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Communications Bill


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

    277

 

 311   Variations of radio multiplex licences affecting service characteristics

For subsection (6) of section 54 of the 1996 Act (variations of radio multiplex

licence affecting service characteristics) there shall be substituted—

           “(6)              Where the licence holder applies to OFCOM for the variation of a

condition which—

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                  (a)                 was imposed under subsection (1)(b), and

                  (b)                 relates to the characteristics of digital sound programme

services to be broadcast under the licence,

                         then (subject to subsections (6A) and (6B)) OFCOM must vary the

condition in accordance with the application.

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           (6A)              OFCOM are not to vary a national radio multiplex licence in

accordance with an application under subsection (6) if it appears to

them that, if the application were granted, the capacity of the digital

sound programme services broadcast under the licence to appeal to a

variety of tastes and interests would be unacceptably diminished.

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           (6B)              OFCOM are to vary a local radio multiplex licence in accordance with

such an application only if they are satisfied—

                  (a)                 that the variation would not unacceptably narrow the range of

programmes available by way of local digital sound

programme services to persons living in the area or locality for

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which the licensed multiplex service is provided;

                  (b)                 that the variation would be conducive to the maintenance or

promotion of fair and effective competition in that area or

locality; or

                  (c)                 that there is evidence that, amongst persons living in that area

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or locality, there is a significant demand for, or significant

support for, the change that would result from the variation.”

Competition between licensed providers etc.

 312   Conditions relating to competition matters

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

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any) that OFCOM consider appropriate for ensuring fair and effective

competition in the provision of licensed services or of connected services.

     (2)    Those conditions must include the conditions (if any) that OFCOM consider

appropriate for securing that the provider of the service does not—

           (a)           enter into or maintain any arrangements, or

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           (b)           engage in any practice,

            which OFCOM consider, or would consider, to be prejudicial to fair and

effective competition in the provision of licensed services or of connected

services.

     (3)    A condition imposed under this section may require a licence holder to comply

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with one or both of the following—

           (a)           a code for the time being approved by OFCOM for the purposes of the

conditions; and

           (b)           directions given to him by OFCOM for those purposes.

     (4)    In this section—

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

    278

 

                    “connected services”, in relation to licensed services, means the provision

of programmes for inclusion in licensed services and any other services

provided for purposes connected with, or with the provision of,

licensed services; and

                    “licensed service” means a service licensed by a Broadcasting Act licence.

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 313   Exercise of Broadcasting Act powers for a competition purpose

     (1)    This section applies to the following powers of OFCOM (their “Broadcasting

Act powers”)—

           (a)           their powers under this Part of this Act and under the 1990 Act and the

1996 Act to impose or vary the conditions of a Broadcasting Act licence;

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           (b)           every power of theirs to give an approval for the purposes of provision

contained in the conditions of such a licence;

           (c)           every power of theirs to give a direction to a person who is required to

comply with it by the conditions of such a licence; and

           (d)           every power of theirs that is exercisable for the purpose of enforcing an

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obligation imposed by the conditions of such a licence.

     (2)    Before exercising any of their Broadcasting Act powers for a competition

purpose, OFCOM must consider whether a more appropriate way of

proceeding in relation to some or all of the matters in question would be under

the Competition Act 1998 (c. 41).

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     (3)    If OFCOM decide that a more appropriate way of proceeding in relation to a

matter would be under the Competition Act 1998, they are not, to the extent of

that decision, to exercise their Broadcasting Act powers in relation to that

matter.

     (4)           If OFCOM have decided to exercise any of their Broadcasting Act powers for a

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competition purpose, they must, on or before doing so, give a notification of

their decision.

     (5)    A notification under subsection (4) must—

           (a)           be given to such persons, or published in such manner, as appears to

OFCOM to be appropriate for bringing it to the attention of the persons

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who, in OFCOM’s opinion, are likely to be affected by their decision;

and

           (b)           must describe the rights conferred by subsection (6) on the persons

affected by that decision.

     (6)    A person affected by a decision by OFCOM to exercise any of their

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Broadcasting Act powers for a competition purpose may appeal to the

Competition Appeal Tribunal against so much of that decision as relates to the

exercise of that power for that purpose.

     (7)    Sections 190(3) to (8), 193 and 194 apply in the case of an appeal under

subsection (6) as they apply in the case of an appeal under section 190(2).

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     (8)    The jurisdiction of the Competition Appeal Tribunal on an appeal under

subsection (6) excludes—

           (a)           whether OFCOM have complied with subsection (2); and

           (b)           whether any of OFCOM’s Broadcasting Act powers have been

exercised in contravention of subsection (3);

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            and, accordingly, those decisions by OFCOM on those matters fall to be

questioned only in proceedings for judicial review.

 

 

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

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     (9)    For the purposes of this section a power is exercised by OFCOM for a

competition purpose if the only or main reason for exercising it is to secure that

the holder of a Broadcasting Act licence does not—

           (a)           enter into or maintain arrangements, or

           (b)           engage in a practice,

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            which OFCOM consider, or would consider, to be prejudicial to fair and

effective competition in the provision of licensed services or of connected

services.

     (10)   Nothing in this section applies to—

           (a)           the exercise by OFCOM of any of their powers under sections 287 to 291

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or Schedule 11;

           (b)           the exercise by them of any power for the purposes of any provision of

a condition included in a licence in accordance with any of those

sections;

           (c)           the exercise by them of any power for the purpose of enforcing such a

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condition.

     (11)   In subsection (9) “connected services” and “licensed service” each has the same

meaning as in section 312.

     (12)   References in this section to the exercise of a power include references to an

exercise of a power in pursuance of a duty imposed on OFCOM by or under an

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enactment.

 314   Review of powers exercised for competition purposes

     (1)    It shall be the duty of OFCOM, at such intervals as they consider appropriate,

to carry out a review of so much of each of the following as has effect for a

competition purpose—

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           (a)           every code made or approved by them under or for the purposes of a

broadcasting provision;

           (b)           the guidance issued by them under or for the purposes of broadcasting

provisions; and

           (c)           every direction given by them under or for the purposes of a

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broadcasting provision.

     (2)    Before modifying or revoking, or withdrawing their approval from, anything

which is subject to periodic review under this section, OFCOM must consult

such persons as they consider appropriate.

     (3)    Subsection (2) applies irrespective or whether the modification, revocation or

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withdrawal is in consequence of a review under this section.

     (4)    For the purposes of this section a provision has effect for a competition purpose

to the extent that its only or main purpose is to secure that the holder of a

Broadcasting Act licence does not—

           (a)           enter into or maintain arrangements, or

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           (b)           engage in a practice,

            which OFCOM consider, or would consider, to be prejudicial to fair and

effective competition in the provision of licensed services or of connected

services.

     (5)    In this section “broadcasting provision” means—

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           (a)           a provision of this Part of this Act, of the 1990 Act or of the 1996 Act, or

 

 

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

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           (b)           any provision of a Broadcasting Act licence,

            other than provision contained in any of sections 287 to 291 of this Act or

Schedule 11 to this Act.

Programme and fairness standards for television and radio

 315   OFCOM’s standards code

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     (1)    It shall be the duty of OFCOM to set, and from time to time to review and

revise, such standards for the content of programmes to be included in

television and radio services as appear to them best calculated to secure the

standards objectives.

     (2)    The standards objectives are—

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           (a)           that persons under the age of eighteen are protected;

           (b)           that material likely to encourage or to incite the commission of crime or

to lead to disorder is not included in television and radio services;

           (c)           that news included in television and radio services is presented with

due impartiality and that the impartiality requirements of section 316

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are complied with;

           (d)           that news included in television and radio services is reported with due

accuracy;

           (e)           that the proper degree of responsibility is exercised with respect to the

content of programmes which are religious programmes;

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           (f)           that generally accepted standards are applied to the contents of

television and radio services so as to provide adequate protection for

members of the public from the inclusion in such services of offensive

and harmful material;

           (g)           that the inclusion of advertising which may be misleading, harmful or

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offensive in television and radio services is prevented;

           (h)           that the unsuitable sponsorship of programmes included in television

and radio services is prevented;

           (i)           that there is no undue discrimination between advertisers who seek to

have advertisements included in television and radio services; and

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           (j)           that there is no use of techniques which exploit the possibility of

conveying a message to viewers or listeners, or of otherwise

influencing their minds, without their being aware, or fully aware, of

what has occurred.

     (3)    The standards set by OFCOM under this section must be contained in one or

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more codes.

     (4)    In setting or revising any standards under this section, OFCOM must have

regard, in particular and to such extent as appears to them to be relevant to the

securing of the standards objectives, to each of the following matters—

           (a)           the degree of harm or offence likely to be caused by the inclusion of any

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particular sort of material in programmes generally, or in programmes

of a particular description;

           (b)           the likely size and composition of the potential audience for

programmes included in television and radio services generally, or in

television and radio services of a particular description;

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

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           (c)           the likely expectation of the audience as to the nature of a programme’s

content and the extent to which the nature of a programme’s content

can be brought to the attention of potential members of the audience;

           (d)           the likelihood of persons who are unaware of the nature of a

programme’s content being unintentionally exposed, by their own

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actions, to that content;

           (e)           the desirability of securing that the content of services identifies when

there is a change affecting the nature of a service that is being watched

or listened to and, in particular, a change that is relevant to the

application of the standards set under this section; and

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           (f)           the desirability of maintaining the independence of editorial control

over programme content.

     (5)    OFCOM must ensure that the standards from time to time in force under this

section include—

           (a)           minimum standards applicable to all programmes included in

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television and radio services; and

           (b)           such other standards applicable to particular descriptions of

programmes, or of television and radio services, as appear to them

appropriate for securing the standards objectives.

     (6)    Standards set to secure the standards objective specified in subsection (2)(e)

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shall, in particular, contain provision designed to secure that religious

programmes do not involve—

           (a)           any improper exploitation of any susceptibilities of the audience for

such a programme; or

           (b)           any abusive treatment of the religious views and beliefs of those

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belonging to a particular religion or religious denomination.

     (7)    In setting standards under this section, OFCOM must take account of such of

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

may notify to them for the purposes of this section.

     (8)    In this section “news” means news in whatever form it is included in a service.

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 316   Special impartiality requirements

     (1)    The requirements of this section are—

           (a)           the exclusion, in the case of television and radio services (other than a

restricted service within the meaning of section 243), from programmes

included in any of those services of all expressions of the views or

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opinions of the person providing the service on any of the matters

mentioned in subsection (2);

           (b)           the preservation, in the case of every television programme service,

teletext service, national radio service and national digital sound

programme service, of due impartiality, on the part of the person

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providing the service, as respects all of those matters;

           (c)           the prevention, in the case of every local radio service, local digital

sound programme service or radio licensable content service, of the

giving of undue prominence in the programmes included in the service

to the views and opinions of particular persons or bodies on any of

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those matters.

     (2)    Those matters are—

           (a)           matters of political or industrial controversy; and

 

 

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

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           (b)           matters relating to current public policy.

     (3)    Subsection (1)(a) does not require—

           (a)           the exclusion from television programmes of views or opinions relating

to the provision of programme services; or

           (b)           the exclusion from radio programmes of views or opinions relating to

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the provision of programme services.

     (4)    For the purposes of this section—

           (a)           the requirement specified in subsection (1)(b) is one that (subject to any

rules under subsection (5)) may be satisfied by being satisfied in

relation to a series of programmes taken as a whole;

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           (b)           the requirement specified in subsection (1)(c) is one that needs to be

satisfied only in relation to all the programmes included in the service

in question, taken as a whole.

     (5)    OFCOM’s standards code shall contain provision setting out the rules to be

observed in connection with the following matters—

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           (a)           the application of the requirement specified in subsection (1)(b);

           (b)           the determination of what, in relation to that requirement, constitutes a

series of programmes for the purposes of subsection (4)(a);

           (c)           the application of the requirement in subsection (1)(c).

     (6)    Any provision made for the purposes of subsection (5)(a) must, in particular,

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take account of the need to ensure the preservation of impartiality in relation

to the following matters (taking each matter separately)—

           (a)           matters of major political or industrial controversy, and

           (b)           major matters relating to current public policy,

            as well as of the need to ensure that the requirement specified in subsection

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(1)(b) is satisfied generally in relation to a series of programmes taken as a

whole.

     (7)    In this section “national radio service” and “local radio service” mean,

respectively, a sound broadcasting service which is a national service within

the meaning of section 243 and a sound broadcasting service which is a local

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service within the meaning of that section.

 317   Objectives for advertisements and sponsorship

     (1)    Standards set by OFCOM to secure the objectives mentioned in section

315(2)(a), (g) and (h)—

           (a)           must include general provision governing standards and practice in

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advertising and in the sponsoring of programmes; and

           (b)           may include provision prohibiting advertisements and forms and

methods of advertising or sponsorship (whether generally or in

particular circumstances).

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

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programme services do not include—

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

objects are wholly or mainly of a political nature;

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

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

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

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

include each of the following—

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

United Kingdom or elsewhere;

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

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Kingdom or elsewhere, or otherwise influencing the legislative process

in any country or territory;

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

governments, whether in the United Kingdom or elsewhere;

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

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

of a country or territory outside the United Kingdom;

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

conferred by or under international agreements;

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

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is a matter of public controversy;

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

in the United Kingdom or elsewhere, for political ends.

     (4)    OFCOM—

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

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with respect to advertisements and methods of advertising and

sponsorship; and

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

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

OFCOM to impose requirements with respect to any of those matters

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

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

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

programme services; and

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

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

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

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

direction.

     (7)    Provision included by virtue of this section in standards set under section 315

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

programme service of—

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

a government department; or

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

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which is required by a condition imposed under section 329 or by

paragraph 18 of Schedule 12 to this Act.

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

BBC.

 318   Supplementary powers relating to advertising

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

 

 

 
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