCOM;

           (b)           such public service broadcasters as they consider are likely to be

affected by the order; and

15

           (c)           such of the other persons providing television and radio services as he

considers appropriate.

     (7)    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.

20

     (8)    In this section “public service broadcaster” means any of the persons who are

public service broadcasters for the purposes of section 262.

Must offer obligations etc. affecting public service television

 270   Must-offer obligations in relation to networks

     (1)    The regulatory regime for—

25

           (a)           every licensed public service channel,

           (b)           the public teletext service, and

           (c)           every licensed television service added by order under section 62 to the

list of must-carry services,

            includes the conditions that OFCOM consider appropriate for securing the

30

three objectives set out in this section (so far as they are not secured by

provision made under section 241).

     (2)    The first objective is that the channel or other service, so far as it is provided in

digital form, is at all times offered as available (subject to the need to agree

terms) to be broadcast or distributed by means of every appropriate network.

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     (3)    The second objective is that the person providing the channel or other service

does his best to secure that arrangements are entered into, and kept in force,

that ensure—

           (a)           that the channel or other service, so far as it is provided in digital form,

is broadcast or distributed on appropriate networks; and

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           (b)           that the broadcasting and distribution of the channel or other service,

in accordance with those arrangements, result in its being available for

reception, by means of appropriate networks, by as many members of

its intended audience as practicable.

 

 

 
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