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Communications Bill


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

    255

 

           (b)           a teletext service provided in digital form,

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

Independent and regional productions and programmes for public service television

 282   Code relating to programme commissioning

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

5

conditions that OFCOM consider appropriate for securing that the provider of

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

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

independent productions.

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

10

securing that the provider of every licensed public service channel—

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

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

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

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

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section.

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

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

in the manner described in guidance issued by OFCOM—

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

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commissioning of an independent production and for the conclusion of

a binding agreement;

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

independent production is commissioned, about the different

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

25

the commissioned production that are being disposed of;

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

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

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

about the duration and exclusivity of those rights;

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

accordance with the code and for demonstrating compliance with it;

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

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

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

35

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

manner that appears to OFCOM to be appropriate.

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

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

issued by OFCOM as to—

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

revision;

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

and

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

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

includes—

 

 

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

    256

 

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

submitted to OFCOM for approval;

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

OFCOM; and

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

5

modifications to have effect with those modifications.

     (6)    OFCOM—

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

of this section;

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

10

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

providers of licensed public service channels, persons who make

independent productions (or persons appearing to OFCOM to

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

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

15

they think appropriate.

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

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

which the guidance relates.

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

20

approved may include transitional provision for treating a code drawn up

before the imposition of the condition —

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

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

imposed.

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

275.

 283   Regional programme-making for Channels 3 and 5

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

any) that OFCOM consider appropriate in the case of that service for

30

securing—

           (a)           that what appears to OFCOM to be a suitable proportion of Channel 3

programmes made in the United Kingdom are programmes made in

the United Kingdom outside the M25 area;

           (b)           that the Channel 3 programmes that are made in the United Kingdom

35

outside the M25 area (taken together) constitute what appears to

OFCOM to be a suitable range of programmes;

           (c)           that what appears to OFCOM to be a suitable proportion of the

expenditure of the providers of Channel 3 services on Channel 3

programmes made in the United Kingdom is referable to programme

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production at different production centres outside the M25 area; and

           (d)                         that the different programme production centres to which that

expenditure is referable constitute what appears to OFCOM to be a

suitable range of such production centres.

     (2)    In the case of a national Channel 3 service, subsection (1) requires the inclusion

45

of conditions in the licence for the service only where OFCOM consider, having

regard to the nature of the service, that it would be appropriate for conditions

falling within that subsection to be so included.

 

 

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

    257

 

     (3)    The regulatory regime for Channel 5 includes the conditions that OFCOM

consider appropriate for securing—

           (a)           that what appears to OFCOM to be a suitable proportion of the

programmes made in the United Kingdom for viewing on that Channel

are programmes made in the United Kingdom outside the M25 area;

5

           (b)           that the programmes for such viewing that are made in the United

Kingdom outside the M25 area (taken together) constitute what

appears to OFCOM to be a suitable range of programmes;

           (c)           that what appears to OFCOM to be a suitable proportion of the

expenditure of the provider of Channel 5 on programmes made in the

10

United Kingdom for viewing on that Channel is referable to

programme production at different production centres outside the M25

area; and

           (d)           that the different programme production centres to which that

expenditure is referable constitute what appears to OFCOM to be a

15

suitable range of such production centres.

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

person on whom it is to be imposed.

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

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

20

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

variation).

     (6)    In this section—

                    “Channel 3 programmes” means programmes made for viewing on

Channel 3 in more than one area for which regional Channel 3 services

25

are provided, including any programme made for viewing on a

national Channel 3 service other than a regional programme;

                    “expenditure”, in relation to a programme, means—

                  (a)                 expenditure which constitutes an investment in or is otherwise

attributable to the making of the programme; or

30

                  (b)                 expenditure on the commissioning or other acquisition of the

programme or on the acquisition of a right to include it in a

service or to have it broadcast;

                    “programme” does not include an advertisement; and

                    “regional programme” means a programme made with a view to its

35

inclusion in a national Channel 3 service as a programme of particular

interest to persons living within a particular area of the United

Kingdom.

 284   Regional programmes on Channel 3

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

40

conditions that OFCOM consider appropriate for securing—

           (a)           that what appears to OFCOM, in the case of that service, to be a

sufficient amount of time is given in the programmes included in the

service to what appears to them to be a suitable range of programmes

(including regional news programmes) which are of particular interest

45

to persons living within the area for which the service is provided;

           (b)           that the regional programmes included in the service are of high

quality;

 

 

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

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           (c)           that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the regional programmes included in the service consists

of programmes made in that area;

           (d)           that the regional news programmes included in the service are

broadcast for viewing at intervals throughout the period for which the

5

service is provided and, in particular, at peak viewing times;

           (e)           that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the other regional programmes that are included in the

service consists of programmes broadcast for viewing—

                  (i)                 at peak viewing times; and

10

                  (ii)                at times immediately preceding or following those times.

     (2)    The regulatory regime for every local Channel 3 service includes the conditions

that OFCOM consider appropriate for securing—

           (a)           that what appears to OFCOM, in the case of that service, to be a

sufficient amount of time is given in the programmes included in the

15

service to what appears to them to be a suitable range of local

programmes;

           (b)           that, in the case of each part of an area or each community for which the

service is provided, the range of local programmes is a range of

programmes (including news programmes) which are of particular

20

interest to persons living within that part of that area or to that

community;

           (c)           that the local programmes included in the service are of high quality;

           (d)           that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the local programmes included in the service consists of

25

programmes made in the area for which the service is provided;

           (e)           that the local news programmes included in the service are broadcast

for viewing at intervals throughout the period for which the service is

provided and, in particular, at peak viewing times;

           (f)           that what appears to OFCOM, in the case of that service, to be a suitable

30

proportion of the other local programmes that are included in the

service consists of programmes broadcast for viewing—

                  (i)                 at peak viewing times; and

                  (ii)                at times immediately preceding or following those times.

     (3)    In the case of a local Channel 3 service, the conditions included in the

35

regulatory regime for the service include conditions falling within subsection

(1) to the extent only that it appears to OFCOM that the requirements of

subsection (1) are not adequately met by conditions falling within subsection

(2).

     (4)    In the case of a national Channel 3 service in the case of which OFCOM

40

consider that it would be appropriate to impose conditions under this

subsection, the regulatory regime for the service includes the conditions that

OFCOM consider appropriate for securing—

           (a)           that what appears to OFCOM, in the case of that service, to be a

sufficient amount of time is given in the programmes included in the

45

service to what appears to them to be a suitable range of programmes

(including regional news programmes) which are of particular interest

to persons living within particular areas of the United Kingdom;

           (b)           that the regional programmes included in the service are of high

quality;

50

 

 

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

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           (c)           that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the regional programmes included in the service consists

of programmes made in the area by reference to which they are

regional programmes;

           (d)           that the regional news programmes included in the service are

5

broadcast for viewing at intervals throughout the period for which the

service is provided and, in particular, at peak viewing times;

           (e)           that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the other regional programmes that are included in the

service consists of programmes broadcast for viewing—

10

                  (i)                 at peak viewing times; and

                  (ii)                at times immediately preceding or following those times.

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

person on whom it is to be imposed.

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

15

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

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

variation).

     (7)    In this section—

                    “local Channel 3 service” means a regional Channel 3 service the

20

provision of which includes the provision (in pursuance of a

determination under section 14(3) of the 1990 Act) of different

programmes for different parts of an area or for different communities

living within an area;

                    “local programme”, in relation to a service provided for different parts of

25

an area or for different communities, means a programme included in

that service for any of the parts of that area or for any of those

communities, and “local news programme” is to be construed

accordingly;

                    “peak viewing time”, in relation to a service, means a time determined by

30

OFCOM to be, or to be likely to be, a peak viewing time for that service;

                    “programme” does not include an advertisement;

                    “regional programme”—

                  (a)                 in relation to a regional Channel 3 service, means a programme

included in that service with a view to its being of particular

35

interest to persons living within the area for which the service is

provided;

                  (b)                 in relation to a national Channel 3 service, means a programme

included in that service with a view to its being of particular

interest to persons living within a particular area of the United

40

Kingdom;

                         and “regional news programme” is to be construed accordingly.

 285   Regional programme-making for Channel 4

     (1)    The regulatory regime for Channel 4 includes the conditions that OFCOM

consider appropriate for securing—

45

           (a)           that what appears to OFCOM to be a suitable proportion of

programmes made in the United Kingdom for viewing on Channel 4

are programmes made in the United Kingdom outside the M25 area;

 

 

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

    260

 

           (b)           that the programmes for such viewing that are made in the United

Kingdom outside the M25 area (taken together) constitute what

appears to OFCOM to be a suitable range of programmes;

           (c)           that what appears to OFCOM to be a suitable proportion of the

expenditure of C4C on programmes made in the United Kingdom for

5

viewing on Channel 4 is referable to programme production at

different production centres outside the M25 area; and

           (d)                         that the different programme production centres to which that

expenditure is referable constitute what appears to OFCOM to be a

suitable range of such production centres.

10

     (2)    Before imposing a condition under this section, OFCOM must consult C4C.

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

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

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

variation).

15

     (4)    In this section—

                    “expenditure”, in relation to a programme, means—

                  (a)                 expenditure which constitutes an investment in or is otherwise

attributable to the making of the programme; or

                  (b)                 expenditure on the commissioning or other acquisition of the

20

programme or on the acquisition of a right to include it in a

service or to have it broadcast; and

                    “programme” does not include an advertisement.

 286   Regional matters in the public teletext service

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

25

that OFCOM consider appropriate for securing that the service includes what

appears to them to be an appropriate proportion of material that is of particular

interest to persons living in different parts of the United Kingdom.

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

teletext service comprises both—

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           (a)           an analogue teletext service, and

           (b)           a teletext service provided in digital form,

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

Networking arrangements for Channel 3

 287   Proposals for arrangements

35

     (1)    An application for a regional Channel 3 licence, in addition to being

accompanied by the proposals mentioned in section 15(3)(b) of the 1990 Act,

must be accompanied by the applicant’s proposals for participating in

networking arrangements.

     (2)    OFCOM may publish general guidance to applicants for regional Channel 3

40

licences as to the kinds of proposals which they are likely to consider

satisfactory.

     (3)    The publication of guidance under subsection (2) is to be in such manner as

OFCOM consider appropriate.

 

 

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

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     (4)    Arrangements are networking arrangements for the purposes of this Part if

they—

           (a)           apply to all the holders of regional Channel 3 licences;

           (b)           provide for programmes made, commissioned or acquired by or on

behalf of one or more of the holders of such licences to be available for

5

broadcasting in all regional Channel 3 services; and

           (c)                         are made for the purpose of enabling regional Channel 3 services (taken

as a whole) to be a nationwide system of services which is able to

compete effectively with other television programme services provided

in the United Kingdom.

10

 288   Obligation as to making and continuance of approved arrangements

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

conditions that OFCOM consider appropriate for securing that the licence

holder does all that he can to ensure that approved networking arrangements

are in force whenever—

15

           (a)           the licence holder is providing the licensed service; and

           (b)           no networking arrangements imposed by OFCOM under section 289

are in force.

     (2)    In this section “approved networking arrangements” means networking

arrangements which are for the time being approved by OFCOM in accordance

20

with Schedule 11.

     (3)    In paragraph 5 of Schedule 2 to the Competition Act 1998 (c. 41) (exclusion of

networking arrangements from Chapter I prohibition), for sub-paragraph (1)

there shall be substituted—

                       “(1)                The Chapter I prohibition does not apply in respect of any

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networking arrangements to the extent that they—

                    (a)                   have been approved for the purposes of licence conditions

imposed under section 288 of the Communications Act 2003;

or

                    (b)                   are arrangements that have been considered under Schedule

30

4 to the Broadcasting Act 1990 and fall to be treated as so

approved;

                                       nor does that prohibition apply in respect of things done with a view

to arrangements being entered into or approved to the extent that

those things have effect for purposes that are directly related to, and

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necessary for compliance with, conditions so imposed.”

     (4)    For sub-paragraph (4) of that paragraph there shall be substituted—

                       “(4)                In this paragraph ‘networking arrangements’ has the same meaning

as in Part 3 of the Communications Act 2003.”

 289   OFCOM’s power to impose arrangements

40

     (1)    This section applies on each occasion on which OFCOM—

           (a)           are proposing to award one or more regional Channel 3 licences; and

           (b)           for that purpose publish a notice under section 15(1) of the 1990 Act.

     (2)    OFCOM must—

 

 

 
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