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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 5 — Media ownership and control

    308

 

           (a)           they receive notification, in accordance with a condition of the licence

to provide Channel 5, of proposals that may give rise to a relevant

change of control; or

           (b)           a relevant change of control takes place (whether or not that change has

been previously notified to OFCOM).

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     (3)    The review shall be a review of the effects or likely effects, in relation to the

matters mentioned in subsections (4) and (5), of—

           (a)           the change to which the proposals may give rise; or

           (b)           the change that has taken place.

     (4)    The matters mentioned in this subsection are—

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           (a)                         the extent to which time available for broadcasting programmes

included in Channel 5 is allocated to programmes of each of the

following descriptions—

                  (i)                 original productions;

                  (ii)                news programmes; and

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                  (iii)               current affairs programmes;

           (b)                         the extent to which programmes of each of those descriptions that are

included in that Channel are broadcast at peak viewing times.

     (5)           The matters mentioned in this subsection are—

           (a)                         the extent to which programmes made in the United Kingdom that are

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included in the service are programmes made outside the M25 area;

           (b)                         the range of programmes made in the United Kingdom outside that

area that are included in Channel 5;

           (c)                         the extent to which the expenditure of the provider of Channel 5 on

programmes made in the United Kingdom is referable to programme

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production at different production centres outside the M25 area;

           (d)           the range of different such production centres to which that

expenditure is referable.

     (6)    Where OFCOM carry out a review under subsection (2), they must publish a

report of that review—

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           (a)           setting out their conclusions; and

           (b)           specifying any steps which they propose to take under section 351.

     (7)    In this section—

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

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

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attributable to the making of the programme; or

                  (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;

                    “original production” has the same meaning as in section 276;

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                    “peak viewing time”—

                  (a)                 in relation to original productions, means a time determined by

OFCOM for the purposes of section 276 to be a peak viewing

time for Channel 5; and

                  (b)                 in relation to news programmes or current affairs programmes,

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means a time so determined for the purposes of section 277;

                    “relevant change of control” means a change in the persons having control

over—

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 5 — Media ownership and control

    309

 

                  (a)                 a body holding a licence to provide Channel 5; or

                  (b)                 any body which—

                      (i)                     is connected with a body holding such a licence; and

                      (ii)                    is involved, to a substantial extent, in the provision of the

programmes included in that channel, or is likely to

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become so involved.

     (8)    Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act

(restrictions on licence holders) have the same meanings in this section as in

that Part.

 351   Action following review under s. 350

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     (1)    If, on a review under subsection (2) of section 350, it appears to OFCOM that

the relevant change of control is or would be prejudicial to one or more of the

matters mentioned in subsections (4) and (5) of that section, they shall vary the

licence in accordance with subsection (2).

     (2)           The variation—

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           (a)           must be made with a view to ensuring that the relevant change of

control is not prejudicial to any of the matters so mentioned; and

           (b)           must be a variation for the inclusion in the licence of such conditions

relating to any of those matters as they consider appropriate.

     (3)    Subject to subsection (4), any new or varied condition imposed under this

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section in relation to any matter may be more onerous than the conditions

relating to that matter having effect before the relevant change of control.

     (4)    A variation under this section must not provide for the inclusion of a new or

varied condition in a licence unless the new condition, or the condition as

varied, is one which (with any necessary modifications) would have been

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satisfied by the licence holder throughout the twelve months immediately

before the relevant date.

     (5)           In subsection (4) “the relevant date” is the date of the relevant change of control

or, if earlier, the date on which OFCOM exercise their powers under this

section.

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     (6)    A variation of a licence under this section shall be effected by the service of a

notice of the variation on the licence holder.

     (7)    OFCOM are not to serve a notice of a variation under this section unless they

have given the body on whom it is served a reasonable opportunity, after the

publication of the report of the review under section 350, of making

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representations to them about the variation.

     (8)    Where, in a case of a proposed change of control, a notice varying a licence

under this section is served before the change to which it relates takes place, the

variation is not to take effect until the change takes place.

     (9)    A condition included in a licence by a variation under this section may be

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further varied by OFCOM either—

           (a)           with the consent of the licence holder; or

           (b)           in any other case, after complying with the requirements of section

3(4)(b) of the 1990 Act (variation after giving opportunity for

representations by the licence holder).

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Communications Bill
Part 3 — Television and Radio Services
Chapter 5 — Media ownership and control

    310

 

     (10)   Expressions used in this section and section 350 have the same meanings in this

section as in that.

 352   Variation of local licence following change of control

     (1)    The regulatory regime for every local sound broadcasting service provided by

a body corporate includes—

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           (a)           a condition requiring the licence holder to give OFCOM advance

notification of any proposals known to it that may give rise to a relevant

change of control; and

           (b)           a condition requiring the licence holder to provide OFCOM, in such

manner and at such times as they may reasonably require, with such

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information as they consider necessary for the purposes of exercising

their functions under this section and section 353.

     (2)           OFCOM must carry out a review where—

           (a)           they receive notification, in accordance with a condition of a local

sound broadcasting licence, of proposals that may give rise to a

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relevant change of control; or

           (b)           a relevant change of control takes place (whether or not that change has

been previously notified to OFCOM).

     (3)    The review shall be a review of the effects or likely effects, in relation to the

matters mentioned in subsection (4), of—

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           (a)           the change to which the proposals may give rise; or

           (b)           the change that has taken place.

     (4)           Those matters are—

           (a)           the quality and range of programmes included in the service;

           (b)           the character of the service;

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           (c)           the extent to which OFCOM’s duty under section 310 is performed in

relation to the service.

     (5)    The matters to which OFCOM must have regard in determining for the

purposes of this section the character of a local sound broadcasting service,

include, in particular, the selection of spoken material and music in

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programmes included in the service.

     (6)           Where OFCOM carry out a review under subsection (2), they must publish a

report of that review—

           (a)           setting out their conclusions; and

           (b)           specifying any steps which they propose to take under section 353.

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     (7)    In this section “relevant change of control” means a change in the persons

having control over—

           (a)           a body holding the licence to provide a local sound broadcasting

service; or

           (b)           any body which—

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                  (i)                 is connected with a body holding such a licence; and

                  (ii)                is involved, to a substantial extent, in the provision of the

programmes included in the service provided under that

licence, or is likely to become so involved.

     (8)    Expressions used in this section and in Schedule 2 to the 1990 Act (restrictions

45

on licence holders) have the same meanings in this section as in that Schedule.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 5 — Media ownership and control

    311

 

 353         Action following review under s. 352

     (1)    If, on a review under section 352, it appears to OFCOM that the relevant change

of control is or would be prejudicial to one or more of the matters mentioned

in subsection (4) of that section, they must vary the local licence in accordance

with subsection (2).

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     (2)           The variation—

           (a)           must be made with a view to ensuring that the relevant change of

control is not prejudicial to any of the matters so mentioned; and

           (b)           must be a variation for the inclusion in the licence of such conditions

relating to any of those matters as they consider appropriate.

10

     (3)    Subject to subsection (4), any new or varied condition imposed under this

section in relation to any matter may be more onerous than the conditions

relating to that matter having effect before the relevant change of control.

     (4)    A variation under this section must not provide for the inclusion of any new or

varied condition in a licence unless the new condition, or the condition as

15

varied, is one which (with any necessary modifications) would have been

satisfied by the licence holder throughout—

           (a)           the three months immediately before the relevant date; or

           (b)           such other three month period as has been notified under subsection

(5).

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     (5)    If OFCOM consider that the performance of the licence holder during the three

month period immediately preceding the relevant date is not typical of his

performance during the twelve months before the relevant date they—

           (a)           may determine that subsection (4) is to apply by reference to such other

three month period falling within those twelve months as they may

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determine; and

           (b)           must notify any determination under this subsection to the licence

holder.

     (6)    In subsection (4) “the relevant date” is the date of the relevant change of control

or, if earlier, the date on which OFCOM exercise their powers under this

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section.

     (7)    A variation of a licence under this section shall be effected by the service of a

notice of the variation on the licence holder.

     (8)    OFCOM are not to serve a notice of a variation under this section unless they

have given the body on whom it is served a reasonable opportunity, after the

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publication of the report of the review under section 352, of making

representations to them about the variation.

     (9)    Where, in a case of a proposed change of control, a notice varying a licence

under this section is served before the change to which it relates takes place, the

variation is not to take effect until that change takes place.

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     (10)   A condition included in a licence by a variation under this section may be

further varied by OFCOM either—

           (a)           with the consent of the licence holder; or

           (b)           in any other case, after complying with the requirements of section

86(5)(b) of the 1990 Act (variation after giving opportunity for

45

representations by the licence holder).

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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     (11)   Expressions used in this section and section 352 have the same meanings in this

section as in that.

Meaning of control

 354   Meaning of “control”

     (1)    In paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act (control where a

5

person will be able, without having at least a 50 per cent. interest in it, to have

the affairs of a body conducted in accordance with his wishes)—

           (a)           for “will be able” there shall be substituted “would (if he chose to) be

able in most cases or in significant respects”; and

           (b)           for “the affairs” there shall be substituted “affairs”.

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     (2)    It shall be the duty of OFCOM to publish guidance setting out their intentions

concerning the inclusion of particular matters in the matters that they will take

into account when determining whether a person has control of a body, within

the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act.

     (3)    OFCOM may from time to time revise the guidance issued by them under this

15

section.

     (4)    OFCOM must publish the guidance and, where they revise it, the revised

guidance in such manner as they consider appropriate for bringing it to the

attention of the persons who, in their opinion, are likely to be affected by it.

Chapter 6

20

Other provisions about television and radio services

Annual report on television and radio

 355   Annual factual and statistical report

     (1)    It shall be the duty of OFCOM—

           (a)           as soon as practicable after the end of the period of twelve months

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beginning with the commencement of this section, and

           (b)           as soon as practicable after the end of every subsequent period of

twelve months,

            to satisfy for that period the review and reporting requirements of this section.

     (2)    For any period those obligations are—

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           (a)           to carry out a review of the provision of the television and radio

services available for reception by members of the public in the United

Kingdom during that period; and

           (b)           to prepare a factual and statistical report for that period on the

provision of those services and on the state of the market in which they

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are provided.

     (3)    In carrying out a review for any period under this section, OFCOM must

consider, in particular, each of the following—

           (a)           the extent to which programmes included during that period in

television and radio services are representative of what OFCOM

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consider to be the principal genres for such programmes;

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

    313

 

           (b)           the extent to which codes made by OFCOM under this Part or Part 4 or

5 of the 1996 Act (listed events and fairness) have been complied with

during that period;

           (c)           the extent to which any guidance given by OFCOM under section 310

has been followed during that period;

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           (d)           any trends appearing or operating during that period in the size and

behaviour of the audience for radio and television services;

           (e)           the financial condition during that period of the market in which those

services are provided and of the market in which programmes for such

services are produced;

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           (f)                         what it is appropriate to achieve by conditions and duties under section

275 and paragraphs 1 and 7 of Schedule 12 and the effectiveness for that

purpose of the conditions and duties for the time being in force;

           (g)                         whether it would be appropriate to recommend to the Secretary of State

that he exercises any of his powers under that section or those

15

paragraphs;

           (h)                         the extent to which work on independent productions (within the

meaning of that section and those paragraphs) that are produced in the

United Kingdom is done in a range of production centres outside the

M25 area;

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           (i)           any issues relating to intellectual property in programmes that have

arisen or been of significance during that period;

           (j)           developments in technology that have occurred or become important

during that period and are relevant to the provision, broadcasting or

distribution of television and radio programmes;

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           (k)           the availability during that period of persons with skills that are used

or likely to be useful in connection with the provision of television and

radio services and the production of programmes for inclusion in such

services;

           (l)           the availability during that period of facilities for the provision of

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training in such skills.

     (4)    Every report under this section must set out OFCOM’s findings on their

consideration of the matters mentioned in subsection (3).

     (5)    Every report prepared by OFCOM under this section must be published by

them—

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           (a)           as soon as practicable after its preparation is complete; and

           (b)           in such manner as they consider appropriate.

     (6)    OFCOM’s duties under this section are in addition to their duties under section

262.

Grants for access radio

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 356   Grants to access radio providers

     (1)    OFCOM may make such grants as they consider appropriate to the provider of

any service of a description of service in relation to which provision is for the

time being in force under section 260.

     (2)    A grant made under this section may be made on such terms and conditions,

45

and shall become repayable to OFCOM in such circumstances, as may be

specified by OFCOM when making the grant.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

    314

 

     (3)    A person is not—

           (a)           by reason of the making to him of a grant under this section, or

           (b)           by reason of any terms or conditions (including any provisions for

repayment) subject to which such a grant is or has been made to him,

            to be a disqualified person by virtue of any provision of Schedule 2 to the 1990

5

Act in relation to an access radio licence.

     (4)    In subsection (3) “access radio licence” means a licence under Part 3 of the 1990

Act, or under Part 2 of the 1996 Act, which is granted in accordance with any

provision made by an order under section 260 of this Act.

Supplemental provisions of Part 3

10

 357   Amendments of the 1990 and 1996 Acts

     (1)    In section 201 of the 1990 Act (programme services), in subsection (1)—

           (a)           for paragraphs (a) to (bb) there shall be substituted—

                        “(aa)                           any service which is a programme service within the

meaning of the Communications Act 2003;”

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           (b)           in paragraph (c), for “a telecommunication system” there shall be

substituted “an electronic communications network (within the

meaning of the Communications Act 2003)”.

     (2)    For subsection (2) of that section there shall be substituted—

           “(2A)              Subsection (1)(c) does not apply to so much of a service consisting only

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of sound programmes as—

                  (a)                 is a two-way service (within the meaning of section 246(4) of the

Communications Act 2003);

                  (b)                 satisfies the conditions in section 246(5) of that Act; or

                  (c)                 is provided for the purpose only of being received by persons

25

who have qualified as users of the service by reason of being

persons who fall within paragraph (a) or (b) of section 246(7) of

that Act.

           (2B)              Subsection (1)(c) does not apply to so much of a service not consisting

only of sound programmes as—

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                  (a)                 is a two-way service (within the meaning of section 230 of the

Communications Act 2003);

                  (b)                 satisfies the conditions in section 231(5) of that Act; or

                  (c)                 is provided for the purpose only of being received by persons

who have qualified as users of the service by reason of being

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persons who fall within paragraph (a) or (b) of section 231(7) of

that Act.”

     (3)    Schedule 15 (which makes minor and consequential amendments of the 1990

Act and the 1996 Act for purposes connected with the other provisions of this

Chapter) shall have effect.

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 358   Meaning of “available for reception by members of the public”

     (1)    The services that are to be taken for the purposes of this Part to be available for

reception by members of the public include (subject to subsection (2)) any

service which—

 

 

 
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