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Communications Bill


Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    334

 

     (4)    In subsection (3) (duty of OFT to give requested assistance to Competition

Commission)—

           (a)           after the word “Commission”, where it occurs for the first time, there

shall be inserted “or OFCOM”; and

           (b)           after the word “Commission”, where it occurs for the second, third and

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fourth time, there shall be inserted “or (as the case may be) OFCOM”.

     (5)    After subsection (3) there shall be inserted—

           “(3A)              OFCOM shall give the Commission or the OFT—

                  (a)                 such information in their possession as the Commission or (as

the case may be) the OFT may reasonably require to enable the

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Commission or (as the case may be) the OFT to carry out its

functions under this Part; and

                  (b)                 any other assistance which the Commission or (as the case may

be) the OFT may reasonably require for the purpose of assisting

it in carrying out its functions under this Part and which it is

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within the power of OFCOM to give.”

     (6)    In subsection (4) (duty of OFT to give unrequested information to Competition

Commission)—

           (a)           after the word “Commission”, where it occurs for the first time, there

shall be inserted “or OFCOM”; and

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           (b)           after the word “Commission”, where it occurs for the second and third

time, there shall be inserted “or (as the case may be) OFCOM”.

     (7)    After subsection (4) there shall be inserted—

           “(4A)              OFCOM shall give the Commission or the OFT any information in their

possession which has not been requested by the Commission or (as the

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case may be) the OFT but which, in the opinion of OFCOM, would be

appropriate to give to the Commission or (as the case may be) the OFT

for the purpose of assisting it in carrying out its functions under this

Part.”

     (8)    In subsection (5) (duty of OFT and Competition Commission to give requested

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assistance to the Secretary of State) after the word “OFT”, in both places where

it occurs, there shall be inserted “, OFCOM”.

     (9)    In subsection (6) (duty of OFT to give unrequested information to Secretary of

State)—

           (a)           after the word “OFT”, where it occurs for the first time, there shall be

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inserted “and OFCOM”;

           (b)           for the word “its” there shall be substituted “their”; and

           (c)           after the word “OFT”, where it occurs for the second time, there shall be

inserted “or (as the case may be) OFCOM”.

     (10)   In subsection (7) (duty to have regard to information given) for the words “or

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(4)” there shall be substituted “, (3A), (4) or (4A)”.

     (11)   After subsection (7) there shall be inserted—

           “(7A)              OFCOM shall have regard to any information given to them under

subsection (3) or (4); and the OFT shall have regard to any information

given to it under subsection (3A) or (4A).”

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Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    335

 

 380   Advice and information in relation to newspaper mergers

After section 106 of the Enterprise Act 2002 (c. 40) there shall be inserted—

       “106A Advice and information in relation to newspaper mergers

           (1)           The Secretary of State may prepare and publish general advice and

information about the considerations specified in section 58(2A) and

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(2B).

           (2)           The Secretary of State may at any time publish revised, or new, advice

or information.

           (3)           Advice or information published under this section shall be prepared

with a view to—

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                  (a)                 explaining the considerations specified in section 58(2A) and

(2B) to persons who are likely to be affected by them; and

                  (b)                 indicating how the Secretary of State expects this Part to operate

in relation to such considerations.

           (4)           Any advice or information published by the Secretary of State under

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this section shall be published in such manner as the Secretary of State

considers appropriate.

           (5)           In preparing any advice or information under this section, the Secretary

of State shall consult the OFT, OFCOM, the Commission and such other

persons as he considers appropriate.”

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 381   General advisory functions of OFCOM in relation to newspaper mergers

After section 106A of the Enterprise Act 2002 there shall be inserted—

       “106B General advisory functions of OFCOM

           (1)           OFCOM may, in connection with any case on which they are required

to give a report by virtue of section 44A or 61A, give such advice as they

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consider appropriate to the Secretary of State in relation to—

                  (a)                 any report made in such a case by the Commission under

section 50 or 65; and

                  (b)                 the taking by the Secretary of State of enforcement action under

Schedule 7.

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           (2)           OFCOM may, if requested to do so by the Secretary of State, give such

other advice as they consider appropriate to the Secretary of State in

connection with any case on which they are required to give a report by

virtue of section 44A or 61A.

           (3)           OFCOM shall publish any advice given by them under this section but

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advice given by them in relation to a report of the Commission under

section 50 or 65 or related enforcement action shall not be published

before the report itself is published.”

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    336

 

 382   Other general functions of OFCOM in relation to newspaper mergers

After section 119 of the Enterprise Act 2002 there shall be inserted—

“Further provision about newspaper mergers

       119A Other general functions of OFCOM in relation to this Part

           (1)           OFCOM have the function of obtaining, compiling and keeping under

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review information about matters relating to the carrying out of their

functions under this Part.

           (2)           That function is to be carried out with a view to (among other things)

ensuring that OFCOM have sufficient information to take informed

decisions and to carry out their other functions effectively.

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           (3)           In carrying out that function OFCOM may carry out, commission or

support (financially or otherwise) research.

           (4)           Section 3 of the Communications Act 2003 (general duties of OFCOM)

shall not apply in relation to functions of OFCOM under this Part.”

 383   Monitoring role for OFT in relation to newspaper mergers

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After section 119A of the Enterprise Act 2002 there shall be inserted—

       “119B Monitoring role for OFT in relation to newspaper mergers

           (1)           The OFT has the function of obtaining, compiling and keeping under

review information about matters which may be relevant to the

Secretary of State in deciding whether to give a special intervention

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notice mentioning a consideration specified in section 58(2A) or (2B).

           (2)           That function is to be carried out with a view to (among other things)

ensuring that the Secretary of State is aware of cases where, in the

opinion of the OFT, he might wish to consider giving such a notice.

           (3)           That function does not extend to obtaining, compiling or keeping under

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review information with a view to carrying out a detailed analysis in

each case of the operation in relation to that case of the consideration

specified in section 58(2A) or (2B).”

Supplemental provisions of Chapter 2

 384   Enforcement powers in relation to newspaper mergers

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In Schedule 8 to the Enterprise Act 2002 (provision that may be contained in

certain enforcement orders) after paragraph 20 there shall be inserted—

“Newspaper mergers

        20A(1) This paragraph applies in relation to any order—

                    (a)                   which is to be made following the giving of—

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                           (i)                          an intervention notice which mentions a newspaper

public interest consideration; or

                           (ii)                         a special intervention notice which mentions a

consideration specified in section 58(2A) or (2B); and

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    337

 

                    (b)                   to which the consideration concerned is still relevant.

                       (2)                The order may make such provision as the person making the order

considers to be appropriate in all circumstances of the case.

                       (3)                Such provision may, in particular, include provision requiring a

person to do, or not to do, particular things.

5

                       (4)                 Provision made by virtue of this paragraph may, in particular,

include provision—

                    (a)                   altering the constitution of a body corporate (whether in

connection with the appointment of directors, the

establishment of an editorial board or otherwise);

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                    (b)                   requiring the agreement of the relevant authority or another

person before the taking of particular action (including the

appointment or dismissal of an editor, journalists or directors

or acting as a shadow director);

                    (c)                   attaching conditions to the operation of a newspaper;

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                    (d)                   prohibiting consultation or co-operation between

subsidiaries.

                       (5)                This paragraph is without prejudice to the operation of the other

paragraphs of this Schedule in relation to the order concerned.”

 385   Alterations concerning newspaper panel of Competition Commission

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In paragraph 1 of Schedule 7 to the Competition Act 1998 (c. 41) (the

Competition Commission: interpretation), in the definition of “newspaper

merger reference”, for the words from “newspaper”, where it occurs for the

second time, to “Act” there shall be substituted “reference under section 45 of

the Enterprise Act 2002 which specifies a newspaper public interest

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consideration (within the meaning of Part 3 of that Act) or a reference under

section 62 of that Act which specifies a consideration specified in section 58(2A)

or (2B) of that Act”.

 386   Further provision in connection with newspaper mergers

     (1)    Schedule 16 (which contains further amendments in connection with

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newspaper mergers) shall have effect.

     (2)    Sections 276(2) and (3) and 277 of the Enterprise Act 2002 (c. 40) (power to

make transitional and consequential amendments etc.) shall apply in relation

to this Chapter of this Part of this Act and its related repeals as they apply in

relation to that Act.

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     (3)    For the avoidance of doubt, the power conferred by virtue of subsection (2) by

applying section 277 of the Act of 2002 includes the power to modify that Act.

     (4)    Section 399 shall not apply in relation to any power to make an order which is

exercisable by the Secretary of State by virtue of subsection (2).

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

    338

 

Part 6

Miscellaneous and Supplemental

Annual report

 387   Annual report on the Secretary of State’s functions

     (1)    The Secretary of State must prepare and lay before Parliament regular reports

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on the carrying out by him of the functions to which this section applies.

     (2)    This section applies to the Secretary of State’s functions under the following

enactments—

           (a)           this Act;

           (b)           the Office of Communications Act 2002 (c. 11);

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           (c)           the enactments relating to the management of the radio spectrum so far

as not comprised in this Act;

           (d)           the 1990 Act;

           (e)           the 1996 Act.

     (3)    The first report under this section must relate to the period which—

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           (a)           begins with 19th March 2002 (the date of the passing of the Office of

Communications Act 2002); and

           (b)           ends with the period of twelve months beginning with the first date to

be appointed for the purposes of section 2 of this Act.

     (4)    Every subsequent report must relate to the period of twelve months beginning

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with the end of the period to which the previous report related.

     (5)    The obligation under this section to prepare and lay a report before Parliament

is an obligation to do that as soon as reasonably practicable after the end of the

period to which the report relates.

     (6)    Where a report for the purposes of this section relates to a period the whole or

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a part of which falls before the time when the whole of this Act is in force, the

functions referred to in subsection (2) are to be taken as excluding all functions

under the specified enactments that will have ceased to be functions of the

Secretary of State when the whole of this Act is in force.

Review of media ownership

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 388   Review of media ownership

     (1)    It shall be the duty of OFCOM—

           (a)           to carry out regular reviews of the operation, taken together, of all the

provisions to which this section applies; and

           (b)           to send a report on every such review to the Secretary of State.

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     (2)    This section applies to—

           (a)           the provisions of Schedule 2 to the 1990 Act;

           (b)           the provision made by or under Schedule 14 to this Act;

           (c)           the provisions of section 278 of this Act and section 32 of the 1990 Act;

           (d)           whatever provision (if any) has been made under section 280 of this

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Act; and

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

    339

 

           (e)           the provisions of Part 3 of the Enterprise Act 2002 (c. 40) so far as they

relate to intervention by the Secretary of State in connection with

newspapers.

     (3)    The first review must be carried out no more than three years after the

commencement of this section, and subsequent reviews must be carried out at

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intervals of no more than three years.

     (4)    The report to the Secretary of State on a review must set out OFCOM’s

recommendations, in consequence of their conclusions on the review, for the

exercise by the Secretary of State of—

           (a)           his power to make an order under section 344(4);

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           (b)           his powers to make orders under Schedule 14;

           (c)           his powers in relation to news provision; and

           (d)           his powers under sections 44(10), 58(3) and 59(6E) of the Enterprise Act

2002 (c. 40) (newspaper mergers).

     (5)    The Secretary of State’s powers in relation to news provision are his powers to

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make orders under—

           (a)           section 279;

           (b)           section 280; and

           (c)           section 347(3).

     (6)    OFCOM must publish every report sent by them to the Secretary of State under

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

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

Guidelines as to penalties

 389   Penalties imposed by OFCOM

     (1)    It shall be the duty of OFCOM to prepare and publish a statement containing

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the guidelines they propose to follow in determining the amount of penalties

imposed by them under provisions contained in this Act or any other

enactment apart from the Competition Act 1998 (c. 41).

     (2)    OFCOM may from time to time revise that statement as they think fit.

     (3)    Where OFCOM make or revise their statement under this section, they must

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publish the statement or (as the case may be) the revised statement 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.

     (4)    Before publishing a statement or revised statement under this section OFCOM

must consult both—

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           (a)           the Secretary of State, and

           (b)           such other persons as they consider appropriate,

            about the guidelines they are proposing to include in the statement.

     (5)    Before determining how to publish a statement or revised statement under this

section OFCOM must consult the Secretary of State.

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     (6)    It shall be the duty of OFCOM, in determining the amount of any penalty to be

imposed by them under this Act or any other enactment (apart from the

Competition Act 1998) to have regard to the guidelines contained in the

statement for the time being in force under this section.

 

 

Communications Bill
Part 6 — Miscellaneous and Supplemental

    340

 

     (7)           References in this section to penalties imposed by OFCOM under provisions

contained in this Act include references to penalties which the BBC is liable to

pay to OFCOM by virtue of section 196(3).

Disclosure of information

 390   General restrictions on disclosure of information

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     (1)    Subject to the following provisions of this section, information with respect to

a particular business which has been obtained in exercise of a power conferred

by—

           (a)           this Act,

           (b)           the enactments relating to the management of the radio spectrum (so

10

far as not contained in this Act),

           (c)           the 1990 Act, or

           (d)           the 1996 Act,

            is not, so long as that business continues to be carried on, to be disclosed

without the consent of the person for the time being carrying on that business.

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     (2)    Subsection (1) does not apply to any disclosure of information which is made—

           (a)           for the purpose of facilitating the carrying out by OFCOM of any of

their functions;

           (b)           for the purpose of facilitating the carrying out by any relevant person

of any relevant function;

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           (c)           for the purpose of facilitating the carrying out by the Comptroller and

Auditor General of any of his functions;

           (d)           for any of the purposes specified in section 17(2)(a) to (d) of the Anti-

terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings

and investigations);

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           (e)           for the purpose of any civil proceedings brought under or by virtue of

this Act or any of the enactments or instruments mentioned in

subsection (5); or

           (f)           for the purpose of securing compliance with an international obligation

of the United Kingdom.

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     (3)    Each of the following is a relevant person for the purposes of this section—

           (a)           a Minister of the Crown and the Treasury;

           (b)           the Scottish Executive;

           (c)           a Northern Ireland department;

           (d)           the Office of Fair Trading;

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           (e)           the Competition Commission;

           (f)           the Consumer Panel;

           (g)           the Welsh Authority;

           (h)           a local weights and measures authority in Great Britain;

           (i)           any other person specified for the purposes of this subsection in an

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order made by the Secretary of State.

     (4)    The following are relevant functions for the purposes of this section—

           (a)           any function conferred by or under this Act;

           (b)           any function conferred by or under any enactment or instrument

mentioned in subsection (5);

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